By Henry F. Fradella, J.D., Ph.D., The College of New Jersey

Abstract

Although most researchers have found general consistency in the ways in which courts have applied Daubert to social scientific evidence, one of the major areas of inconsistency concerns rulings on the admissibility of expert testimony about unreliability of eyewitness identifications. This article argues for a harmonization of this inconsistency by taking the minority approach to the issue: allowing such expert testimony. In support of the argument, the article summarizes the psychological literature on perception and memory (including both estimator variables and systemic variables) in the context of eyewitness identifications. The article then examines the inconsistent treatment of this research by the courts, asserting that courts often misunderstand the relevant psychological literature, thereby unwittingly contributing to wrongful convictions. The article ends by making legal and policy recommendations that expert testimony on eyewitness identifications be admissible under the rules of evidence.

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Table of Contents

I. Introduction

II. Bio-Psycho-Social Factors Influencing Memory

A. Perception

B. The Three Phases of Memory

C. Estimator Variables (Non-Systemic Variables) Impacting Perception and Memory

D. Systemic Factors Impacting Perception and Memory

E. Summary

III. Conflicting Rulings on the Admissibility of Expert Testimony on Eyewitness Evidence

IV. Conclusion

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