Eyewitness Testimony and Eyewitness Misidentification

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Eyewitness testimony is the account a bystander or victim gives in the courtroom, describing what that person observed that occurred during the specific incident under investigation. It is one of the most important aspects to solve a crime and reach the justices. It is believed to be one of the major aspects of Criminal Investigation. The witness or the victim is supposed to tell all the relevant details of the crime scene, criminal/s and other related activities. Victim Identification is the most important aspect. The testimony is based on human psychology and hence, isn’t always perfect. It is largely based on human memory recoding and recall and is a very important part of Cognitive psychology research. The ‘Innocent Project’ in the US has revealed that eyewitness misidentification is the leading cause for miscarriage of justice, with covering over 75% cases.

Many factors can affect eyewitness testimony. They can be divided into two categories of variables– Estimator variables and System variables. Estimator variables include the characteristics of the witness, the event and the conditions prevailing which are not in control of anyone. System variables are controlled by the Criminal Justice System.

Estimator Variables- There are various variables which cannot be controlled or changed, and yet they contribute to solving a crime greatly. The age, gender and features and personality of the witness are one aspect. Old people often lack efficiency in recognition; women tend to remember dates and time more easily, and Neurotic personality type is believed to have less attentive to details. Gender studies have constantly revealed the differences in memory in males and females. So, we can say that not all the witnesses have the same reliability. Some characteristics of the situation also affect both encoding and recall like illumination and noise level. According to eyewitness memory literature, ‘weapon focus’ impairs witnesses’ ability to remember accurate information about perpetrator’s appearance, including his/her physical features and clothing. The other factors include the distance of witness from the perpetrator, the disguise of the perpetrator and other situational condition. Though these variables cannot be changed, psychological researches can show the reliability of the testimony under different circumstances.

System Variables- System variables are in control of the justice system. It includes the method of investigation and the way the police asks the questions. The questions should be open-ended and simple with minimum words. If the police ask all the witnesses at the same time, there are more chances of producing the wrong information. Ideally, all the witnesses are not allowed to discuss the crime situation with each other. Different cognitive interview methods can be adapted to elicit information and help individuals to respond to correct information only. Another example is the estimation of heights and the age of the perpetrator. People generally overestimate or underestimate heights.


Legal Aspect

According to section 3 of the Indian Evidence Act, 1872, there are two major forms of witnesses:

  • Statement of witness
  • Documentary evidence

The eyewitness testimonies are considered under section 3(1) of the Indian Evidence Act. This section provides the statement of an eyewitness under oath with a major evidentiary value under Indian law. In the case of Madhu Madhuranatha V. State of Karnataka, a witness has been defined as a person who can provide information by oral or written depositions given in the court or otherwise. For a person to be called witness, the following five factors are called the Telfair instructions must be satisfied:

  1. The quality of an eyewitness in view of the perpetrator of a crime.
  2. The eyewitness’ confidence with respect to the accuracy of the identification.
  3. The eyewitness’ accuracy with respect to the description of the perpetrator.
  4. The amount of attention the eyewitness paid during the occurrence of the crime.
  5. The time between the occurrence of the crime and identification procedure.

All the statements of witnesses are recorded as evidence in accordance with section 164 of Cr.P.C. In the case of Vikas Kumar Roorkewal v. State of Uttarakhand & Ors., the Supreme Court also held the taking legislative measures for the protection of witnesses can contribute to conducting a fair trial.


Problems and Biases

As we have already addressed, eyewitness testimony can be relied upon. But, there reliability and validity can be understood if we go deep to analyse the various psychological constructs which can lead to biases.

  • Reconstructive nature of memory: Though several cognitive processes are involved in our daily life, memory is probably the backbone of eyewitness testimony. Memory is one of the most explored areas of cognitive psychology, and there are many findings of its encoding, retention and retrieval. Generally, people view their memories as being a coherent and truthful account of episodic memory and believe that their perspective is free from an error during recall. However, the reconstructive process of memory recall is subject to distortion by other intervening cognitive functions such as individual perceptions, social influences, and world knowledge, all of which can lead to errors during reconstruction. Memory is believed to be constructive on encoding and reconstructive nature of the recall. Constructive memory means the use of general knowledge stored in one’s memory, previously to construct a more complete and detailed account of an event or experience by changing or filling in various features of the memory. This is like a distortion of the original information in storing only. We construct memories to draw meanings of surrounding making things more understanding. Reconstructive memory, on the other hand, is the act of remembering which is influenced by various cognitive processes including perception, imagination, semantic memory and beliefs, amongst others. This means when we perceive and encode, we do not have all the information in a flowing unity, i.e. we do not know the full story, rather just part of it. But, when we recall, we fill in the gaps of the information to make it more meaningful and complete. People attempt to place past events into existing representations of the world, making the memory more coherent. Another fact is we develop schemas, mental information networks that represent some aspect of collected world knowledge. Researches show that instead of remembering precise details about commonplace occurrences, a schema is developed. The common use of these schemas suggests that memory is not an identical reproduction of experience, but a combination of actual events with already existing schemas.
  • Misinformation Effect: Psychologist Elizabeth Loftus believed that the integration of misinformation with the original memory will lead to the formation of a new memory. The misinformation that witnesses are exposed to inform of co-witnessing and leading questions after the event leads to contamination of subjects’ memories of what they witnessed. Hundreds of studies have demonstrated that memory can be contaminated by erroneous information that people are exposed to after they witness an event. The misinformation in these studies has led people to incorrectly remember everything from small but crucial details of a perpetrator’s appearance to objects as large as a barn that wasn’t there at all.
  • Inattentional Bias: Inattentional occurs when an individual fails to perceive an unexpected stimulus in plain sight, purely as a result of a lack of attention rather than any vision defects or deficits. When it becomes impossible to attend to all the stimuli in a given situation, a temporary “blindness” effect can occur, as individuals fail to see unexpected but often salient objects or stimuli. Inattentional blindness may render some eyewitnesses unable to accurately describe the culprit of a crime that had occurred right in front of them.  Potential eyewitnesses, just like the rest of us, do not go through their lives expecting to witness crimes. They are also frequently subject to internal distractions, such as their thoughts and worries, as well as to external distractions, such as their handheld electronic devices. According to the capacity theory of attention, Inattentional bias is because people have a limited amount of cognitive resources to devote to the perception of their surroundings. Another similar process is change blindness. Change blindness is a perceptual phenomenon that occurs when a change in a visual stimulus is introduced and the observer does not notice it. A classical study of 1998 by Simons & Levinre presents a man was to approach people with the pretence of asking directions. When the unwitting participant had got underway giving directions, Simons & Levin had another pair of confederates walk rudely between them and the man carrying a door. The man used the shield provided by the door to sneak off, and another experimental confederate took his place. The research measure is whether the person giving directions noticed that they were now giving them to a different person. Amazingly, slightly less than half of the people approached noticed the switch. Hence, we can see that in normal day today, a person does not even notice the peoples’ face we meet. Most of the bystanders witness hence are unable to give the details.
  • False Memory: False memory refers to cases in which people remember events differently from the way it happened or, in the most dramatic case, remember events that never happened at all. False memories can be very vivid and held with high confidence. There are many things which can lead to the creation of false memory. If the perception of an event is inaccurate, then it cannot be remembered accurately. The witness to a crime is actively trying to figure out what is going on during the event and uses prior knowledge to make sense of what is happening. Sometimes, similarity after the event to another event can also lead to the creation of false memory. Office clerk Stefan Kiszko spent 17 years in prison for the murder of schoolgirl Lesley Molseed in Rochdale in northwest England in 1975. Though he had confessed his guilt to the police at the time, evidence later proved he was innocent. According to research from the US, over 25% of people later exonerated by DNA evidence made a false confession.
  • Identification of Perpetrator: When we see someone, we feel it is easy to remember their faces. For some people, it might be. But it is not easy to describe those same features, especially of strangers, the one you saw for once or twice. We cannot even describe the face of the people we meet daily; perpetrators are rather unknown to individuals. One main reason is we see the face as a whole, not different features. Even though with new technologies, the identification is still tough and full of errors. In many experiments, when participants were given a basic memory test from an array of photos or a lineup, they struggled to accurately identify the images and had low recognition. It can only get more challenging for a person to accurately encode a face when they are experiencing a traumatic event. When the witnesses are asked to identify the perpetrator in a lineup, s/he tries to find the best match of all the faces. They tend to identify the nearest of the face they remember.


Cases of eyewitness misidentification

Eyewitness misidentification is believed to be the largest cause of justice failure. The innocence project analyses cases of such injustice. Let’s analyze some cases to understand the matter.

  1. Name: Malcom Alexander

Years served: 38 Years

Charge: Aggravated Rape

Sentence: Life without Parole

Incident Date: 11/08/1979

Conviction Date: 11/05/1980

Malcom Alexander served 38 years in the state of Louisiana for the rape he did not commit. He was arrested for the 1979 crime based on a deeply flawed, unreliable identification procedure. After a reinvestigation by the Jefferson Parish District Attorney’s Office, district court judge dismissed the indictment and ordered the release of Malcolm Alexander. The DNA evidence proved his innocence. According to police reports, the victim “tentatively” selected Alexander’s photo. Research has shown that multiple identification procedures can contaminate a witness’s memory, causing a witness to become confused about whether he or she recognizes the person from the event or the earlier procedure while also making the witness more confident in his or her identification. Malcom also suffered from the harsh treatment of police and racism due to his colour.

  1. Name: Donte Booker

Years served: 18 Years

Charge: Rape, Kidnapping, Robbery, Gross Sexual Imposition

Sentence: 10-25 years

Incident Date: 11/11/1986

Conviction Date: 13/05/1987

On November 11, 1986, the victim, a white female, was attacked by a man, who was previously asking directions, then threatened her with a knife. Although the perpetrator told her to keep her face toward the side window of her car, she said she saw him several times after he entered the vehicle. She was then raped by him and robbed her including a toy gun. Donte Booker was arrested in February 1987 in an unrelated incident involving a toy gun. She picked Booker’s photograph from the array and identified the toy gun as the one that was stolen from her car. Additionally, the police searched Booker’s home and found a grey sweatshirt and sweatpants that generally matched the victim’s initial description of the perpetrator’s clothing. Years later, in the test results, it was found that he was not the culprit.

So we can see those wrong testimonies can lead to great injustices and destroy the lives of innocents.



Eyewitness testimony is a very important part of the Justice System of any country. We know that these testimonies are subject to human error. There are many factors which influence the testimony of the witness. Some of them can be controlled, others cannot be. But, proper Justice System and practices can increase the efficiencies. The development of modern technology has also increased the possibility of proper justice. And yet, such testimonies are needed to be dealt with care.