How Can So Many Be Wrong: Making the Due Process Case for an Eyewitness Expert

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Of the 347 U.S. false criminal convictions overturned so far through DNA testing 73% were based on erroneous eyewitness testimony. How could so many eyewitnesses be wrong How Can So Many Be Wrong answers that question. The analysis of the U.S. Supreme Court eyewitness cases shows that most the Courts holdings were likely in error. The Courtlike the judges and juries in the courts belowgreatly overestimated the reliability of eyewitnesses against the defendants and decided their convictions based on unsound evidence. The facts of the cases and personalities of the defendants are engaging, even compelling. An expert is needed to inform the judge and the jury of the circumstances to consider when weighing the testimony of the witness against the facts of the case. It is a clear violation of Due Process to deny the defendant the provision of an expert witness in all cases where the eyewitness testimony lacks corroboration Research assessing both cross-examination and jury instructions makes it abundantly clear that neither can effectively provide courts with the counterintuitive information necessary to evaluate eyewitness reliability. Denial of an expert is denial of Due Process.

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Hagen and Yang offer a thoughtful overview of the state of scientific research on threats to eyewitness reliability, the weaknesses of traditional legal safeguards designed to reduce erroneous convictions in eyewitness cases, and the manner in which expert psychological testimony can help reduce those errors. The authors cleverly reconsider the facts of leading Supreme Court eyewitness cases to demonstrate how attention to scientific research would have enriched the Court's analysis and decision making - a treat for lawyers and judges as well as researchers. -- Steven Penrod, John Jay College of Criminal Justice
Both ordinary jurors and the United States Supreme Court are woefully ignorant of the real perils of eyewitness testimony, as the authors' thorough review of the latest research and the case law demonstrates. How Can So Many Be Wrong ably provides all the elements, both scientific and legal, that trial lawyers need to make a powerful case that expert testimony is required to ensure a fair trial in cases that depend on eyewitness identification. -- Michael Avery, President, National Police Accountability Project

Author Bio

Margaret A. Hagen is professor in the Department of Psychological and Brain Sciences at Boston University. Sou Hee Yang holds a J.D. from Columbia Law School.