dada_floridamisidentification_final - UDC Law Review

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There are three biases that studies categorize as cognitive bias: confirmation bias,hindsight bias and outcome bias. As a result, any or all three of these biases cancontribute to misidentification.Psychologists define “confirmation” bias as “the tendency to seek or interpretevidence in ways that support existing beliefs, expectations, or hypotheses.” 20 Theinaccuracy lies in the fact that when one seeks to confirm their existing beliefs,expectations and hypotheses they generally tend to disfavor information that disconfirmstheir theory. 21 Furthermore, when revisiting information previously obtained, peopleprefer information that tends to confirm a presented hypothesis or belief. 22 Eyewitnessesgive greater weight to information that supports existing beliefs than to information thatruns counter to them and the confirmation they create is to some degree, illusory. 23On the same token, “hindsight” bias reflects a situation when one perceives outcomesto be inevitable or predictable and thus projects new knowledge into the past, without anyawareness that the past been tainted by the subsequent information. 24 Hindsight biashappens when the police or prosecutor subsequently gives feedback to a witnesssubsequent to the identification. 25 If the feedback confirms the projected theory of theculprit’s identification, then hindsight bias “will dramatically inflate not only thewitness’s confidence but also the witness’s assessment of the conditions surrounding theidentification.” 26“Outcome” bias is the last of the cognitive biases and goes hand in hand withhindsight bias. Similar to “hindsight” bias, outcome influences identification by injectingnew knowledge into perceptions of the past. On the other hand, outcome bias evaluatesthe quality of the judgments made about past situations and whether such judgments weregood or bad. 27Cognitive biases confirm the inherent unreliability of the human memory.Unfortunately, eyewitness identification is one of the largest factors in convictions.Biases contribute not only to misidentification, but can also lead to tunnel vision withrespect to all aspects of the criminal conviction process. Thus, it is imperative to remedyas much as possible the inherent bias of the eyewitness to prevent miscarriages of justice.iv. OverconfidenceThe eyewitness’s overconfidence in the accuracy of their memory is anothercognitive factor that contributes to malleable memory. The witness’s confidence abouthis or her perception of the crime does not directly correlate with the accuracy of his or20 Id. at 309.21 Id.22 Id. at 312.23 Id.24 Findley, supra note 18, at 317.25 Id. at 318.26 Id.27 Id.4
her eyewitness identification. 28 There are many factors that can contribute to theeyewitness confidence that have no actual bearing on accuracy of the identification, suchas police suggestiveness, other eyewitnesses, and prosecutorial influence. 29 Studies haveshown that this type of post event information has the greatest effect on a witness’sconfidence level and can lead to erroneous information intake. 30 False confidence isparticularly damaging since studies have indicated that juries weigh eyewitnessconfidence heavily in assessing the credibility of evidence. 31v. Relative JudgmentRelative judgment is a cognitive impairment that occurs with eyewitnessidentification in line-up and photospread procedures in particular. “Eyewitnesses tend toidentify the person from the line-up who, in the opinion of the eyewitness, looks mostlike the culprit relative to other members of the line-up.” 32 Different experimental studiesindicate that an eyewitness’ relative judgment has lead to misidentification in a blindlineup wherein the culprit was not even present. 33 Relative judgment is a cognitivephenomenon that occurs to eyewitnesses because:[F]irst, they logically assume that law enforcement would not conduct alineup if they did not have a suspect. Second, many eyewitnesses feelpressure form law enforcement, relatives and friends, and themselves tomake an identification. In addition, many eyewitnesses feel like failure ifthey cannot make and identification during an identification procedure. 34The nature and pressure of these self-fulfilling expectations in addition to theunintentional influence of those conducting the procedure lead to misidentification. 35Thus, the inherent cognitive defect of the eyewitness’s memory is just one of severalfactors that contribute to misidentification phenomena.B. Lack of Procedural Safeguards by <strong>Law</strong> Enforcement Personnel<strong>Law</strong> enforcement personnel have a significant impact on eyewitness identificationsince they conduct photospreads, show-ups and lineups in the initial investigation ofcriminal proceedings. They can be highly influential on an eyewitness even if theiractions are unintentional. Most jurisdictions, including Florida, lack minimum guidelinesto reduce procedural errors in the investigation stage. Misidentification can occursystematically with respect to whom, when and how the identifications are proctored.28 Wise et al., supra note 10, at 458-459.29 Id. at 458.30 Id. at 459.31 Id.32 Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups andPhotospreads, 22 LAW & HUM. BEHAV. 1, 10 (1998).33 Wise et al., supra note 10, at 461.34 Id. at 462.35 Id.5
Page 1: EYEWITNESS MISIDENTIFICATION AND TH
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dada_floridamisidentification_final - UDC Law Review

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