If you have issues viewing or accessing this file, please contact us at NCJRS.gov. Mistaken Identification Y~~ %AW ® ® 4 S BRIAN L. CUTLER IlL STEVEN D. PENROD • J Mistaken identification Mistaken identification The eyewitness, psychology, and the law BRIAN L. CUTLER Florida International University STEVEN D. PENROD University of Nebraska-Lincoln NCJRS :! JAN ]i? 1906 ~ t ? ACQUISiTiONS ~ CAMBRIDGE UNIVERSITY PRESS Published by the Press Syndicate of the University of Cambridge The Pitt Building, Trumpington Street, Cambridge CB2 1RP 40 West 20th Street, New York, NY 10011-4211, USA l0 Stamford Road, Oakleigh, Melbourne 3166, Australia © Cambridge University Press 1995 First published 1995 Printed in the United States of America Library of Congress Cataloging-in-Publication Data Cutler, Brian L. Mistaken identification : the eyewitness, psychology, and the law / Brian L. Cutler, and Steven D. Penrod. p. ca. Includes bibliographical references and index. ISBN 0-521-44553-1 (hc). - ISBN 0-521-44572-8 (pbk.) 1. Eyewitness identification - United States. 2. Criminals - United States - Identification. 3. Psychology, Forensic. I. Penrod, Steven. II. Title. KF9672. C87 1995 363.2'58 - dc20 94-45187 CIP A catalog record for this book is available from the British Library. ISBN 0-521-44553-1 Hardback ISBN 0-521-44572-8 Paperback Contents The authors vii Preface ix Part I Introduction 1 Eyewitness identification errors Part II Eyewitnesses, expert psychologists, and the law 2 The admissibility of expert testimony on the psychology of eyewitness identification 19 3 Eyewitness experts in the courts of appeal 27 Part III Sources of identification error: The scientific research 4 The scientific psychology of eyewitness identifications 55 5 Summarizing eyewitness research findings 71 6 Factors that influence eyewitness accuracy: Witness factors 79 7 Factors that influence eyewitness accuracy: Perpetrator, event, and postevent factors 97 8 The effects of suggestive identification procedures on identification accuracy 113 Part IV Is the attorney an effective safeguard against mistaken identification? 9 Trial counsel, the eyewitness, and the defendant 139 10 Attorney sensitivity to factors that influence eyewitness identification accuracy 159 vi Part V Is the jury an effective safeguard against mistaken identification? 11 Lay knowledge about sources of eyewitness unreliability 171 12 The ability of jurors to differentiate between accurate and inaccurate eyewitnesses 181 13 Jury sensitivity to factors that influence eyewitness reliability 197 Part VI Is the eyewitness expert an effective safeguard against mistaken identification? 14 Expert testimony and its possible impacts on the jury 213 15 Improving juror knowledge, integration, and decision-making 225 16 Court-appointed and opposing experts: Better alternatives? 243 Part VII Is the judge an effective safeguard against mistaken identification? 17 Instructing the jury about problems of mistaken identification 255 18 A postscript 265 References 269 Name index 283 Subject index 287 The authors Brian L. Cutler is Associate Dean and Associate Professor of Psychology, Florida International University. He earned his Ph.D. from the University of Wisconsin in 1987 and joined the faculty at Florida International University later that year. He was awarded the 1988 dissertation award from the American Psychology-Law Society for his research on jury decision making in eyewitness identification cases. He has published over 35 articles on eyewitness testimony and jury decision making in psychology and law journals and has presented his research at regional, national, and international conferences. Steven D. Penrod is Professor of Psychology and Professor of Law, University of Nebraska-Lincoln. He earned his J.D. from Harvard Law School in 1974 and his Ph.D. in psychology from Harvard University in 1979. He joined the faculty of the psychology department of the University of Wisconsin in 1979, became a professor of law at the University of Minnesota Law School in 1988, and in 1995 joined the faculty at the University of Nebraska-Lincoln as director of the Psychology-Law Program. He received an early-career award in applied psychology from the American Psychological Association in 1986 and has published over 50 articles on eyewitness reliability and jury decision making. He is an author of a book on juries and two textbooks. vii Preface The day on which this preface is written marks, almost to the day, the beginning of a collaboration between graduate student and mentor that can be described as a research roller coaster that shows little sign of slowing and no sign of ending. At the outset of our collaboration our mission was, and remains, to advance the academic and legal communities' understanding of the factors that influence eyewitness identification and how best to protect suspects and defendants from the consequences of mistaken eyewitness identification. This monograph represents our attempt to summarize and integrate the research we and others have conducted on these topics. Most of the research described in this book has been published in psychology and interdisciplinary scientific journals. A substantial portion has also been reviewed in other volumes. Whereas our journal articles are primarily written for scholars of law-psychology, this volume is meant for consumption by a wider audience, including lawyers, judges, professors of law, academic psychologists who do not follow law-psychology research, and graduate and undergraduate students in the social sciences and law. Our goal is not to provide a comprehensive summary of eyewitness research or even of research on eyewitness identification. Rather, we focus on the specific questions that have served as the unifying themes in our collaborative research program: eyewitness identification and the effectiveness of legal safeguards in eyewitness cases. For a more general review of eyewitness research, interested readers may wish to consult Ross, Read, and Toglia (1994). In reviewing research on eyewitness identification and legal safeguards, we have tried to provide readers with the gist of the research findings as well as to acquaint readers with the methodology commonly employed in law- psychology research, for understanding the methodology is critical to evaluating the research conclusions. Where possible, we give detailed examples of specific studies. These studies were not chosen because they represent the best quality or most accurate research. They were chosen because they well illustrate the approaches adopted by law-psychology researchers. ix x Preface It is our hope that the research reviewed in this book will be useful for a variety of purposes: advancing our scientific understanding of eyewitness identification; informing policymakers, judges, lawyers, and police officers about policy considerations and practical aspects of eyewitness identification; and stimulating more research on these important topics. We will not be surprised if readers are sometimes frustrated with our inability to reach firm conclusions. As with any young academic enterprise, research on some of the topics we consider is sparse, the methodology is sometimes imprecise, and much research work remains to be done. Thus, we will be satisfied if this book acquaints practitioners and students with the enterprise of law-psychology research and whets their appetites for more. Our research has benefited from the valuable contributions of our colleagues, including fellow professors, graduate students, and undergraduate students. Particularly helpful were Peter Shapiro, Carol Krafka, James Coward, Hedy Red Dexter, Todd Martens, Thomas O'Rourke, Ronald Fisher, and Douglas Narby. Many additional graduate and undergraduate students provided important assistance and we thank them sincerely. Preparation of this volume was greatly aided by the services of WESTLAW of West Publishing Company. Funding for our research was provided by the National Science Foundation (SES-8411721 to Steven Penrod; SBR-9320960 and SES-8911146 to Brian Cutler) and the National Institute of Justice (84-IJ-CX-0010 to Steven Penrod). We thank the Minneapolis Star Tribune for permission to reproduce materials in Chapter 1. We are also indebted to Florida International University and the Universities of Wisconsin and Minnesota for their support for this research. Finally, we wish to dedicate this volume to Reuben and Elaine Cutler and Rachel Penrod. Part I Introduction Eyewitness identification errors Convicted burglar Jerome Thomas Clepper had tried to go straight. But his rural Pine City body shop was failing. He needed cash, one way or another. His solution pulled Shaun Deckinga into a nightmare. On December 15, 1992, at the Forest Lake State Bank, Clepper opened a brown accordion folder wide enough for the teller to see that it contained a black semiautomatic pistol. After she stuffed $13,370 into the folder, he walked casually from the bank and vanished. One month later, using the same method, Clepper robbed Norwest Bank in Two Harbors of $2,395. "I want to make a withdrawal," he told the teller as he showed her the gun. He struck again two weeks later, on Jan. 29, this time at the Lakeside branch of St. Louis Bank for Savings, in Duluth, where he got $3,545. That night, Duluth TV stations ran blurry bank pictures from the robberies. At 10:20 p.m., as news turned to weather, someone called the Duluth Police Department anonymously and told the desk sergeant that the robber on the news looked like Shaun