Eyewitness testimony stands as one the most compelling forms of evidence in American legal proceedings. Jurors are often influenced by the confidence and detail with which a witness recounts an event, equating a vivid, personal narrative with reliability and truth. Yet, a growing body of scientific and legal scholarship reveals that this reliance may be dangerously misplaced as the human memory is far from infallible. Understanding the limitations of human recollection is essential for evaluating the true evidentiary value of eyewitness testimony and implementing procedures that promote accuracy and fairness in the legal system.
The Misinformation Effect → Accurate Perception ≠ Accurate Recollection:
Cognitive psychology consistently challenges the assumption that our memory serves as a reliable record of past events. Research shows that subtle yet significant differences frequently arise between a witness’s initial observation of an event and their subsequent recollection, regardless of the witness’s confidence.[1] Dr. Katherine Puddifoot, an associate professor in philosophy, identified this phenomenon as the infamous “misinformation effect”, which demonstrates that the human memory is highly susceptible to distortion by the exposure of misleading post-event information.[2] Dr. Puddifoot noted that a common avenue for introducing misinformation into a witness’s memory is through the suggestive techniques employed by police officers or lawyers.[3] “For example, a police officer could refer to some detail (e.g. a ‘stop’ sign) in her questioning, leading a witness to falsely remember that they saw the detail.”[4] Elizabeth Loftus, a psychologist, emphasized that similar suggestive influences arise during criminal lineup procedures.[5] The investigators may unintentionally generate false memories in witnesses with subtle cues.[6] A smile, grunt, or an affirmative nod can not only steer witnesses toward a particular suspect but also lead them to later believe firmly in the accuracy of their selection.[7]
Procedural Pitfalls:
Among the various forms of eyewitness testimony, witness identification exerts exceptional persuasive power in the eyes of jurors. “There is almost nothing more convincing that a live human being who takes the stand, points a finger at the defendant, and says ‘that’s the one’ ”[8] Yet, “misidentification by eyewitnesses is claimed to be the largest single source of wrongful convictions than all other causes combined.”[9] This striking contrast between the power of in-court identification and the frequency of error underscores a deep challenge for the justice system. Professor Greshmam highlighted that, despite the existence of constitutional safeguards aimed at preventing the admission of identification evidence derived from highly suggestive procedures, the reality is far less reassuring.[10] The bar for relief is set remarkably high and as a result, courts rarely find that even the most suggestive techniques rise to the level of a due process violation.[11]
The Blueprint: New York Court of Appeals
However, in 2024, the New York State’s highest Court issued four rulings: Vaughan, Williams, Mosley, and Watkins that signaled a profound shift in the judicial treatment of eyewitness evidence.[12] Specifically, “key principles governing expert testimony, in-court identifications, lay video identifications, effective assistance of counsel, and cross-race jury instructions.”
In People v. Vaughan, the Court of Appeals clarified that corroborating evidence does not automatically preclude the admission of expert testimony on eyewitness identification.[13] Admissibility is based on a case specific analysis to determine whether expert insights would help the jury assess the reliability of the eyewitness identification, regardless of how the prosecution’s other evidence may appear. This is beneficial because it ensures jurors have access to scientific context when evaluating one of the most fallible forms of testimony.[14]
In People v. Mosley, the Court of Appeals addressed the increasing method of law enforcement officers using non-eyewitnesses to identify defendants in surveillance footage. The Court’s ruling affirmed that such testimony is only admissible if the witness has met the newly adopted two-part test that (1) the witness has sufficient prior familiarity with the defendant and (2) the jury genuinely needs help interpreting the video.[15] This admission should be followed by a limiting instruction, reminding jurors that such identification is only opinion, not fact.[16]
In People v. Williams, the Court held that a formal independent source hearing is mandatory before the admission of an officer’s in-court identification after an earlier out-of-court identification had been suppressed due to an unlawful arrest. Such ruling “reinforces procedural rigor in identification cases, particularly where police-initiated identifications may be tainted by unconstitutional arrests. The decision reaffirms that the reliability of such identifications must be scrutinized through a structured evidentiary process – not assumed based on the witness’s professional status or the perceived strength of the prosecution’s case.”[17]
Finally, People v. Watkins emphasized the importance of cross-race jury instructions as it raises unique risks of misidentification.Thus requiring defense attorneys to request such instructions in appropriate cases in order to avoid a post conviction claim. [18]
Conclusion:
Individually, these decisions may not appear transformative, but taken together, they establish a clearer and more reliable basis for courts to judge eyewitness testimony.[19] These rulings can be seen as a direct response to the systematic risks, documented failures that have undermined the use of eyewitness identification and contributed to wrongful convictions. By intensifying judicial scrutiny and embracing the scientific insight of inherent fallibility of eyewitness memory, New York’s highest court takes a meaningful step toward greater fairness and justice.
[1] Katherine Puddifoot, Re-Evaluating the Credibility of Eyewitness Testimony: The Misinformation Effect and the Overcritical Juror, 17-2 Cambridge University Press, 255 (2020).
[2] Id. at 257.
[3] Id.
[4] Id.;see e.g., Elizabeth F. Loftus & John C. Palmer, Reconstruction of Automobile Destruction: An Example of the Interaction Between Language and Memory, 13 J. Vᴇʀʙᴀʟ Lᴇᴀʀɴɪɴɢ & Vᴇʀʙᴀʟ Bᴇʜᴀᴠ. 585 (1974) (discussing experimental participants with images of a car crash. Participants asked about the speed of cars “smashing” versus “hitting” into each other were more likely to falsely recall broken glass).
[5] John Bohannon, How reliable is eyewitness testimony? Scientists weigh in, sᴄɪᴇɴᴄᴇ (Oct. 3, 2024) https://www.science.org/content/article/how-reliable-eyewitness-testimony-scientists-weigh?utm_source=chatgpt.com.
[6] Id.
[7] Id.
[8] See Bennett L, Gershman, The Eyewitness Conundrum:How Courts, Police, and Attorneys Can Reduce Mistakes by Eyewitness, 81 N.Y. Sᴛ. B.J., 24.
[9] Id.
[10] Id.
[11] Id.
[12] Karen A. Newirth, Judicial Scrutiny of Eyewitness Evidence: Lessons From the 2024 Court of Appeals Decisions, ɴʏsʙᴀ (June 30, 2025), https://nysba.org/judicial-scrutiny-of-eyewitness-evidence-lessons-from-the-2024-court-of-appeals-decisions/?srsltid=AfmBOoo-wMQYMb9UVvga5XcPGiWEWyw-FRDamUQfcn_nhrJeeS1rhNZl&utm_source=chatgpt.com
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
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