Legal & DebateMANIPULATIVE

Eyewitness Suggestibility

What it is

The contamination of an eyewitness's memory through suggestive identification procedures, post-event information, and confirming feedback, so that the witness testifies with confidence to a memory that was shaped after the event.

How it works

Memory is reconstructive, and eyewitness memory is rebuilt every time it is retrieved. Loftus's misinformation work shows that details introduced after an event by a question, a conversation, or a news report are incorporated into the memory and reported later as if seen. Identification procedures add their own suggestion: a lineup in which the suspect stands out, an administrator who knows which person is the suspect and reacts to the witness's gaze, or an instruction implying the culprit is present all push toward a choice. Wells and Bradfield (1998) showed that a single confirming remark after a false identification ("good, you identified the suspect") inflated witnesses' later reports of how certain they had been, how good their view was, and how much attention they had paid, the very factors courts use to judge reliability. Because the contaminated witness is sincere, cross-examination on demeanor finds nothing. The 2014 National Academy report and the 2020 Wells et al. recommendations set out the counter-procedures: double-blind administration, unbiased instructions, fair fillers, and an immediate confidence statement.

Real-world examples

  • •Jennifer Thompson identified Ronald Cotton as her attacker in 1984 with complete confidence after a photo array and a live lineup in which he was the only person to appear in both; DNA testing exonerated Cotton in 1995 after more than a decade in prison, and the two later wrote a book together about how the confidence was built.
  • •Wells and Bradfield (1998): participants who made a false identification from a lineup and then heard "good, you identified the suspect" later reported far greater certainty and a better view than those who heard nothing, showing that trial confidence can be manufactured after the fact.
  • •The Innocence Project has reported that mistaken eyewitness identification contributed to roughly seven in ten of the DNA exonerations it tracked in its first decades, more than any other single factor.
  • •The New Jersey Supreme Court in State v. Henderson (2011) reviewed the science and adopted new jury instructions and a framework for pretrial hearings on suggestive identifications; the US Supreme Court in Perry v. New Hampshire (2012) declined to require such hearings absent police-arranged suggestion.

Historical case studies

Ronald Cotton and Jennifer Thompson

1984–1995Wrongful Conviction

Jennifer Thompson studied her rapist's face during the 1984 attack, determined to identify him. She hesitated between two pictures in a photo array before choosing Ronald Cotton, then picked him again, the only person who appeared in both procedures, in a live lineup, and grew more certain with each confirmation. Cotton was sentenced to life plus 54 years. At a retrial she was shown the actual attacker, Bobby Poole, and did not recognize him. DNA testing exonerated Cotton in 1995 after ten and a half years in prison and identified Poole, who pleaded guilty. Thompson and Cotton later campaigned together for lineup reform.

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Loftus and Palmer's car-crash experiment

1974Research

Elizabeth Loftus and John Palmer showed students films of traffic accidents and asked how fast the cars were going when they "smashed into," "collided with," "bumped," "hit" or "contacted" each other. Speed estimates rose with the violence of the verb, from about 32 miles per hour for "contacted" to about 41 for "smashed." A week later, those who had heard "smashed" were more than twice as likely to say they had seen broken glass; the film showed none. The study established that the wording of a question can alter what a witness later remembers, not only what the witness says at the time.

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Ethical guidelines

  • ●There is no legitimate way to suggest a memory to a witness; investigators and lawyers who prepare witnesses must preserve, not shape, the account, and Model Rule 3.4(b) forbids counseling a witness to testify falsely.
  • ●Most contamination is inadvertent, which is why procedure rather than good intention is the safeguard: double-blind lineups, documented confidence statements at the time of identification, and recorded interviews.
  • ●Prosecutors who learn that an identification was obtained through suggestive procedures have a disclosure obligation (Brady v. Maryland) and should evaluate whether the identification can be offered at all.
  • ●Educational; rules vary by jurisdiction; not legal advice.

How to defend against it

  • ►Jurors: weigh the identification by the conditions at the time of the event and the procedure used, not by the witness's confidence on the stand; confidence recorded immediately after an uncontaminated lineup is informative, confidence at trial after months of feedback is not.
  • ►Jurors: ask whether the lineup was run by someone who did not know the suspect, whether the witness was told the culprit might not be present, and whether the fillers matched the description; the absence of these safeguards is a reason to discount the identification.
  • ►Opposing advocates: obtain the identification records and any recordings, move to suppress or for a hearing where procedures were suggestive, request the jurisdiction's eyewitness instruction, and consider a memory expert where the instruction is not enough.
  • ►Witnesses: write down everything you remember as soon as possible, before talking to others or reading coverage; state your confidence level at the moment of any identification; and avoid viewing photos of suspects outside a controlled procedure.

From the Defense Playbook

Take One Fact at a Timetakes practice

When someone leads you through a sequence of short yes-or-no questions toward a conclusion, treat each question as its own item: answer only the fact asked, correct any wording you do not accept, and do not let a string of true answers commit you to a conclusion you were never asked about. (Educational, not legal advice.)

Every playbook entry states how strong its evidence is and when not to use it. Browse the full playbook.

References

  1. Loftus, E. F. (2005). Planting misinformation in the human mind: A 30-year investigation of the malleability of memory. Learning and Memory, 12(4), 361-366 · link
    Review of the misinformation effect: post-event information is incorporated into memory and reported as seen.
  2. Wells, G. L., & Bradfield, A. L. (1998). "Good, you identified the suspect": Feedback to eyewitnesses distorts their reports of the witnessing experience. Journal of Applied Psychology, 83(3), 360-376
    Confirming feedback after a false identification inflates reported confidence, view quality, and attention.
  3. National Research Council (2014). Identifying the Culprit: Assessing Eyewitness Identification. National Academies Press
    Review of the science and recommended procedures: blind administration, unbiased instructions, and immediate confidence statements.
  4. Wells, G. L., Kovera, M. B., Douglass, A. B., Brewer, N., Meissner, C. A., & Wixted, J. T. (2020). Policy and procedure recommendations for the collection and preservation of eyewitness identification evidence. Law and Human Behavior, 44(1), 3-36
    Updated scientific-review recommendations for lineup construction, administration, and confidence recording.
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