Psychologist Helps Juries Judge Eyewitness Accounts of Crimes

Jurors often are asked to make decisions that hinge on eyewitness testimony. A growing number of defense attorneys are putting psychologists on the stand to warn a jury that eyewitness accounts often are flawed due to the excitement of witnessing a crime or, later, the process by which the witness is asked to identify a suspect. Psychologist Robert W. Shomer of Encino has testified as an expert on eyewitnesses in more than 300 cases during the past 20 years. He was interviewed by Times correspondent Kurt Pitzer.

Question: People seeing something and later testifying about it seems to be one of the things justice systems have always been based on. Is there something wrong with that?

Answer: There’s nothing wrong with it. It’s necessary. The problem is that it has to be looked at in the appropriate way.

Q. How is that?

A. All perception is selective. All perception is influenced by what we think. We’re not passive recording machines like cameras. It’s an illusion to think that people are detached, objective observers, especially when they’re at the focus of a robbery or some other event that can be very dangerous.

Q. How accurate is eyewitness identification?

A. It’s accurate if you know the person, you’ve seen them repeatedly over a long period of time in a variety of settings. The epitome of that is a high school reunion: Ten, 20 years later, you can be pretty accurate picking out somebody that you knew for a number of years. You may see them at this reunion across a crowded room in dim lighting and catch only a corner of their face and be pretty sure that’s the person.

Q. Is there a way of gauging what percentage of eyewitnesses are accurate?

A. No. Because we have no ultimate way of knowing whether they are accurate or not. I don’t ever come to court and say whether anybody’s right or wrong, because I have no way of knowing.

Q. What’s the basis for your thinking that eyewitnesses are often wrong?

A. Actually, the best source of information is often court personnel, police officers and anyone who has ever examined how people do this in the legal sense. Police officers know that they often get reports from people that are highly at variance with what was going on.

But there’s also been a hundred years of experimental psychology and experimental social psychology that bears directly on the behavior and the abilities of eyewitnesses.

Q. What type of criminal cases do you testify in most?

A. The typical criminal case involves a situation where there is not substantial independent corroborative evidence--things like fingerprints, the takings of a robbery--something that ties the person with evidence other than eyewitness identification.

Q. Do you testify in criminal cases only?

A. I also testify in civil cases. For example: Was the car over the line? Was the light red or green? Who was the driver?

Q. So you’re usually called in when the case involves mostly eyewitness accounts?

A. Exactly. If there’s substantial corroboration, the jury has a lot of other factors they can consider.

Q. Have you ever been called to the stand to testify for the prosecution?

A. I’ve never testified for the prosecution, but I have been a consultant to prosecutors while they are preparing their case.

Q. Do you think there are a lot of people who have been convicted wrongly, based on eyewitness identification?

A. I know there are a significant number. That’s my feeling. I don’t have any data to back that up. But there is data that’s been accumulated in England, for example, that, of hundreds of cases, 74% of cases based only on eyewitness identification obtained conviction.

Q. Are there certain situations in which a witness is more likely to be mistaken?

A. Sure. Those would be situations where there’s something more important going on than looking at the person and taking in the details of their face for later identification. Those circumstances would be, “Give me your money or it will be your life” at the point of a gun or other situations that are life-threatening.

Q. Is race a factor in a witness’s ability to identify someone?

A. The way I put it is that you can be most accurate recognizing somebody who looks like you. Race is just one of those things that helps us codify or put a label on somebody. And once you put a label on, you tend not to look as closely.

Q. What about during the identification process -- are there circumstances that can confuse a witness after the crime?

A. Yes. Those factors would be if the procedure used is suggestible and not fair, such as a situation in which law enforcement presents the alternative as though they believe that’s the person who committed the crime.

Q. For example?

A. For example, if the police ask, “Is this the guy who did it?” That’s a very leading and suggestive kind of remark. If that comes on top of, “We just caught this guy,” and they show the person a coat that was actually connected to the crime, and then they show the guy they caught without anything on--no shirt, no coat, the witness is likely to make a connection that is not based on memory.

Q. Do you think that’s happening less now?

A. I think so. I think jurors and the community are becoming more sophisticated about concepts like suggestibility and the frailties of memory. And what’s happened is that police departments have become more sensitive also--no more of what has been called the “corridor lineup,” where they walk the witness down the corridor and bump him into the defendant going the other way.

Q. Is this a relatively new thing, bringing in experts to talk about the perceptions of witnesses?

A. I don’t think it’s a new thing at all. In the United States there are studies that have been published back in the 1890s about a psychologist who went into court to testify about witness testimony. The department chairman at Harvard back in the 1910s testified in court.

Q. Is it more prevalent now?

A. I think it’s receiving somewhat more attention, as more and more cases come up of mistaken eyewitness identification. For example, there was a Supreme Court case in California in 1984 that said, in cases where eyewitness identification is a critical aspect of the case, and there’s not other things like fingerprints and so on, you should have an eyewitness expert involved.

Q. Weren’t you . . . ?

A. That was a case involving me, and it was a reversal of a murder conviction prior to 1984.

Q. Aren’t there also going to be cases in which a guy like you comes in and the end result is that someone who committed a crime gets let off?

A. Sure, it can happen. A guilty person uses all the aspects of the justice system and gets acquitted because the state cannot prove its case beyond a reasonable doubt. And that’s a cost to us all. But what’s the alternative? The alternative is the person is guilty until they can prove their innocence. And we’ve deliberately chosen, in this country, not to do it that way.

Q. In a case like the Rodney King beating, where the whole thing was videotaped, what is the role of eyewitness accounts -- should they take a back seat?

A. No, I think it is important evidence. I think there is no way around it. People who have been there, especially if they have nothing to gain, their testimony has to be part of the legal process. The point I’m making is that it must be evaluated in the appropriate way.

Q. What can eyewitnesses add in a case like that?

A. They add emotion. To see pain of that order being inflicted on another human being is very difficult. The human witnesses put a human touch on it.