Friday, May 13, 2016

The Value of the Eyewitness

By Mike Northrup

Imagine you are preparing to go to trial or even to mediation.  You’ve got an eyewitness who will testify that she saw the traffic light and it was green at the time your client entered the intersection.  Your position couldn’t be any stronger, right?  Think again.

Eyewitness testimony is not reliable.  Some authorities have gone so far as to describe eyewitness testimony as the most unreliable of all types of evidence available.  Legal scholars and psychologists long ago established that criminal line-ups are fraught with problems in part because eye witnesses can be very susceptible to suggestion.  Today a majority of jurisdictions, including Texas, admit expert testimony in criminal cases to provide jurors with an understanding of the factors that impact the reliability of eyewitness identification testimony.

Many factors may impact the reliability of an eyewitness’s accounting of events.  Perhaps the sun was in his eyes.  Perhaps he didn’t have a good angle from which to see the traffic light.  Or maybe he was intoxicated.  Personal biases have been shown to impact the way a person interprets what he or she sees.  Even without these impediments, the events might have occurred so quickly that the witness only thought he saw a green light.  We’ve all seen the sporting events on television where the referee makes a call at the spot of some event, but after instant replay and various camera angles, it becomes clear—irrefutable even—to everyone that the referee made the wrong call.  Unfortunately some eyewitnesses may even have a genuine belief as to the “truth” of what they claim to have seen, but still be wrong.

One question relating to eyewitnesses that frequently comes up in civil cases involves the reliability of an expert reconstructionist’s testimony as to how a particular accident occurred.  In order for the expert’s testimony to have any weight, the expert’s opinions must be based upon the factual evidence.  What happens when the physical evidence is inconsistent with an eyewitness’s accounting of the accident?  Is the expert’s opinion to be disregarded or excluded if he relies upon the physical evidence in forming his opinions?  What if he instead relies upon the witness’s accounting and disregards the physical evidence?  Is the expert testimony admissible in one situation but not the other?  Courts around the country have struggled with this situation and reached different conclusions.  In short, eyewitness evidence can be accompanied by a long list of complications that could undermine your case.  Suffice it to say that if your entire case hangs on the testimony of an eyewitness, your case may not be as conclusive as you had hoped.

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