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Anatomy of a Civil Trial In dissent, however, Justice Sotomayor emphasized

“… that eyewitness identifications' unique confluence of features--their unreliability,

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powerful impact on the jury, and resistance to the ordinary tests of the adversarial process--can undermine the fairness of a trial.” Id. slip op, Justice Sotomayor, Dissent at 1. Part of the foundation for this conclusion is the substantial research (over two thousand scientific articles) about eyewitness unreliability Id. slip op, Justice Sotomayor Dissent at 22. Justice Sotomayor’s dissent echoes the dissent of Justice

Souter in Strickler v. Greene, 527 U.S. 263 (1999): “What is important is that her [the eyewitness’s] evidence presented a gripping story, see E. Loftus & J. Doyle, Eyewitness Testimony: Civil and Criminal 5 (3d ed. 1997) (‘Research redoundingly proves that the story format is a powerful key to juror decision making’).” Id. at 307. Both Justices cited research by Elizabeth F. Loftus, Ph.

D, Professors in Social Ecology, Law, and Cognitive Science, at the University of California, Irvine, who is a leading researcher and author on memory and influence of post- observation events causing changes in eyewitness testimony. She is known for her work on false memories and has testified as an expert concerning memory4

and eyewitness testimony information about the

eyewitness may come from sources such as depositions or investigation.

Once, during cross-examination, I had an

independent eyewitness to admit that all “those people” of a certain ethnic group drive too fast. Seldom are there resources, however, in an average case to investigate or depose every witness.

Even rarer is that the deposition or investigation

leads to useful impeachment information. In the past ten to thirty years, however, there has been

significant research concerning reliability of eyewitness testimony. In the recent case of Perry v. New Hampshire, 2012 U.S. LEXIS 579, 23 Fla. L. Weekly Fed. S 60 (decided January 11, 2012), the United States Supreme Court considered whether an eyewitness identification of a black male, who was reported to have been breaking into cars in a parking lot, was reliable. By an 8 to 1 vote, the Court ruled that the identification was not procured by the police in a suggestive manner since the witness pointed out her kitchen window at the defendant in the parking lot to identify him as the culprit. Later, the witness was unable to select the defendant from a photo array. In upholding the identification, the Court mentioned the safeguards against misidentification that included cross-

examination by counsel at trial to test witness credibility.3 3 “When no improper law enforcement activity is involved, we hold, it suffices to test reliability

18 Trial Reporter / Spring 2012

reliability. A list of publications by Dr. Loftus and links to some of her articles may be found at http://socialecology.uci. edu/faculty/eloftus/. Not so much has changed since Abraham Lincoln’s

famous reported cross-examination. Eyewitness testimony is convincing and, at the same time, has a reasonable probability of being wrong.

Scientific research supports the doubts

expressed by Justice Sotomayor. Understanding the science behind the way that memories alter the truth of what was observed may assist the cross-examiner to impeach the witness’s story. A witness may be outright lying or may really believe Liars are known to have difficulty

in the version told.

keeping their story straight. A cross-examiner may show inconsistencies. Te witness, however, that is convinced about the truth of what is “remembered” is harder to characterize as in error. Memory research gives insight about the witness who earnestly believes that he or she is telling the “truth” about what the witness saw. Te witness may not know the memories have been altered.

through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.” Perry v. New Hampshire, Slip Opinion at 2, 2012 U.S. LEXIS 579, 23 Fla. L. Weekly Fed. S 60 (decided January 11, 2012).

4 See, e.g., Wiggins v. Boyette, 635 F.3d 116 (4th Cir. 2011). Dr. Loftus testified to the unreliability of the eyewitness testimony based on discrepancies in the witness’s statements.

susceptibility to suggestion,

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