Beyond Admissibility: A Practical Look at the Use of Eyewitness Expert Testimony in the Federal Courts
Eyewitness testimony is an important, persuasive, and often pivotal element in American trials. Jurors are strongly inclined to believe eyewitnesses, even in the face of other contradictory evidence, such as fingerprints. However, thirty years of psychological research into the workings of human memory have revealed that eyewitness accounts are frequently flawed, either because the witness’s original perception of the event was flawed, or because the memory was subconsciously altered prior to testifying at trial. This, combined with jurors’ inclination to trust eyewitnesses, leads juries to overcredit eyewitness testimony, resulting in false convictions. To help avoid such erroneous outcomes, the legal system must find a way to close the gap between eyewitness accuracy and juror belief in eyewitness accuracy. One controversial option is the use of expert psychological testimony to educate the jury about eyewitness fallibility. In this Note, Jennifer L. Overbeck draws on recent psychological research indicating that while expert testimony may be the best way of educating the jury, it is not successful in all circumstances. The Note argues that lawyers must harness psychological research to determine the circumstances that contribute to effective eyewitness expert testimony and incorporate this into their trial strategies. The Note concludes by suggesting some concrete ways of doing so.