The 1451 Review (Volume 1) 2021

178). In their analysis of three decades’ worth of studies, Meissner and Brigham (2001:
21) found that cross-racial bias has been shown to negatively affects a person’s ability
to accurately identify a perpetrator of another race. Therefore, if an offence is crossracial,
there is an increased chance of mistaken identification.
System Variables
System variables are factors inherent in criminal justice procedure over which the
system does have control, including the suggestiveness of pre-trial identification
procedure, and conduct of officials before, during and after identification (Wells et al.,
2006: 46; Simon, 2012: 65-66). System variables compound and exacerbate the
distortive effects of estimator variables. For example, where an offence is cross-racial,
there is already an increased chance of mistaken identification. Furthermore, positive
feedback from a line-up administrator can serve to inflate an eyewitness’s confidence
in their identification (Simon, 2012: 83-84). As will be seen below, this can cause
issues as factfinders often hold the (incorrect) opinion that a witness’s confidence in
an identification correlates with the accuracy of the identification. The estimator and
system variables operative here can lay the foundations for a wrongful conviction to
flourish, as happened in the well-known Ronald Cotton case in the US.
Practical Risks Associated with Eyewitness Identification Evidence
Misconceptions held by jurors about eyewitness identification and their over-reliance
on this kind of evidence compound the psychological risks. It is this ‘absence of healthy
skepticism’ that turns the theoretical risks associated with mistaken eyewitness
identification into a rather large practical problem: wrongful conviction (Baxter 2007:
180).
One of the main misconceptions held by jurors is that they often equate the
confidence displayed by a witness with the accuracy of their testimony (Dufraimont
2008: 267). However, studies have shown that confidence is not correlative with
accuracy of identification (ibid). Jurors’ belief that it is results in over-reliance on the
evidence of a confident eyewitness and the neglect of consideration of other factors
actually indicative of accuracy, including inter alia weapon-focus and the interval
between the incident and the identification (Cutler, Penrod and Stuve 1988: 53-54).
Furthermore, some of the psychological risks associated with eyewitness
identification evidence are counterintuitive. These include those risks outlined above,
such as stress negatively affecting the ability to process and recall memories. People
generally believe that situations that are highly unusual or stressful would increase our
ability to remember them with accuracy, but this is not the case.
Jurors’ misconceptions about what is indicative of accuracy, alongside their
lack of knowledge about the counterintuitive psychological risks associated with
eyewitness identification, present difficulties in practice when seeking safeguards
against wrongful conviction.
The Corroboration Requirement as a Solution
Corroboration has been generally accepted as a sufficient safeguard against the risks
of mistaken eyewitness identification in Scotland (Ferguson 2014: 44-45). However,
corroboration does little to combat the psychological variables that can induce
mistaken eyewitness identification nor juror misconceptions and over-reliance. The
requirement of two pieces of evidence that can be of minimal independent probative
value does not stop jurors relying on them on the basis of an erroneous assessment of
reliability (Ferguson 2014: 48-50). By the time corroboration operates, the damage
has already been done: a mistaken identification has potentially been made and might
have developed into a confident account by a witness, which is over-relied on by
factfinders based on their misconceptions.
Recommended Reforms
It is imperative that pre-trial safeguards are present due to the inherent frailty of
human memory and scope for its distortion by system variables. Safeguards at trial,
like corroboration, must operate in a wider system seeking to enhance the reliability
of eyewitness identification evidence and factfinders’ understanding of it, and should
be a last resort protection for accused persons (Dufraimont 2008: 265). There are
various safeguards that could be introduced in Scotland, such as exclusionary rules,
expert evidence or abolishing or restricting dock identification (Ferguson 2014; Baxter
2007: 166-167, 186-189). However, two safeguards could be a sufficient protection for
the factually innocent, without substantially infringing the criminal justice system’s
crime control purpose of convicting the factually guilty.
Firstly, the pre-trial identification procedure used by Scottish investigators
should be enhanced by legislation. The VIPER procedure currently used in Scotland
involves the use of photographs, successively shown to a witness at 15-second intervals
154 155