Eyewitness Testimony: What Happens When You Do Not See What You Thought You Saw

May 5, 2015

By: Carla Vestal

Earlier this year, there was a dress that had everyone on the internet up in arms, and no, it was not something a reality television person was wearing. The most talked about dress this year was from the online retailer Roman Originals and the question asked was, “What color is the dress?” Some people looked at the image and saw gold and white. Others looked at the dress and saw black and blue. When a picture of the dress was placed in Photoshop, the picture-altering program labeled it as both, white and gold and black and blue! Personally, the picture entertained me for a few hours because sometimes I saw blue and black and other times the alternate. I would look at the picture seeing white and gold, close my eyes, count to three, reopen my eyes and see black and blue.

Other than this image being a cool optical illusion online, I began to question, “How much should you trust your own eyesight?” Or, more importantly, “How much weight should be placed on eyewitness testimony in criminal trials?” Black’s Law Dictionary defines eyewitness testimony as “a statement given under oath by a witness.” Simple enough. But, what if our eyes, like in viewing the now most famous dress of this decade, aren’t as trustworthy as we think they are?

How long have our eyes been playing tricks on us?

Critics have questioned eyewitness testimony as early as the 1900s, and major criminal defense advocates, such as the Innocence Project, claim that “eyewitness misidentification is the greatest contributing factor to wrongful convictions, playing a role in about 75% of convictions overturned through DNA testing nationwide.” The raw numbers indicate some other troubling data. The most current data on wrongful convictions cite that, of the 318 cases overturned, 72% were overturned due to bogus eyewitness testimony. That is an astounding 229 innocent people who have been sentenced to prison because of what later turned out to be erroneous eyewitnesses. And that is not all that happened because of this faulty testimony. While the innocent were serving sentences for crimes they did not commit, the real perpetrators, who have been identified in 90 of these cases, were out committing more crimes: 63 rapes, 17 murders, and 18 other violent crimes.

Do people of different races all look alike?

Our perceptions of people who look differently than we do is called the “cross-race effect.” The cross-race effect asserts that people of the same race are better able to recognize faces of the same race than the faces of people who are of a different race. In a study by Behrman and Davey in 2001, 271 police cases were analyzed and the results showed that people of the same race correctly identified the suspect 65% of the time, whereas, only 45% of the witnesses were able to correctly identify the suspect if the suspect were of another race.[1] The theory behind this disparity is, regardless of race, people share an ingroup advantage with members of the same race. This ingroup advantage allows people of the same race to process facial features of their own group in a more holistic manner than when looking at a person of a different race. When observing a person of a different race, an individual recognizes characteristics that are attributable to that race as a whole. The consequence of this cross-race effect causes disparity when people witness a person of another race committing a crime, because it is more likely that the witness will misidentify the suspect due to the decreased ability of different races to identify the facial characteristics of another race’s face.

The brain does not remember what the eyes see

Vision is composed of three distinct, yet highly interdependent phases: sensation, attention, and perception. The first step of sensation is detecting light and basic shapes. Sensations are ephemeral and a very small amount of what is sensed is perceived. Attention is the process used by the visual system to send selected information that has been sensed for further processing. Perception is when the attended sensations are linked to “environmental cause, made coherent, and categorized through the assignment of meaning, utility, value, and emotional valence.” Memories and emotions from prior experiences also interweave within these new images, adding value and meaning to the individual.[2]

When analyzing how vision works, it is equally important to consider how vision works in relation to distance. People who identified as having “good eyesight” could not see the eyelashes on a person from ten feet away. When 200 feet away, the eyes themselves blur, and at 500 feet, no recognizable facial features can be ascertained. Other factors that have been found to affect the witness include the amount of stress involved, weather conditions, noise levels, and if a weapon had been used.

The memory itself is not stored in one part of the brain, but is recalled through the activation of several parts of the brain that work together. For example, the emotion that a memory brings is stored in one area of the brain, and the content of the memory is stored in another place. Hormones help engrave memories in our brains and then those same hormones categorize new experiences based on old ones. Adding to the matrix of how vision and memory work, “there are between 200 and 400 billion neurons in the brain and each neuron has about 10,000 connections.” Nobel Prize winning neuroscientist Gerald Edelman, Ph.D., sums memory up as the ability to repeat a performance – with mistakes.

How mistakes are added into a memory and how false memories are made

Memory is malleable, so malleable in fact, that studies have shown in studies that memories can be recalled by 25% of people who have never had the experience by mere suggestion and non-verbal clues given by others. Studies show that witnesses will pick the wrong suspect out of a line-up 25% of the time, and when the suspect is absent from the line-up the witnesses will pick an innocent person more than 33% of the time. Witnesses pick-up on nonverbal communication from the officers conducting the line-up when the officer knows the suspect is present, regardless of whether it is the correct person or not. Thus, this solidifies the witness’s choice and the witness becomes more confident in the identification. As litigators know, a confident eyewitness on the stand, regardless of whether the witness is correct or not, has a great impact on a jury.

The court and science come together

Over the past 30 years, there have been hundreds of sociological studies performed to test the reliability of eyewitness testimony and to determine what factors, if any, influence the brain’s recall system and the witness’s self-affirmance of what she or he may have experienced. The New Jersey Supreme Court in 2011 made a landmark decision where it reviewed a special master record of 300 exhibits and 200 scientific studies in the case of State of New Jersey v. Henderson. The court decided that when studying eyewitness testimony,2 groups should be identified: “estimator variables” and “system variables.”

Estimator variables are things that cannot be controlled by the criminal justice system. Examples of estimator variables are the amount of light between the alleged and the distance between the witness and alleged perpetrator. Things that the criminal justice system can and should control for are system variables. System variables include procedures such as how law enforcement retrieves and stores witness testimony, how it conducts line-ups, photo arrays (six-packs), and instructions given to witnesses when participating in identification procedures. State of New Jersey v. Henderson, 27 A.3d 872 (N.J. 2011).

What can be done to improve the system used?

From the scientific evidence that supports the fallibility of eyewitness testimony and the decision rendered in Henderson, there are several methods that can be used to ensure that innocent people are not identified through eyewitnesses. For example, blind administration of the officer conducting line-up, where the officer conducting the procedure does not know who the alleged suspect is, would greatly reduce the non-verbal communication signals the witness may interpret as positive feedback. Also, when using fillers in line-up composition, the fillers should resemble the description on the person given by the witness, and the same fillers should not be used in multiple line-ups. This would reduce the likelihood that seeing the same person multiple times would implant a false recognition in the eyewitness’s memory. Other improvements would allow for the identification process to be recorded; eyewitnesses would memorialize their own confidence level in the identification made; and the conducting officer would tell the witness that the suspect may or may not be in the line-up, and the investigation will continue regardless of the outcome. During the investigation process, implementation of these procedures would lessen misidentification. The lack of these processes being used gives the defense an opportunity to attack the eyewitness’s identification during a trial. If the procedures were implemented nationwide they would protect innocent people from overzealous police and prosecutors, thus helping to ensure that a suspect will have a fair trial.

But what color is the dress?

The designers have confirmed the dress is blue and black.

To learn more about eyewitness identification, vision processing and how the brain stores memories visit:





[1] B. W. Behrman & S. L. Davey, Eyewitness Identification in Actual Criminal Cases: An Archival Analysis, 25 Law & Hum. Behav. 475 (2001).

[2] Comm. on Scientific Approaches to Understanding and Maximizing the Validity and Reliability of Eyewitness Identification in Law Enforcement and the Court et al., Identifying the Culprit: Accessing Eyewitness Identification 46-47 (2014).

Target Practice: Victim Blaming and the Cross-Sections of Race and Gender

November 4, 2014

By: Tierra M. Ragland

Victim blaming is a devaluing act that occurs when the victim of a crime is held responsible in whole or in part for the crime committed against them. Victim blaming can occur in the form of negative social responses from the media, society, legal professionals, medical professionals, and immediate family members. Some victims of crime receive more sympathy from society than others. Often, the responses toward victims of crime are based on negative societal stereotypes. These responses may lead others to believe that the victims deserved what happened to them.

Victim blaming can happen to anyone, but it overwhelmingly affects victims of rape, indigent populations, and victims of domestic violence. When victims are African-American, they may also become the subject of victim blaming.  Victim blaming can occur from media coverage that focuses on a victim’s unrelated or alleged criminal past, the physical attributes of the victim, how the victim was dressed, and any actions they may have taken that led them to becoming a victim. Victim blaming is problematic for a variety of reasons. Societal tendencies to victim blame encourage crimes to go unreported. Often, victims of crimes do not get adequate assistance and the accused go unprosecuted, leading them to get away with the crime they committed.

Domestic Violence

Recently, National Football League “NFL” running back Ray Rice was suspended from the NFL for domestic abuse against his then fiancé, now wife, Janay Rice. TMZ released surveillance footage of the incident, which sparked a media frenzy. Social debate soon followed with conversations surrounding the actions of the victim.  Conversations in the media speculate as to why she married him, what she did for him to hit her, and how and why she would defend him. This example of victim blaming is problematic because it places all of the blame on a victim of domestic violence and attempts to justify the actions of the alleged abuser. High profile victim blaming such as this can lead to future incidents of domestic violence not being reported, and potential cycles of violence to continue.


Last year the Steubenville Rape investigation was a constant fixture in the news media.  A 16-year old girl was raped at a party by two local high school football stars. After the rape, pictures of the victim being violated were sent throughout the high school and social media. During the trial of the two young men, the focus of many local and national new broadcast consisted of victim blaming. There were questions surrounding what the victim was wearing, whether she was drinking, and how the accusation would affect the promising football careers of the young men.  Instances of victim blaming such as this contribute to rape culture, which focuses heavily on policing the actions of victims and not the actions of predators.  Even after the boys were convicted of rape, the community, her peers, and the news media harassed the victim and her family.

Earlier this year, one of the rapists was released from detention and returned to playing on his high school football team. Upon his release, there was a press release about how this incident has affected him and his family but there was no apology to the victim. When the purpose of the juvenile justice system is to rehabilitate, what message does it send to the victim when her convicted rapist serves less than a year in juvenile detention and gets to pick up his life right where he left off? A victim has to spend the rest of her life with the reality of public humiliation through pictures on social media, harassment by the community, and blame for ruining the promising future of her rapist.


In a country that has a history of discrimination, brutality, racism, and systematic oppression against African-Americans, Blacks are often blamed for the crimes committed against them under the guise that race no longer matters in “post-racial America.” This becomes problematic because the United States is far from, if ever, being post-racial. We, as a country, have not effectively dealt with the consequences and vestiges left behind from slavery, segregation, and disenfranchisement. Our history of systemic oppression makes the cross-section between race and victim blaming a tense and complicated issue.

In February 2012, seventeen-year-old Trayvon Martin, an unarmed African-American, was shot and killed by George Zimmerman.  During the media coverage of Zimmerman’s trial, the focus quickly turned to race. The media coverage focused on the physical size of Martin, his alleged prior drug use, and whether a black hoodie is or is not suspicious. This type of victim blaming is problematic because it suggests that if you look a certain way, dress a certain way, or have participated in certain activities, murder is justifiable. This instance of victim blaming is also interesting because much of the focus was on the actions of the victim and very little focus was on his age: Martin was still considered a child in the eyes of society and the law.  Zimmerman was ultimately acquitted of all charges.

In August 2014, Michael Brown, an unarmed African-American man, was shot six times, including twice in the head, by Missouri police officer Darren Wilson.  The shooting occurred during an encounter with Wilson, while Brown and a friend were walking down the street. This shooting sparked protest in the small town of Ferguson, Missouri, and received national media coverage. While the topic of the media coverage did focus on the “trend” of shooting deaths surrounding unarmed black men, elements of victim blaming still occurred. Media coverage and police statements made it seem as if Brown may have been involved in the theft of a cigar from a convenient store earlier that day, and accusations were made that Brown’s physical size may have intimidated the officer.  There were additional comments by the community and media that Brown was starting college soon, therefore his death was more tragic, suggesting that being shot while unarmed and surrendering is not tragic enough. Victim blaming as related to this incident is problematic because it devalues the life of the victim, and focuses on the actions of the victim, suggesting that his or her death or injury could have been preventable if only he had acted differently.

Protests surrounding Brown’s shooting also received media attention. The protestors were described as rioters and met with Ferguson police equipped in military gear. The protestors were gassed, harassed, and categorized in the media according to the actions of only a small number of looters.  Protest and civil unrest is still continuing in Ferguson. Darren Wilson has not been charged for the shooting of Michael Brown.

The above instances are a just few examples of victim blaming and the damaging effects that it can have on recovery and justice for the victim.  Racial aspects of both of the young men’s victim blaming consists of the physical size of black man, which is seen as intimidating, and their actions as criminal even when they have not been convicted. Many more victims of domestic violence, victims of rape, and unarmed black men have been the subject of victim blaming by the media and society.  Since the shooting of Michael Brown, thirteen African-Americans have been fatally shot by police. An entire book could be written on the subject.

The media and society have not only constructed socially acceptable victims but also socially acceptable alleged perpetrators of crimes and other forms for wrongdoing.

In comparison to the protest in Ferguson, similar protests have been categorized sympathetically by the media. For example, after the firing of long-time coach Joe Paterno by Penn State, thousands of students stormed the campus to express their outrage. Students gathered in the streets, overturned a media news van, tore down lampposts, and threw rocks and fireworks at police. The police responded with pepper spray. At no time were the protestors met with tear gas or police in military gear. In the media, the students were described as hurt by the firing of their beloved coach.  The media described demonstrators as “filing down into the streets.” The media expressed empathy and understanding as to why the students were outraged. Comparing this to the protesting in Ferguson where the protestors were arrested and met with tear gas and police in military gear, it begs the question of why such a vast difference in media coverage exists when, at the core, both protestors were expressing their outrage using their first amendment rights.

In July 2012, James Holmes opened fire into a crowded movie theater killing twelve people and injuring fifty-eight.  The media coverage surrounding the shooting described Holmes as mentally ill and a disturbed young man. In contrast, Martin and Brown, the victims of shootings, were described in the media negatively to justify the crimes against them, whereas Holmes is accused of committing the deadliest shooting since the Columbine school shootings and his actions are described as the result of mental health issues.

In a society ruled by social perceptions, victim blaming can be used as a tool to describe victims as worthy and unworthy. When this occurs, real social issues based in race and gender get lost in the conversation. There is little to no solution on how to effectively address these issues. However, the first step to end victim blaming is to allow victims to be victims and not condemn them in media

L.A. Clippers Owner Tips Off Public to Prevalent Racial Issues

April 30, 2014

By Professor Christie Matthews

Los Angeles Clippers owner, Donald Sterling’s, recent racist comments have ignited public outcry– and rightly so.  The private conversation, recorded by his black and Latina girlfriend, revealed a man with bigotry so deep yet so conflicted that he seemingly demands that his girlfriend “whitewash” her ethnic heritage and disassociate herself publicly from blacks and other minorities.  Sterling allegedly says his girlfriend can meet with blacks and sleep with blacks but not take pictures with them or bring them to Clippers games. When she protests, he allegedly calls his girlfriend naïve and “stupid” as to the ways of the world when it comes to race, even as she responds that she can’t help it if she cannot be racist in her heart.

Now most fair-minded and good-hearted people can see Sterling’s viewpoints for what they are—offensive, ugly, detestable—particularly so because he is an owner in a league comprised of over 80% minorities, minorities who help fatten his bank accounts.

But do we recognize the exchange between Sterling and his girlfriend for what it really represents? Is this conversation not simply a microcosm of the much more mammoth issue of race relations in America? On the one hand, there are those with good intentions that eschew bigotry and hatred, and as such are more reluctant to recognize that racism is alive and kicking in 2014.  On the other hand, there are still those, many in positions of power, who embody a Plessy v. Ferguson mentality—the 1896 case in which the Supreme Court ruled “separate but equal” was Constitutional and in doing so confirmed that there is a property right to whiteness.  Is it that Sterling’s comments are reflective of this ugly truth– being white has value still today—better job opportunity, higher pay, less police intrusion, greater perceived intelligence and competency?

Most of us prefer to view Sterling’s viewpoints as atypical, aberrant, the juice from a bad apple. Yet studies show that nearly everyone has racial bias, even if subconsciously, and that racial bias plays out in many spaces—on the job, in the courtroom, and in the political arena, to name a few.  Is it that Sterling is simply tapping into what most of us would see if we dared lift the veil of post-racial propaganda and eschewed the color-blind approach evidenced in such court decisions like Shelby County v. Holder, which eliminated pre-clearance requirements for election law changes?  Is it that Sterling is simply reflecting the harsh reality—race, and racial associations, do still matter, and that those in power are not blind to its effects on their reputations and, in turn, their pockets?

Of course, I am not saying that there is any excuse whatsoever for Sterling’s comments.  He has rightly been subject to swift and harsh discipline by the league—a lifetime ban and a $2.5 million fine. But I am saying that the real injustice will be for us to write him off as pathological and allow ourselves to be lulled into believing that these types of racists comments don’t continue to take place across America.  Racist views are prevalent, deep-seated and complex.  Perhaps the Sterling controversy can best be used as a catalyst for examining our own internal biases in order to realize racial progress.

Protecting Voting Rights Again

February 16, 2014

By Tiffney Love

In August 2013, I had the honor of attending the 50th Anniversary of the March on Washington. As soon as I arrived at the March, organizers eagerly handed me a bright yellow sign with large blue text. The sign simply read, ‘Protect Voting Rights.’ The anniversary of the March came right on the heels of a 5-4 Ruling by the Supreme Court in Shelby Cnty., Ala. v. Holder, 133 S. Ct. 2612 (2013), which struck down Section 4 of the Voting Rights Act.

Numerous elderly March participants were eager to tell me of their involvement in the Civil Rights Movement and the great things they helped to accomplish. These testimonies, along with the recent Shelby County ruling, encouraged me to assess what the decision means for minority voters in future elections.

1963 March on Washington

1963 March on Washington

The Voting Rights Act of 1965 was one of the greatest legislative achievements of the Civil Rights Movement. For states with a history of voting discrimination, Section 4 of the act permitted changes to voting laws only after they were cleared by the Justice Department or a Federal Court in Washington.  For example, South Carolina and Texas had to obtain preclearance on voter identification laws before they could implement the laws in their elections. Many southern states required preclearance, however, the requirement was not limited to the south.

A few of the states used the Supreme Court’s ruling in Shelby County, as a chance to instantly implement laws bringing discriminatory effects to the voting process for most minorities. For instance, in 2011 South Carolina was blocked from passing a voter identification law by the Justice Department, as the law did not include an exemption for residents who could not obtain an identification card to comply with the Voting Rights Act. Also in 2011, Texas was in the process of seeking approval for Voter Identification Laws. Within hours of the Shelby County decision being reached, the laws, as well as redistricting maps, went into effect.

Although not all are in force currently, “there are a total of thirty-four states whom have passed voter identification laws”.[1] These laws include providing some form of government issued identification such as: a valid driver’s license, military identification, a state identification card, United States passport, student identification, or a state registration card with a photo.

Although voter identification laws and redistricting may not seem to be as facially discriminatory as poll taxes, literacy tests, or contingent upon whether an individual’s grandfather was allowed to vote, these subtle and discrete methods will likely have the same impact in terms of voter disparity. For instance, many southern states have large minority populations and are free to indulge in the redrawing district lines, which in turn will dilute the minority vote. For places such as Texas this not only interferes with African American’s voting power but also the Hispanic community’s. Next, Voter Identification laws will place an undue burden on the poor and women. The poor will have to pay to obtain proper identification that complies with the law and women who are married or have name changes will have to go through great lengths to ensure their name is the same on all identification documents.

In my opinion, Justice Ginsberg’s dissent said it best: “[T]he court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. With that belief, and the argument derived from it history repeats itself. .”[2] Therefore, minority voters are yet again susceptible to discrimination in voting. Unfortunately, the men and women who participated in the initial fight for the Voting Rights Act were at the 50th Anniversary of the March on Washington fighting against the same issue: inequality.

[1] National Conference of State Legislatures. “Voter Identification Requirements.” Web. October 17, 2013 http://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx

[2]  Shelby Cnty., Ala. v. Holder, 133 S.Ct. 2612 (2013).

Justice Ginsberg’s dissent may be accessed here: http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf

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