The Problem with Telfaire

The so-called "Telfaire instruction" (from U.S. v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972)) is the most commonly used jury instruction on eyewitness ID in U.S. courts, aimed at alerting jurors to the potential pitfalls of eyewitness evidence. Unfortunately, it is based directly on the flawed and outdated criteria for assessing the reliability of eyewitness evidence set forth in Neil v. Biggers in 1972, which was decided before the majority of eyewitness research now available was conducted, when the entire field was in its infancy. As a result, the instruction often backfires, causing jurors to rely even more heavily on shaky eyewitness testimony, rather than serving its intended purpose of sensitizing them to the factors that tend to make it unreliable.

It opens as follows:

Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? You may take into account both the strength of the identification, and the circumstances under which the identification was made.

Here's the first problem. When a judge instructs a jury to rely on the "strength of the identification," she asks them to consider the confidence of the witness in assessing his or her accuracy. Yet it is well-established among experts that a witness's confidence is "a dubious indicator of eyewitness accuracy even when measured at the time an identification is made." See, e.g., Steven Penrod & Brian Cutler, Witness Confidence and Witness Accuracy: Assessing Their Forensic Relation, 1 Psychol., Pub. Pol., & L. 817 (1995). According to the same article, the more emphasis that is placed on the Telfaire instruction, the more jurors tend to credit eyewitness testimony. That is, "the instruction produced a credulity rather than a skepticism effect." Id. at 833.

The Telfaire instruction continues:

You may also take into account that an identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness.

There's more trouble here. This is true if and only if the lineup is conducted in accordance with best practices, and given that rigid criteria are applied in adhering to the "similar" requirement. Lineup members can quite easily pass a broad interpretation of the "similar" test, by, for example, all belonging to the same race. But the requirements of a good lineup are far more subtle than a generic "similarity" requirement, which juries are not equipped to judge without insight from the research. And as Gary Wells has pointed out, a bad lineup can have the effect of pointing a giant finger at the suspect, while giving the witness heightened (though false) confidence because she "picked" him from a group.

The problems with Telfaire are apparent, and defense lawyers have been urging trial courts to abandon it for some time. As an alternative, researchers recommend detailed instructions that are informed by the findings of social scientists over the last 35 years, since the Biggers factors were identified by the Supreme Court with no scientific basis.

These tailored instructions should include, where applicable, instructions on the cross-race effect, the detrimental effects of stress on eyewitness memory, the weapon-focus effect, the absence of a reliable correlation between confidence and accuracy, and lineup procedures that have been shown to make an identification more or less reliable.

But scientifically accurate jury instructions are not enough. To properly sensitize jurors to the problems with eyewitness testimony and to begin to curb the nationwide wrongful conviction problem due to over-reliance on bad eyewitness evidence, expert testimony is critical. In fact, according to the recent Copeland ruling by the Supreme Court of Tennessee, expert testimony is the only reliable method to ensure that jurors have the necessary tools to assess eyewitness evidence accurately. State v. Copeland, 2007 WL 1498396, *11 ("Research over the past 30 years has shown that expert testimony on memory and eyewitness identification is the only legal safeguard that is effective in sensitizing jurors to eyewitness errors.").

It's time to stop misinforming juries based on the antiquated, unscientific musings of an old Court, and to start letting science into the courtroom at every phase of trial. The Constitution demands it, and the rights of the wrongfully accused depend on it.

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Federal Court Gets ID Science Terribly Wrong, Denies Expert Testimony

In one of the worst eyewitness ID decisions I've read, the US District Court for the Eastern District of Virginia denied expert testimony in US v. White earlier this month, and in the process revealed a substantially flawed comprehension of eyewitness research. US v. White, Slip Copy, 2007 WL 1768718 (E.D.Va. June 15, 2007).

The case involves a police officer as a witness, and despite a wealth of research demonstrating that cops are no better at remembering faces than anyone else -- even when specifically "trained" to do so -- the court relied substantially on that fact in distinguishing this case from other cases in which expert testimony on eyewitness issues had been admitted previously:

First, unlike Lester and other cases admitting expert testimony on eyewitness identification, the eyewitness in the instant case is a trained police officer. Officer Catterton served as a military police officer for the United States Army for six years. He has been trained to be constantly observant of his surroundings, especially the people he encounters on the job. He has been specifically trained to observe and remember the faces he comes across so that they may be later identified. This is in sharp contrast to the participants in Dr. Cutler's cited studies, the majority of whom were college students.

In fact, the specific question of cops vs. college students as eyewitnesses has been studies, and all the evidence shows that trained police are no better at remembering perpetrator identities than random college students. See, for example, a 1998 study by Christianson & Karlsson: Police personnel as witnesses to a violent crime, 3 L. & Crim. Psychol. 59 (1998) (cops are no better at identifying perpetrators than civilian college students). And yet judges continue to rely on this false notion in rendering critical decisions, and in turn juries end up relying on the same false notion in their deliberations, because actual experts are prohibited from testifying to the actual scientific findings that clearly clash with the widely held common sense view.

The police-are-better-witnesses misconception was only the first of the court's errors in rendering this decision.

Confidence and Accuracy

The court also misinterpreted the research on the relationship between the confidence of an eyewitness, and that witness's accuracy. The court characterized the research as showing that "an extremely confident eyewitness is more likely to be accurate than a less confident eyewitness, but only by a modest amount." In fact, the research shows that there is a modest correlation between confidence and accuracy only under very narrow circumstances, more resembling a vacuum than the real world, which rarely occur in actual practice -- namely, if the confidence of a witness is recorded immediately following the identification procedure, and only when no other factors are present to corrupt the witness's perception, such as routine suggestive police practices. In most real-world contexts, there is no correlation between confidence and accuracy, and in some cases even a negative correlation has been observed.

This case was no vacuum. By the time the officer made the identification in this case, he had already been exposed to the strong suggestion of Mr. White's guilt -- he was told that Mr. White had been arrested previously on a similar charge, was suspected of the current charge, and on those grounds the officer requested that his arrest photo be sent over. By the time the officer-witness encountered Mr. White in person, there was little doubt that he would make an identification, regardless of whether or not Mr. White was the actual culprit. There is little question that expert testimony on the lack of correlation between confidence and accuracy would have helped dispel a common misconception in the minds of jurors, and thus enhancing the accuracy of their deliberations.

Cross-Racial IDs, Mugshot Exposure, and Show-Ups

The court went on to deny expert testimony on the cross-race impairment, namely that members of one race are more likely to mis-identify members of another race, despite the fact that the phenomenon is well-documented in the scientific literature and has been shown to be misunderstood by juries.

The court made similar errors with respect to the mugshot commitment effect, and the suggestivity of show-up procedures.

As the exonerations continue to show, juries are going to keep getting it wrong until judges allow science into the courtroom to undo the widely held errors of common sense on the reliability of eyewitness evidence. In the meantime, at least there's Tennessee.

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