Faulty Memory Compromises Justice

The desire for truth and justice are core principles that inspired the writing of our country’s founding doctrine. Five of the ten Amendments in the Constitution’s Bill of Rights were specifically dedicated to ensure U.S. citizens enjoyed strong legal protections. Because our Republic was based on the Rule of Law, the Founders wanted to ensure all people, regardless of status, had equal protection under the law. Unfortunately, there are times when the legal system does not function as well as it was intended. There are many examples of flawed justice, however, one of the most egregious is when innocent people are convicted of crimes they did not commit. Why does this happen, and what can we do to stop it?


A recurring problem that plagues the legal system is inaccurate eyewitness testimony. Wells & Olson (2003) says the “criminal justice system relies heavily on eyewitness identification for investigating and prosecuting crimes.” The use of eyewitness testimony makes sense from an investigative and prosecutorial perspective. After all, if someone legitimately saw a crime being committed, then that testimony should be admissible, and considered solid evidence.

However, sometimes evidence a witness presents to the jury is not always the complete truth. In the Columbia Law Review, Attorney James Marshall (1963) posited,

“[f]or the law, the basic problem of ascertaining truth does not arise so much from the villainy of perjurers and suborners of perjury as from the unreliability of personal observation.”


Sometimes eyewitnesses willfully lie, but most times their unreliable testimony isn’t intentional; they just get the identification wrong for a variety of psychological reasons. In 2011, the American Psychological Association (APA) filed a brief in the Pennsylvania Supreme Court case Commonwealth of PA v. Walker, where they asserted,

“juries don’t understand the many factors that can influence a witness’s ability to accurately identify a suspect, including how much stress a witness is under, whether a weapon is present, the amount of time a witness had to look at the person, the lighting present at the time, how long it’s been since someone first witnessed the crime or suggestions of guilt by police.” (Azar, 2011).

If jury members are swayed by flawed eyewitness testimony, and decide guilt based on it, then the remainder might go along as well (Asch, 1951). That is a potentially dangerous situation for an innocent person to confront. Zak Stambor (2006) discussed the dangers of relying on eyewitness testimony in an article where he says that mistaken identification was “cited as a factor in nearly 78 percent of the nation’s first 130 convictions later overturned by DNA testing.” Even simple changes in appearance, like sunglasses or covering the hair, can limit the eyewitness’s ability to accurately identify the correct person. Only recently has the criminal justice system started to take into account these facts, and started to realize something needs to be done. (Wells & Olson, 2003).

Identifying the fact that flawed eyewitness testimony may cause a jury to wrongly convicting a defendant should seriously concern the applied social psychology community. Additional research must be conducted by applied social psychologists in order to develop an intervention to address these potential problems. Wells & Olson started to identify some solutions, including suggesting changes in how law enforcement conduct line-ups of potential criminal suspects. Perhaps interventions could also include some procedure to cognitively prime jury members to the potential pitfalls of eyewitness testimony. This could be accomplished by using cognitive dissonance when preparing the jury for duty. They could be asked if they would be impartial and unbiased, and give them statistics about false convictions based on faulty testimony. Additionally, they should be shown the Asch experiment video to immunize them from the possibility that one juror might weigh eyewitness testimony too heavily.

The APA is taking steps to promulgate the idea that eyewitness testimony has its drawbacks (i.e. the case mentioned above); but clearly much more needs to be done to ensure fairness, and compliance with the 6th Amendment. The intervention could be applied on a small scale in select jurisdictions to test the theory. Evaluation of the efficacy and effectiveness of the intervention would take an extended period of time (in order to get enough data to make reasonable conclusions.) This could be accomplished through pre- and post-intervention self-report measures to ascertain juror awareness of potential biases. Additionally, future statistics could be gathered to compare the percentage of cases overturned on appeal versus past cases (where the defendant was found to be actually guilty.) Although these evaluation measures might not be particularly effective; at the very least, this intervention may enlighten jurors to potential pitfalls in the system, and help innocent defendants go free.



Asch, S. E. (1951). Effects of group pressure upon the modification and distortion of judgment. In H. Guetzkow (ed.) Groups, leadership and men. Pittsburgh, PA: Carnegie Press.

Azar, B. (2011). The limits of eyewitness testimony. Monitor on Psychology. 42:11, 26. Retrieved from http://www.apa.org/monitor/2011/12/eyewitness.aspx

Marshall, J. (1963). Evidence, Psychology, and the Trial: Some Challenges to the Law. Columbia Law Review. 63:2, 197-231.

Stambor, Z. (2006). How reliable is eyewitness testimony? Monitor on Psychology. The American Psychological Association. Retrieved from http://www.apa.org/monitor/apr06/eyewitness.aspx

Wells, G. & Olson, E. (2003). Eyewitness Testimony. Annual Review of Psychology, 54:277-95. Retrieved from http://public.psych.iastate.edu/glwells/Wells_articles_pdf/Eyewitness_Testimony_Ann_Rev.pdf




1 comment

  1. One could argue that the Founders of the United States did not seek for equal legal protections for all regardless of status. In fact, It was not until after the Civil War in 1869 that the Fourteenth Amendment provided “equal protection of the laws.” Today this amendment is still highly contested through litigation such as Roe versus Wade and Brown versus the Board of Education (Cornell University Law School, n.d.). So it is probably not surprising that there are still a lot of folks who do not agree with this equality principle.

    One only has to compare the disproportionate number of minorities who are convicted of crimes to see we are not quite there yet. The NAACP states that African Americans are imprisoned at about six times that of Whites in the United States (NAACP, n.d). African Americans combined with Hispanics make up 58% of those incarcerated though these minorities make up only 25% of the general population in the United States (NAACP, n.d.). Recent events in Ferguson, Missouri and Cleveland, Ohio continue to point to problems in our criminal justice system. http://www.nbcnews.com/storyline/michael-brown-shooting/mtp-panel-racial-divide-u-s-deep-doesnt-end-ferguson-n258481

    I do not mean to discount the importance of flawed eyewitness testimony; it is truly a problem. But I also believe that police (shooter bias), juries and courts (generic, normative, and interest prejudice) alike are already biased in most cases and are also confounding equal protection of the laws.

    Cornell University Law School. (n.d.) U.S. Constitution › 14th Amendment. Retrieved from http://www.law.cornell.edu/constitution/amendmentxiv

    National Association for the Advancement of Colored People (NAACP). (n.d.) Criminal Justice Fact Sheet. Retrieved from http://www.naacp.org/pages/criminal-justice-fact-sheet

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