News 09.22.10

Kansas Supreme Court To Consider New Jury Instructions For Hearing Eyewitness Testimony

Despite 30 years of strong social science research proving that eyewitness identification is often unreliable, studies show jurors tend to believe confident witnesses.

With eyewitness misidentification playing a role in more than 75% of convictions overturned through DNA testing nationwide, the Kansas Supreme Court is considering new jury guidelines instructing jurors to judge the certainty of eyewitness accounts when gauging credibility, according to the Associated Press.

“About a quarter of those were convicted on eyewitness testimony, and little else,” said Lawrence Wrightsman, a professor emeritus of psychology at the University of Kansas.

In Kansas, judges may instruct jurors they can gauge credibility on several factors, including “the degree of certainty demonstrated by the witness at the time of any identification.”

Studies show such certainty and confidence tends to influence jurors.

“A victim or a witness takes the stand, and he or she are very sincere and often times very explicit and very confident, and all those are qualities people assume go with accuracy. But they don’t,” Wrightsman said.

“You can find confident people who are not accurate. And you can find people who are hesitant, who are just careful people, and they are very accurate.”

The consideration of new guidelines comes in the wake of a Wichita man’s conviction based on the eyewitness testimony of the victim.

Michael T. Mitchell was convicted in 2007 of aggravated robbery and sentenced to nearly seven years in prison.  Mitchell’s conviction was based largely on a confident witness who identified him in a photo lineup. According to the Associated Press, iIn Mitchell’s case, the jury was given the standard instruction on eyewitness testimony over defense objections.  He has since asked for a new trial.

“If that factor had been rejected as a poor indicator of reliability, it should be removed from the instructions guiding juries,” appellate public defender Ryan Eddinger argued in filings to the Supreme Court.

 “Without experts, all you have is the jury instructions to guide them,” said Michael Kaye, law professor at Washburn University.

“The public needs to know that eyewitnesses are not always right,” he said. “That the court is willing to consider science and other factors shows progressive thinking.”

Kansas isn’t the first state to consider new jury guidelines.  In New York State, the Supreme Court ruled that judges must allow experts to testify on eyewitness reliability when cases rely mostly on eyewitness testimony.


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