Sunday, January 02, 2005

Objection...leading the witness!

The latest issue of Legal Affairs has a piece on New Jersey's reform of procedures for having witnesses identify perpetrators:
In 2001, New Jersey made two major changes to the procedures that govern all state and local identifications. It became the first state to take into account the decades of psychological research that had been devoted to these procedures.... The first was straightforward: To avoid leading the witness, the person running the lineup shouldn't know who the suspect is. The second was a bit less obvious: In a lineup, show the faces one by one instead of all at once to discourage guessing.
I'd say these changes are long overdue. In fact, decades after double blind designs have become standard in medical research, I'm amazed that courts apparently still allow detectives to stand by as suspects are led into a lineup. The sequential approach is interesting too, for reasons explained in the piece. Also discussed is the phenomenon where people are more likely to mis-identify someone of another race than someone of their own race.

I've long been puzzled by the seeming gold-standard status given to eye-witness testimony, as opposed to "circumstantial" evidence. A few years ago I would regularly shake my head when I would hear about court battles over DNA testing where the issue was whether jury could be told that the evidence provided a certainty of "one-in-a-billion" or merely "one-in-a-million." I mean, what do you think you get from an eye-witness...one in twenty? That might be optimistic.

Perhaps the primacy of eye-witness evidence is a common law carry-over from pre-urban times when everyone knew everyone else in the village. People are obviously much more likely to correctly identify people they know rather than strangers.

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