Eyewitness Testimony and the Use of Expert Psychological Testimony on Eyewitness Reliability in Criminal & Civil Cases

Solomon M. Fulero, Ph.D., J.D.

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Eyewitnesses often play a critical role in criminal investigations and prosecutions. However, we know that the quality of eyewitness evidence can vary, and that in cases of wrongful conviction, mistaken eyewitness identification is the single leading cause. As of the time you read this, post-conviction DNA testing has freed 110 persons in the U.S. and 8 in Canada who were convicted by juries of crimes that they did not commit (see Scheck, Neufeld, & Dwyer, 2000). Twelve of these had been sentenced to death. Although some of these cases involved perjury (e.g., jailhouse snitches who were lying) or coincidental circumstantial evidence, the vast majority have been cases in which the principal evidence was mistaken eyewitness identification testimony (Connors et al., 1995; see the links below). In our analysis of the first 40 exoneration cases we found that mistaken identification was involved in 36 of the cases, where 50 separate eyewitnesses had mistakenly identified defendants as being perpetrators (Wells et al., 1998; see the links below).

The reason for this, I believe, is that triers of fact tend to believe that eyewitnesses, particularly confident ones, are more accurate than they actually are. This is because they don’t understand the nature of human memory and the factors that affect eyewitness accuracy. This is why defense attorneys have sought to present expert testimony on eyewitness reliability and the factors that affect it to the triers of fact in their cases. Scientific research on eyewitness identification is one of the oldest areas of research within the field of psychology, dating back to at least 1895 (an article by psychologist J. Cattell in the journal Science). By 1995, there were over 2,000 publications in psychology addressing eyewitness reliability issues (Cutler & Penrod, 1995). These studies are conducted by psychologists around the world (US, UK, Germany, Israel, Japan, Canada, Australia, etc.). The studies are conducted in accord with generally accepted scientific principles of research, and when tested in court the body of scientific knowledge usually passes the Daubert test of reliability and validity (see Penrod, Fulero & Cutler, 1995, and People v. Smith, 2002; see the links below). This website should help attorneys, judges, and law enforcement officers to understand how eyewitness identification works, how eyewitness evidence is and should be collected, and the role of psychologists in the changing of legislative and judicial public policy.


View Dr. Fulero's Curriculum Vita here.


Some informative, sometimes serious, and sometimes funny articles and cartoons on eyewitness reliability and eyewitness expert testimony:
  • Doc 1    (This article, the first Scientific Review Paper published by the American Psychology-Law Society's scientific journal Law and Human Behavior in 1998, sets out "Good Practice Recommendations" for photospreads and lineups.)
  • Doc 2    (These are the New Jersey guidelines for photospreads and lineups, issued by Attorney General John Farmer in 2001. Too bad all states have not yet adopted them. See Doc 10 below for a recent New York Times page 1 article on July 21, 2001 discussing the New Jersey guidelines.)
  • Doc 3    (This 1995 publication of the United States Department of Justice is entitled "Convicted by Juries, Exonerated by Science," Document No. 161258, and is a look at the first 28 post-conviction DNA exoneration cases, of which 24 were the result of mistaken eyewitness identification.)
  • Doc 4    (This is a 2000 op-ed piece by Jennifer Thompson, the subject of the PBS Frontline show "What Jennifer Saw"---see the link below)
  • Doc 5    (This article discusses a federal 6th Circuit case in 2000 where the use of eyewitness expert testimony was denied by the trial judge---the conviction was reversed. The text of the case itself is available below.)
  • Doc 6    (This October 1999 article by John Gibeaut from the American Bar Association Journal discusses the use of eyewitness expert testimony in criminal cases.)
  • Doc 7    (This September 2002 article from the Chicago Tribune discusses eyewitness error and lineup and photospread procedures.)
  • Doc 8    (This Atlantic Monthly article by Margaret Talbot, "True Confessions," discusses photospread and lineup procedures and also advocates the videotaping of all interrogations)
  • Doc 9    (This Chronicle of Higher Education article by David Miller discusses the use of eyewitness expert testimony in criminal cases.)
  • Doc 10    (This article was published on page 1 of the New York Times on July 21, 2001, on the New Jersey guidelines. See Document 2 above.)
  • Doc 11    (This Doonesbury cartoon looks at eyewitness identification, referring to the Gary Graham case---Graham was executed in Texas based on the testimony of a single eyewitness.)
  • Doc 12    (This cartoon is a "cat lineup.")
  • Doc 13    (This cartoon looks at a "biased" lineup.)
  • Doc 14     (Delaware Supreme Court opinion in State v. Garden)
  • Doc 15     (a CBS story from the 48 Hours show "Eyewitness")


If you are concerned about identification reliability or evidence procedures in a particular case,
feel free to contact Dr. Fulero for more information.


Useful links to resources on eyewitness IDs and evidence:

Click here to check out Dr. Fulero's web page at the Sinclair College Psychology Department Site