Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Sandra Guerra Thompson has an important article in the Marquette Law Review, which you can find at SSRN, about the many problems with eyewitness testimony and the justice system's blindness to those problems. The article begins:
As of this writing, 244 people have been exonerated by means of DNA evidence, most leaving prison cells after many years in prison. These exonerations represent only the "tip of an iceberg" -- the actual numbers of wrongly convicted are undoubtedly much higher. The leading cause of wrongful convictions has been shown to be erroneous eyewitness identifications. Many studies of exonerations find that erroneous eyewitness identifications play a part in over 75% of all wrongful convictions. These studies have led to numerous proposals for reform of police procedures, yet we see surprisingly little progress toward minimizing eyewitness-identification error, a major cause of failure in the criminal justice systems of this country.
And she notes that the legislatures have largely ignored the findings of criminologists, social scientists and experts:
In 1999, the Department of Justice's National Institute of Justice published its influential study of eyewitness identification procedures that included detailed recommended guidelines. Following that effort, several other government and private task forces have followed suit and conducted additional independent studies, yielding similar proposals for reform. Over the past decade, it is fair to say that a growing consensus on state-of-the-art procedures for obtaining eyewitness identifications has emerged among reformers. Such procedures include techniques for reducing suggestion, such as having live lineups and photo arrays conducted by investigators who do not know the identity of the suspect, thus eliminating the possibility that the investigator might unconsciously influence the witness's selection or give the witness confirmatory feedback (e.g., "Good, you picked the right guy.") that has been found to bolster a witness's confidence in the selection. Other recommendations pertain to the manner of viewing a suspect, how witnesses are instructed, and the proper documentation of identification procedures.Reform groups have urged law enforcement to implement the recommended procedures voluntarily. Ten years after the Department of Justice issued its report only a handful of states have adopted any reforms, whether as a matter of state constitutional law, evidence rules, or by statute. A handful of police departments have voluntarily implemented some of the critical reforms. Overall, the vast majority of the thousands of independent law enforcement agencies across the country have made few, if any, changes to the status quo.
The study examined a large range of court decisions where eyewitness testimony and the procedures in place to handle it were challenged. Unfortunately, the courts have also done almost nothing to enforce procedures that minimize false testimony:
This Article presents the findings of an empirical study of recent case law in which defendants challenge the legality of the eyewitness identification procedures. The study involved a review of all cases within the calendar year ending in April 8, 2009 in which state appellate courts issued opinions and in which the suggestiveness of eyewitness identification procedures were challenged. In the cases surveyed, only a small percentage of the police investigations followed any of the recommended procedures and usually not the most critical procedures. The overwhelming majority of departments in the cases surveyed followed the same suggestive procedures that have contributed to misidentifications and wrongful convictions in the past.How did the appellate courts respond to the challenges to the eyewitness identification evidence in these cases? In this study, none of the courts invoked state constitutional law or evidentiary rules to reject the suggestive practices decried by reformers.19 The courts do not exclude eyewitness identification testimony, even when it is obtained under circumstances that have been shown scientifically to be prone to error, nor do they find such testimony insufficient to support a verdict without additional corroborating evidence. Indeed, many of the appellate opinions continue to view the eyewitness's degree of certainty as an indicator of reliability, despite the fact that social science research proves otherwise. Meanwhile, the courts often overlook other indicia of unreliability. Just as in the days before the reform was proposed, the study shows that dubious eyewitness identification evidence continues to be admitted, and appellate courts continue to turn a blind eye to defense challenges based on suggestiveness and unreliability of such evidence. If one read only the recent case law challenging suggestive identification procedures, one might get the impression that the innocence reform movement--and the exoneration of hundreds of innocent persons--never happened.
If eyewitness testimony is the primary evidence in such a huge percentage of the cases where someone was ultimately exonerated by conclusive evidence, there must be a huge number of wrongly convicted people in prison in this country. And the fact that neither the legislatures nor the courts seem the least bit concerned about it is very disturbing.
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I doubt that this will be reformed because many times the eyewitness is also the victim. To ever suggest a victim did anything wrong does not go over well.
Posted by: Mike | December 14, 2009 9:55 AM
Yeah, who are you going to believe, those criminal-loving liberals or your own lying eyes?
I'm not worried about false convictions. If you're the sort of person who gets arrested in the first place, odds are you're guilty of something. 'Assisted' eyewitness evidence ("Isn't that the guy you saw running from the liquor store?") is an excellent tool for jailing criminal types, and I'd hate to see it "reformed".
Posted by: Pat Donohue | December 14, 2009 10:17 AM
Crikey. Even back in my undergrad criminal justice days in the late 80s (1980s, that is), we were told that eyewitness testimony is the most relied upon, yet least reliable, form of evidence. Can't recall if that was in the context of investigation or conviction, but it looks like perhaps not much has changed despite advances in forensic technology.
Posted by: Mandrake | December 14, 2009 10:22 AM
Okay, Pat Donohue has to be a troll. He can't possibly be as much of a fucking idiot as he pretends to be.
Posted by: Ed Brayton | December 14, 2009 10:25 AM
Is there such a thing as a Poe for authoritarians? There is no way Pat could be such a boot-licker and still trip over every authoritarian stereotype.
Posted by: random guy | December 14, 2009 10:33 AM
Pat, if you're not a POE, then you are truly a repugnant excuse for a human being.
Posted by: Josh | December 14, 2009 10:34 AM
Hey Pat, wasn't that you I saw skulking around a daycare center last week in a van with tinted windows?
Not to worry; I'm sure you're guilty of something.
Posted by: DaveL | December 14, 2009 10:35 AM
@Pat,
You are an F'ing moron. Do you have reading comprehension issues or are you a complete jackass? So, you do not believe that people are subject to comfirmation basis, that police are not always on the up-and-up, or that people, "lie"? Eye witness is the worst form of evidence. A proven fact, as stated above, is that proven to be rejected 75% (3 out of every 4) times
You are the reason why I believe "juries of our peers" should be removed from our judicial system in favour of a straight 3 judge panel. You would be the type to convict a black man just because you are "sure that he is guilty of a crime, maybe not the crime that he is on trial for, but some type of crime. Thus, he should be convicted before he goes out and does a more serious crime."
Posted by: DPSisler | December 14, 2009 10:39 AM
It's important to distinguish eyewitness identification of someone the witness knows, from identification of a stranger seen once during the commission of a crime. People are quite good at recognizing other people they know. Of course, that is the less frequent case during criminal prosecution.
Posted by: Russell | December 14, 2009 10:40 AM
Sixty Minutes has turned into the best pro-science general news show I've been encountering over the past couple of years, in spite of Lesley Stahl often being the reporter of these stories.
Here's a story they did several months ago that both illuminates how easy it is for a victim to misidentify a perp, the costs of such misidentification, and how Science explains why misidentifications frequently occur.
Posted by: Michael Heath | December 14, 2009 10:49 AM
Pat,
I know you're only kidding!
I am amazed that everybody else seems to be taking you at face value.
Posted by: felix | December 14, 2009 11:09 AM
Yeah, and never mind that to some people, "All [x-race] people look the same." If you have that inability to distinguish between people, then what how good can your testimony be? After all, if I saw a balding overweight middle-aged white man who hadn't shaved in a few days looking out of a van window at a kindergarten, and then a child was kidnapped from that kindergarten, what's to say that I wouldn't pick you out of the line up of other balding overweight middle-aged white men who haven't shaved in a few days? I mean, you would look shady enough, and at least one of the people standing with you probably was guilty of something, so you must likely be guilty of something, too if they pulled you in to a line-up.
Nevermind, too, the many examples of multiple people providing alibis to a wrongfully convicted person, just because a victim's unreliable witness. If the kindergarten teacher selected you from the line-up, then who would believe your story that you were trolling around this blog when you were allegedly kidnapping a kindergartner.
And based on your own logic, if you were convicted of this hypothetical kidnapping, you should be okay with it, since, If you're the sort of person who gets arrested in the first place, odds are you're guilty of something. ... or would you be a case in which special consideration should be paid?
Posted by: John Yum | December 14, 2009 11:18 AM
I'm pretty sure Pat Donahue is Poe-ing here. The first sentence is the giveaway:
Posted by: xebecs | December 14, 2009 11:23 AM
The reason it will not change soon is because the court system does not care about guilt but about closing the case quickly to look good to the average brain dead voter so they will get reelected and have a good track record for tough on crime. When politics is involved then Guilt is about 5th on the important list.
Posted by: CybrgnX | December 14, 2009 11:33 AM
It's amusing given how many history majors become lawyers that eyewitness testimony became as sacred and idealized as it has. In the history realm, with exception of the elite, you rarely indulged in eyewitness testimony that was not vetted by a professional into another format i.e. taken down in a police report, recorded as trial testimony, or quoted in a newspaper article.
Oral history, or Eyewitness testimony is technical called in history profession only began to gain acceptance in the 1960s and its not completely accepted everywhere. Quite a few of my fellow grad students have to battle to get accepted within their departments for their theses and dissertations.
Of courses, in the criminal field there is rarely any documentary evidence, while historians can find themselves drowning in it.
Posted by: History Punk | December 14, 2009 11:42 AM
Where's Mad The Swine? Pat Donahue is swiftly overtaking him on Poe ratings!
Posted by: sinned34 | December 14, 2009 11:59 AM
@16: I was actually surprised to see Pat Donohue's byline on comment #2 because I was certain while reading it that it was by Mad the Swine!
Posted by: Steve Morrison | December 14, 2009 12:23 PM
I wonder if some of the resistance to change in the court system comes from the fact that it was designed that way.
I mean, the whole method of dealing with criminal evidence was designed in the 18th century. At that point many of the technological (and epistemological) tools we take for granted now hadn't been thought of.
The idea that the evidence should be explicable to a group of people like the defendant has merit; it prevents obscurantism that the Churches used to use ("Hey, let's do the trial in Latin and the poor sod won't know what hit him") and ensures that the verdict is seen as fair. (That's an important point as one sure way to have a society devolve into violence is to convince people that the justice system is unfair).
And the idea that you should have the two sides present the evidence is not bad either -- the whole presumption of innocence is an important feature I would not want to give up.
But I wonder how much of the rigidness is that judges are loath to be seen as changing stuff that seemed to work. Not all judges are elected (I do not think they should be) but I always get a sense that the judges, who aren't any better trained int he sciences than most citizens, are falling behind. Not because they are fools (tho some are) or just heartless bastards, but because a lot of them wouldn't be able to evaluate the social science of eyewitnesses or even the science behind challenging fingerprints. We can all read about it and say "they should change this" but how many of us can really evaluate the data on its merits?
So judges are left in something of a tough spot, it seems to me. This is especially true as the leeway of judges on sentencing and procedure has been eroded over the last thirty years.
I'm not sure how to fix that.
Posted by: Jesse | December 14, 2009 12:35 PM
The old Russian saying comes to mind, "...lying like an eyewitness..."
Posted by: rimpal | December 14, 2009 12:48 PM
While I'd agree that even a very small percentage of an incredibly vast number is still a "huge number," I think there may be a flawed chain of reasoning in the conclusion.
OK, we know that eyewitness testimony plays a part (note: not "is the primary evidence") in 75% of erroneous convictions. The really hard part is estimating the number of erroneous convictions. How do we know that the 244 exonerations quoted in the article are only the tip of the iceberg. How undoubtedly higher might the true number be?
The thing is, if 75% of criminal trials have some eyewitness testimony, then you'd expect it to be involved in 75% of erroneous convictions. That doesn't condemn eyewitness testimony. It condemns trials. And we pretty much can't do without trials ... can we?
Back off now, I'm not suggesting that eyewitnesses are perfectly fine. I'm only suggesting that the conclusions of the article, and Ed's in his final paragraph, are not supported by the evidence presented. The suggestion for double-blind lineups (where the presenter also doesn't know who the suspect is) seems particularly likely to improve the accuracy of outcomes with no apparent downside. One would have to wonder about the motives of anyone who opposed it.
Posted by: ERinSTL | December 14, 2009 1:07 PM
When you consider that everyone commits three felonies a day, the job of the cops is not so much to find and detain criminals so much as to detain the assholes. Assholes are defined to be those whom the cops consider assholes. And once you're on the wrong side of the "justice" system, you're going to have some very bad and very expensive weeks and months.
Posted by: Shawn Smith | December 14, 2009 1:58 PM
ERinSTL--
I suppose in some theoretical sense (the sort of things my logic teachers would have pointed out), it could be that while 75% of wrongful convictions so far identified involved eyewitness testimony, those 75% are all, or even 75%, of the total number of wrongful convictions in which eyewitness testimony was all or part of the reason for conviction.
In the real world, given the relatively small number of cases that are re-examined after conviction, that seems unlikely. What we know about erroneous convictions that have been overturned is that they are disproportionately likely to involve physical evidence, because judges and prosecutors are more comfortable with "here's a kind of evidence we didn't know how to use n years ago" or even "that we didn't have the money for a lab to examine at the time" than with "the police/DA/someone were eager for a conviction, so they got sloppy," much less "so they grabbed the first person they disliked who looked vaguely plausible."
So, yes, I agree that we can't get absolute numbers, but I also agree with Ed's conclusion: eyewitnesses aren't going to be that much more reliable in cases without DNA evidence now available.
Another interesting question is, in how many of the cases would the same conclusion have been reached without the eyewitness testimony? That is, how often does it fit with physical evidence, or with things like the pawnshop owner testifying to being offered this stereo? And how often is it just the eyewitness, with everything else being evidence of a crime, but not tying it to the suspect? (Outside fiction, the defense is seldom going to be "I can't have stolen his stereo because he never had one.")
Posted by: Vicki | December 14, 2009 2:03 PM
From this video, the cop states that just sitting in the defendent's chair puts one strike against you, and most juries will consider it the defendent's job to prove their innocence. It's not fair, it's not the way the law is supposed to work, but it is the way the court system actually works.
Posted by: Shawn Smith | December 14, 2009 3:35 PM
Re Pat Donahue
Unfortunately, the sentiments expressed by Mr. Donahue are all too prevalent in the criminal justice system. It was the late and unlamented Dominic Dunne who said that even of someone was convicted of a crime he/she didn't commit, that individual was probably guilty of other crimes for which he/she was either not suspected or for which there was insufficient evidence for a conviction.
Posted by: SLC | December 14, 2009 5:19 PM
Pat,
You sound like a fucking moron when you make statements like that. Ed I never thought I would say this because I have gotten on you for banning people before but this dude may need to be put on the list. What he stated is fucking crazy.
You have to watch American Violet. You should interview the girl who fought the Texas law on your radio show. It is Jim Crow all over again and voting rights are taken away becuase of "eye witness" testimony. I have said this to you a few times. You have got to watch it it brings this whole issue to life.
Posted by: King of Ireland | December 14, 2009 7:06 PM
I totally agree with you on this Jesse, and the truth is the criminal justice process has not had the necessary input from the social sciences - or has rejected it, I don't know - because eyewitness testimony is only one of the many ways the criminal justice process is based on a faulty understanding of human beings and how they process information.
I studied this stuff in college - even co-authored two papers with a professor - and it is fascinating stuff. Look at the jury of one's peers - that's a fine idea on the surface, but in nearly all courts jury members cannot take notes and are not supposed to analyze the evidence until it is all presented. But human beings are neither tape recorders with perfect recall nor databases into which one can dump information to be processed later, so these courtroom practices inevitably lead to problems with jury decisions - particularly in long and complex trials. Experiments have demonstrated that juries come to fairer decisions when allowed to process information, keep notes, and ask questions of witnesses (typically submitted through the judge to ensure fairness - e.g., questions pertaining to evidence deemed not admissible are screened out). Sadly, very few courts have allowed these practices - and then typically on a judge-by-judge basis.
Of course, my learning about the unreliability of eyewitness testimony meant I was a very bad eyewitness the three times I've been confronted with crime - not only did I only briefly see the perpetrators (and one of them hit me in the eye - any defense attorney would have a field day with any ID in that case), but I knew any identification I'd make would likely be wrong - and no, the cops were not happy to hear that.
I did learn one key factor though - if one is the victim of a crime and sees the criminal, concentrate on what he/she is wearing as opposed to their face, particularly their pants and shoes - they are the hardest to change quickly after a crime. Most of us are much better at identifying style and color of clothing than faces.
Actually, the cross-racial identification problem is very real and makes eyewitness testimony even more suspect when the witness and the criminal are of different ethnicities. The way it was explained in college was as an evolutionary advantage - to ensure one does not mate with close relatives, one needs to analyze the fine points of a person's looks if they resemble you. If you're of widely different ethnicities, though, with very different looks, you can be pretty sure you're not related.
Posted by: CPT_Doom | December 14, 2009 10:32 PM
I can't speak to the history of eye-witness testimony but both Erich Fromm and Michel Foucault noted the play Oedipus as marking a transformation in the juridical system with its increasing emphasis on eye-witness testimony. I don't have a reference for Fromm but for Foucault it was published in Truth and Juridical Forms (only available in English as of 12 years ago). Both writers re-read the Oedipus play against the grain of Freudian psychoanalysis and argued instead for its discussion of how the legal system was undergoing a transformation around the time of its first composition.
What I mean by comment is that since it seems our legal system is based on eye witnesses it seems unlikely to change. That doesn't mean it shouldn't or won't. DNA and other forms of evidence are ways of "seeing" what happens (don't the CSI shows visualize the crime based on their fake technology and the evidence it uncovers?)... so perhaps that's how they enter (or entered) the legal system. Whether it's able to transform it and ultimately trump what a seemingly reliable eye witness has to say.... That's precisely the problem. I wish I had a solution, but I'm not a lawyer nor have I been in law school.
Posted by: Greg | December 15, 2009 12:29 AM
I thought Pat Donohue was the same Pat that Ed likes to spank every now and then (even though that Pat is "obviously" mentally and therefore Ed is a very, very bad man).
Posted by: Valhar2000 | December 15, 2009 6:45 AM
Wow, you guys really don't think this is a classic Poe winky-wink?
Truthfully, I can't keep track of all the Trolls and Poes and Prolls and Toes. If Pat Donahue REALLY believes that shit then he is indeed a twisted fuck.
Posted by: xebecs | December 15, 2009 10:24 AM
Considering how often 'eyewitness' testimony was used to convict black people back in the day, I am actually a bit surprised how reliant courts are still.
All it took was a little convincing to get a few of your buddies to show up and point to someone you didn't like, and off they went to jail.
I wish I were naive enough to think that those days are long gone. Now it probably happens less, but it's the police themselves who also, probably do it most.
Posted by: FastLane | December 15, 2009 11:06 AM
Pat isn't trolling. That's satire, folks. It's well done, too.
Posted by: Samantha Joy | December 15, 2009 12:04 PM
CPT_Doom: That is one of the theories, the other one is that it's just an artifact of the way our brains process information. The fact that the "They all look alike to me!" phenomenon goes away after repeated exposure to the group in question, would argue against it being a matter of evolutionary psychology. I wonder if anyone has done research on, say, black people living in nearly all-white communities, or vice versa, and gotten similar results?
Posted by: Mike Crichton | December 15, 2009 3:52 PM
Posted by: llewelly | December 15, 2009 8:34 PM
Attached is a link to a story in todays' Washington Post about yet another exoneration via DNA analysis. Although the gentleman in question was not convicted by eyewitness testimony, it does highlight other examples of how an innocent man can be convicted. It includes evidence from jailhouse snitches and fraudulent testimony from an FBI trace evidence examiner who falsely testified that the defendant could be identified as the perpetrator via hair analysis.
http://www.washingtonpost.com/wp-dyn/content/article/2009/12/15/AR2009121502360.html?sub=AR
Posted by: SLC | December 16, 2009 8:04 AM