Your eyes are so pretty . . .

Really quickly, I want to apologize for not posting much lately. After returning from vacation, the pile of potential blog topics that awaited me was a bit intimidating. Also, Madden ’12 came out last week. At least one of those things kept me from working on blog posts for the past 8 days. Sorry.

Anyhow, on to today’s topic: your eyes. Before I go on to disparage them, I first have to mention that your eyes are the most beautiful shade of [insert eye color] I have ever seen, unparalleled by even [something pretty in nature that is your eye color]. Your dreaminess aside, your eyes are nothing more than pretty little liars, and they frequently conspire with your brain to deceive you.

So, why do I care about this ocular treachery? Partially, it’s because I’ve got your back, and I thought you should know. But mostly, it’s because if you ever witness anything that might turn out to be the subject of a criminal investigation, those spectacular peepers will be allowed and even encouraged to work with your brain (and police) to make up a story that your mouth will then tell police and prosecutors and judges and jurors, and someone will go to jail. Even though we know that your eyes are liars, and we know that they will work with your brain (and police) to deceive you, and we know that your mouth just does what your brain tells it, eyewitness testimony has long been a favorite investigatory technique for police and some of the most damning evidence you could present in a courtroom.

Thankfully, times they are always a changin and occasionally incredibly rarely, the criminal justice system recognizes in itself some horrible flaw and (even more rarely) someone tries to fix it.

This brings me to New Jersey. The Jersey Supremes, on August 24 (I know that is ancient in blogger time), issued a 142-page opinion directed at your eyes and brain. Well, maybe not yours in particular, but at least all the eyes and brains that might appear in court in Jersey.

In Henderson, the court took a long look at eyewitness identification, specifically dealing with police lineups. The court noted that large bodies of research exist that undermine the reliability of techniques used by police to obtain identifications, and more shockingly, decided to do something to curb the “single greatest cause of wrongful convictions in this country.” The court conducts a long analysis of how memory works and agrees with science that human memory is not a video recording but is a “constructive, dynamic, and selective process” and quite susceptible to suggestion and manipulation. The opinion reviews a long list of variables that can affect the reliability of an identification. The court is especially concerned with police suggestiveness tainting the process, as was the situation in Henderson. (In Henderson, the witness was also admittedly a consumer of impressive volumes of crack leading up to the identification.)

So based on the “malleability” of human memory and perception and the likelihood that police can manipulate it, the court decided to make it harder for eyewitness identifications to get into court.  And if an identification is admitted, the court tried to make it so jurors will at least be given sufficient information to judge the identifications for what they are really worth.

I will spare you a lot of details since I cannot possibly do the full opinion justice (it is pretty good reading though), but basically the court raised the standard for admitting identifications and made it much more likely that they would be excluded during pre-trial hearings. The court also explained how lineup techniques should be improved to ensure greater reliability and thus admissibility. They also added jury instructions to help explain to jurors just how fallible the eyes and memory are.

Sadly, the Jersey Supreme seems to be the only court that has seriously considered this issue, and misidentification remains a strong possibility throughout our system.

Several jurisdictions, including Dallas, Texas, have revamped their systems without a court’s demand or at least taken measures to improve the reliability of their police departments’ witness identification methods. As discussed in this NPR story, research has shown which methods, like photo “showups” by the investigating officer, are most subject to police taint. Jurisdictions like Dallas who have enacted reform on their own should have their efforts applauded. However, the vast majority of police oppose these reforms and most departments continue to use the same suggestive methods they have used for decades and will make no changes unless a higher power intervenes.

In November, SCOTUS will hear a witness identification case and hopefully will follow Jersey’s lead and issue a ruling that requires the kind of sweeping reform by police and courts that will help ensure we are convicting people who actually did something illegal. Unfortunately that does not always appear to be the biggest concern of the court, but we will see.

In the meantime keep an eye on your eyes. You can’t trust them for a second (pretty as they may be).


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