A Judge's Guidance Makes Jurors Suspicious Of Any Eyewitness

Jan 26, 2016
Originally published on January 26, 2016 1:30 pm

The state of New Jersey has been trying to help jurors better assess the reliability of eyewitness testimony, but a recent study suggests that the effort may be having unintended consequences.

That's because a new set of instructions read to jurors by a judge seems to make them skeptical of all eyewitness testimony — even testimony that should be considered reasonably reliable.

Back in 2012, New Jersey's Supreme Court did something groundbreaking. It said that in cases that involve eyewitness testimony, judges must give jurors a special set of instructions. The instructions are basically a tutorial on what scientific research has learned about eyewitness testimony and the factors that can make it more dependable or less so.

"The hope with this was that jurors would then be able to tell what eyewitness testimony was trustworthy, what sort wasn't, and at the end of the day it would lead to better decisions, better court outcomes, better justice," says psychologist David Yokum.

Yokum was a graduate student at the University of Arizona, doing research on decision-making, when he and two colleagues, Athan Papailiou and Christopher Robertson, decided to test the effect of these new jury instructions, using videos of a mock trial that they showed to volunteers.

The fictional trial involved a robbery and murder at a convenience store. Actors played all the roles, including an eyewitness. And the researchers made two versions of this trial that differed only in the quality of the eyewitness testimony.

One had testimony that would be considered strong, according to the New Jersey instructions. The other had eyewitness testimony that was much more sketchy. "Imagine a best- and a worst-case scenario," explains Yokum. "We deliberately designed the video that way."

For example, police departments frequently ask eyewitnesses to identify a suspect using a photo lineup. The New Jersey instructions say it is best if the photos are shown to the witness by a police officer who doesn't know which one is the suspect.

"The concern there is that if an officer knows who is in the photo lineup, they might accidentally give some sort of hint to the person about who it is," says Yokum.

So, in their video with the strong eyewitness testimony, the officer didn't know who was who. But in the video with the weaker testimony, he did. There were other differences as well, such as the number of photos in the lineup.

After watching one of these videos, volunteer jurors either did or did not hear the long New Jersey instructions. And then the juror had to decide. Guilty as charged?

"We found that the instruction had an effect," says Yokum. People who heard about the science of eyewitness testimony were much less likely to convict the defendant.

That was true regardless of whether the eyewitness testimony was high-quality or low-quality, says Yokum, suggesting that the instructions simply made the jurors suspicious of all such testimony.

The researchers recently published their research in the journal PLOS ONE.

"Whether this is a good or bad thing relative to not having the New Jersey instruction, I think, is kind of an open question," Yokum notes.

Alan Zegas, a criminal defense attorney who handled one of the cases that led to the New Jersey instructions, thinks the finding is definitely a good thing.

"Our criminal justice system, our Constitution, has at its foundation the notion that it is better to let a thousand guilty people go free than to convict an innocent person," says Zegas.

Just look at all the people who have been identified by eyewitnesses and later exonerated through DNA testing, he says, adding that "there should be skepticism of eyewitness testimony."

It's impossible to know what the real-world effect of these instructions has been so far, Zegas says. After all, most cases involve various kinds of evidence, not just identification from an eyewitness. But for those rare cases that really do hinge on eyewitness testimony, he thinks the New Jersey instructions could make a huge difference.

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Transcript

RENEE MONTAGNE, HOST:

Now to crime and punishment in this country and the trouble with eyewitness testimony. People who saw events with their own eyes are compelling but can also be wrong. So courts in New Jersey have tried something new. They have been educating juries on how to judge eyewitness testimony. As NPR's Nell Greenfieldboyce reports, the effort may be having unintended consequences.

NELL GREENFIELDBOYCE, BYLINE: Back in 2012, New Jersey's state Supreme Court did something groundbreaking in an effort to minimize the risk of wrongful convictions. It said when a case involves an eyewitness, judges must give jurors a special set of instructions, basically a tutorial on what scientific research has learned about eyewitness testimony and what makes it more or less reliable.

DAVID YOKUM: And the hope with this was that jurors would then be able to - sort of be able to tell what eyewitness testimony was trustworthy, what sort wasn't, and at the end of the day, it would lead to better decisions, better court outcomes, better justice.

GREENFIELDBOYCE: That's David Yokum. He was doing research into decision-making at the University of Arizona and decided to test the effect of these new jury instructions using videos of mock trials that he showed to volunteers.

(SOUNDBITE OF VIDEO)

UNIDENTIFIED MAN #1: Please be seated. Court is now in session.

GREENFIELDBOYCE: He and his colleagues made up a fictional trial, a robbery and murder at a convenient store. Actors played all the roles, including an eyewitness.

(SOUNDBITE OF VIDEO)

UNIDENTIFIED MAN #2: Mrs. Dun, is the person you saw rob the quick-stop convenience store in the room at this time?

MRS. DUN: Yes, he is.

UNIDENTIFIED MAN #2: Can you please point to this person?

DUN: Yes, that's him over there.

GREENFIELDBOYCE: They made two versions of this video. One had eyewitness testimony that would be considered strong, according to the New Jersey instructions. The other had eyewitness testimony that was weak.

YOKUM: Kind of imagine a best and a worst-case scenario, we deliberately designed the video that way.

GREENFIELDBOYCE: Here's one example. Police frequently ask eyewitnesses to identify a suspect using a photo lineup. The New Jersey instructions say it's best if the photos are shown to the witness by a police officer who doesn't know which one is the suspect.

YOKUM: And the concern there is that if an officer knows who is in the photo lineup, they might accidentally give some sort of hint to the person about who it is.

GREENFIELDBOYCE: So in their video with the strong eyewitness testimony, the officer didn't know who was who. But in the video with the weaker testimony, he did. After watching one of these videos, the juror either did or did not hear the long New Jersey instructions. And then the juror had to decide, guilty?

YOKUM: We found that the instruction had an effect, so people that were read from the judge in the New Jersey instruction were much less likely to convict the defendant.

GREENFIELDBOYCE: Yokum says that was true regardless of whether the eyewitness testimony was high quality or low quality. It's as if the instructions made the the jurors suspicious of all eyewitness testimony.

YOKUM: Whether this is, like, a good or a bad thing relative to not having the New Jersey instruction, I think it's kind of an open question.

GREENFIELDBOYCE: Alan Zegas thinks it's a good thing. He's a criminal defense attorney who handled one of the cases that led to the New Jersey instructions.

ALAN ZEGAS: Our criminal justice system, our Constitution has at its foundation the notion that it is better to let a thousand guilty people go free than to convict an innocent person.

GREENFIELDBOYCE: He says look at all the people who've been identified by eyewitnesses and later exonerated through DNA testing.

ZEGAS: There should be skepticism of eyewitness testimony.

GREENFIELDBOYCE: He says it's impossible to know what the real-world effect of these instructions has been so far. After all, most cases involve various kinds of evidence. But for those rare cases that really hinge on eyewitness testimony, the New Jersey instructions could make a huge difference. Nell Greenfieldboyce, NPR News. Transcript provided by NPR, Copyright NPR.