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Perhaps the Eyewitness is Correct!

In various blogs throughout the years, I have discussed the unreliability of eyewitness testimony and of misidentification. However, an article in the Science and Technology section of The Economist (February 24, 2022) entitled “First Impressions”, suggests that eyewitness identification may not always be incorrect.

The article notes it has been a long-held belief that eyewitness identification is unreliable. Indeed, it recites the findings of the  Innocence Project that 70% of the 375 cases it examined, involved misidentification by witnesses. (Id.)

But, at a recent meeting of the American Association for the Advancement of Science, psychologist John Wixted (University of California at San Diego) suggested that “…eyewitness memories…can in fact be very reliable—if they are tested in the right circumstances“ (Id.):

The key to reliability, said Dr Wixted, is the confidence of witnesses in their assessments. Experiments suggest that when witnesses to a simulated crime are confident of having identified the suspect in a later photo line-up, they are almost always correct. Similarly, if they are sure the suspect is not present, that is likely to be right too. Only when a witness is unsure does a risk of misidentification arise. A field study conducted in 2016 by Houston’s police came to similar conclusions. (Id.)

The “catch” is that the identification is trustworthy ONLY the first time the question is asked. Dr. Wixted explained that in the act of asking the question the first time, the memory becomes contaminated so that subsequent answers to subsequent questions become unreliable. Unconsciously, police encouragement or the trauma of facing the accused in court “… can twist subsequent attempts at recollection.” (Id.)

In sum, the best way to test the memory of a witness is to do so fairly and only one time. Whatever the witness stated the first time will, in all probability be the most trustworthy. A subsequent change of mind will most likely lead to an erroneous identification.

The implications of this finding for litigation or for any dispute are far reaching. The first telling of a story will be the accurate one. Thus, when a party tells her story for the very first time, it is probably accurate. All subsequent recitals will have been contaminated by that first telling. So, if the party then meets with an attorney, has her deposition taken, or testifies at a hearing, her subsequent recitals are probably inaccurate having been contaminated unconsciously by her attorney or other factors.

And so, in a way, Dr. Wixted’s research confirms the earlier research that eyewitness testimony and identification are unreliable… at least from the second recital on.

… Just something to think about.


Phyllis Pollack

Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as… MORE

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