Encyclopedia of Psychology and Law

eyewitness, and the tendency of eyewitnesses to choose

suspects from a lineup previously encountered in mug

shot arrays. Other factors agreed on by a majority of

experts included the impact of alcohol on the eyewit-

ness, the difficulty in making identifications of perpe-

trators not of the same race as the eyewitness, and the

reduction in false identifications due to the use of

sequential rather than simultaneous lineups. Other phe-

nomena that were supported by at least two thirds of the

experts included the inferior accuracy of the child eye-

witness when compared with the adult eyewitness, the

potential for misleading memories recovered from

childhood, and how the use of similar foils (here foil

refers to an innocent person in a police lineup) in a

lineup increases eyewitness accuracy.

The Opinions of Judges

Although individual jurors are ultimately responsible

for interpreting the testimony of an expert witness and

applying their insight to the facts of the case at hand,

judges alone determine whether the expert witness

meets the Daubert criteria for inclusion in the trial.

Judges, like jurors, may rely on common sense when

interpreting eyewitness evidence in the absence of for-

mal psychological training. Eyewitness identification

errors have been cited in many cases of wrongful con-

viction, although a survey reported that only 43% of

judges believed that such errors have been made in

half of the reported cases of wrongful conviction.

However, not all evidence is discouraging. Survey

data on judges’ knowledge and beliefs about eyewit-

ness factors revealed that while judges may agree cor-

rectly with statements on eyewitness issues, these

same individuals report that the average juror would

not be likely to respond correctly. A modest correla-

tion (r=.30) was reported between a judge’s knowl-

edge of eyewitness factors and the willingness of the

judge to admit expert testimony.

Agreement between judges and experts was observed

on less than half (40%) of 30 eyewitness factors, which

included (but were not limited to) the role of attitudes

and expectations, the cross-race effect, and the impact

of exposure time. Judges were in agreement with

experts on less than half (37%) of the listed system

variables, including the malleability of an eyewitness’s

confidence, the biasing effects of showup lineups, and

what constitutes a fair lineup. Judges were not in

agreement with experts regarding the phenomenon of

hypnotic suggestion. When data collected from a 2004

survey of judges were compared with the results of

experts in a previous survey, judges and experts agreed

on 7 of 8 items.

The Opinions of Jurors

If a case is tried by a jury, the jurors serve as the ulti-

mate arbiter of fact in the courtroom, and they must

decide not only on whether case-relevant eyewitness

factors should be taken into consideration during delib-

eration but also on what weight should be given when

considering a verdict. The testimony of experts may

serve to allay juror concerns about eyewitness phenom-

ena. Nearly three quarters of respondents in one survey

replied that their primary aim as an expert witness was

to educate the jury. Thankfully, few researchers reported

that they would be willing to testify in court regarding

an eyewitness factor on which the published literature

was “inconclusive.” In contrast, approximately three

quarters of those experts who regarded the evidence as

“generally reliable” and a plurality of those who saw it

as “very reliable” were willing to testify about these

factors. Ninety-five percent of these surveyed experts

believed that expert testimony on eyewitness issues had

a positive impact on juries.

There was correspondence between experts and

jurors on only 4 of the 30 survey statements (13%). As

expected, significant differences in the rates of agree-

ment emerged between experts and jurors on the

statements focusing on factors classified as system vari-

ables, such that jurors were less in agreement about

the eyewitness factor than the experts. The four eye-

witness factors that experts and jurors did agree on

were statements regarding the effects that violence,

alcohol, and stress have on an eyewitness and the fact

that trained observers are not more accurate witnesses

than untrained people. The largest discrepancies

observed between experts and jurors were found for

statements regarding lineup instructions and hypnotic

suggestibility, with jurors expressing significantly

less agreement about those eyewitness factors than

experts. Juror accuracy (50.7%) differed significantly

from the level of accuracy seen among judges and law

enforcement personnel when accuracy was defined as

agreement with those statements to which at least

75% of experts agree.

Other Evidence

Understanding the general acceptance of eyewitness

factors among law enforcement personnel is criti-

cal in that members of this population draw their

Eyewitness Identification: General Acceptance in the Scientific Community——— 293

E-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 293