The Fallibility And Relevance Of Eyewitness Testimony

Introduction

Witnesses are the eyes and ears of justice’, stated Jeremy Bentham, an English philosopher, often regarded as the creator of contemporary utilitarianism. When a witness is unable to operate as the eyes and ears of justice, the trial gets putrefied and paralysed, and it is no longer possible to conduct a fair trial.[i]


Many criminal prosecutions rely heavily on eyewitness testimony. Eyewitnesses aid investigation by offering descriptions of crimes and perpetrators. They are often unwitting bystanders or victims of the crimes. Although eyewitness testimony has proven to be highly influential, memory recollection used as evidence is not always the evidence linking the defendant to the crime.

Given the reconstructive nature of memory, it brings into question the reliability of eye witness testimony. A typical cause of erroneous conviction is a mistaken identification. Since the beginning of the twentieth century, there have been concerns about the reliability of eyewitness testimony. Hugo Münsterberg questioned the credibility of eyewitness testimony in his book ‘On the Witness Stand (1908)­­’ where he demonstrated how psychology could contribute toward the correction of procedures and courtroom behaviour modification.

Several factors impair the potential accuracy of eyewitness testimony. Perhaps the most widely acknowledged are the limitations of human sense perception and the intricacy of the process of memory, which are the subjects of the majority of scientific psychological studies of eyewitness testimony.[ii]


Through this article, the authors will examine the admissibility and relevance of eye witness testimony and the drawbacks of reliance on the same. A historical analysis of eye witness testimony and the resultant convictions will shed light on the role innate discrimination plays in the judicial system as well as society as a whole.


Historical Analysis Of Eyewitness Testimony

In the past a lot of weightage was given to eyewitness testimony, so much so that in 1973 a committee called the Devlin committee was set up in England and Wales to examine cases based on identification parades, results of which showed that out of all the cases examined 74 percent were convicted solely on eye witness testimony.[iii] The fallibility of eyewitness testimony is well documented, with various factors influencing its outcome, systemic racism being one such factor.


The ‘Turnbull ruling’[iv] in 1977 identified various key factors that play a role in an eye-witnesses testimony and its influences, which includes the time a suspect has spent under observation, time between witness and the event, visibility, obstructions to the witness’s view, familiarity of the accused, anything that stands out in comparison to societal norms and passage of time that has passed. These guidelines appear to have been rooted in judicial intuition, rather than any systematic review of existing research evidence.

In India, before the enactment of the Indian Evidence Act, there was no particular enactment on the topic. The courts merely followed English rules of evidence in the presidency towns and outside of them law had no authority greater than custom.


The Britishers between the period of 1835 to 1853 A.D., laid down a series of rules which can be surmised via acts such as Lord Denman’s Act and Lord Brougham’s Act which were passed by the Indian legislature and superficially glossed over the law relating to witnesses.


Lord Denman's Act held that a witness should not be excluded from presenting evidence for reason merely of “incapacity for crime interest”, it also holds that all parties to the proceedings capable of discerning the procedure, their duty to speak the truth and the nature of oath are eligible as competent witness.[v] Lord Broughams Act stated that individuals on whose behalf a suit may be instituted or defended and spouses of the parties are competent and compellable witnesses.[vi]


The Legal Status of Eyewitness Identification

Witness statements should not be viewed in parts or in isolation, rather they must be read in conjunction with the testimony of other witnesses to arrive at a reasonable conclusion.[vii]It is to be noted that a court may act on the testimony of an individual witness, even though it is uncorroborated, only if the witness is completely reliable.[viii]


The Devlin Committee laid down recommendations based on the ‘Turnbull ruling’[ix], it was held that trial judges should be required to warn the jury that convicting a person based on a single eye witnesses’ testimony is not safe and should not be done except in extenuating circumstances, where the witness happens to have familial or bonhomie ties to the accused, or where there is substantial corroborative evidence.


The Supreme Court of India has also studied the role of eye witness testimony in the criminal justice system[x]. It noted that witnesses play an integral role in the criminal justice system and held that legislative measures need to be taken to protect said witnesses in order to ensure a fair trial.


With the advent of DNA profiling and CCTV for corroborating evidence, the fallibility of eye witness testimony has been brought into sharper focus like never before. In the USA, the innocenceproject.org was introduced to exonerate people convicted in the past on the basis of other evidence, especially eye witness testimony. Unfortunately, racial discrimination resulted in unfair convictions that grossly violated justice.


To deal with the downfalls of eyewitness testimony, police forces are now using the cognitive interview method, which involves reinstituting the context, reporting it and recollecting the event in various orders and from various perspectives. It has proven to be invaluable in order to enhance the testimony of eye witnesses and is endorsed by academics and forensic practitioners alike.[xi]


Conviction On The Basis Of Sole Eye Witness Testimony

As a general rule, when there is a solitary eyewitness of a crime, the Court may record a conviction against the accused if the witness is believed to be honest and truthful. Prudence dictates that some corroboration from other evidence be sought in support of the testimony provided by a lone witness, especially if the witness is closely linked to the deceased and the accused are those of some motivation or ill will. There is no legal stumbling block to convicting someone based only on the testimony of single witness.[xii] However, if there are doubts about the testimony, the court will insist on corroboration.


The Supreme Court has noted[xiii]: ‘There is no computerised rule. Nor are judges’ computers. It must always depend on the circumstances of each case and the quality of the evidence of the single witness.’.

The test is whether the evidence has a ring of truth about it, be it credible, cogent and trustworthy or otherwise. As a result, a competent court has authority rely solely on a sole witness and record conviction. Arguendo, if it is not satisfied with the quality of witness, it may acquit the accused despite the testimony of multiple witnesses. All these factors influence the credibility of an interested witness’s version, making it to accept their version without corroboration from an independent source.[xiv]


The witness’s credibility must be assessed by the Court based on the quality of the testimony. The evidence must be free of any flaws or suspicions, must appear to be entirely true, natural, and persuasive enough for the Court to record a conviction purely based on the testimony of a sole witness.


Conclusion

The testimonial situation always implicates more than just a witness's knowledge by bringing into play the complex rhetorical, social and ethical dimensions of human dialogue. In recognizing this, we are in fact rediscovering aspects of testimony that have at other times and in other places been granted a much greater prominence.


Law enforcement and the courts should follow the recommendations of social scientists when using and evaluating eyewitness techniques like line-ups. The courts have the authority and responsibility to properly instruct jurors, to refuse to admit evidence that lacks a basic level of trustworthiness, and to collaborate with justice system partners to improve the criminal justice system.


Memory is sieved via one’s perceptual lens, just because it is conveyed with confidence, detailed and infused with emotion, that doesn’t act as a flag bearer of reality. It is not an easy task to ascertain the truth from a testimony, independent corroboration plays a major role in the process. We as a society would benefit from remembering that memory, like so many other things in life is fragile.


[i] Himanshu Singh Sabharwal v. State of M.P. and Others, (2008) 4 SCR 783. [ii] See Loftus Andrea Frisch (2004). [iii] Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (1976). [iv] R v Turnbull, [1977] QB 224 [hereinafter “Turnbull”]. [v] 9 and 10 Vic. C.95 of 1843. [vi] 6 and 17 Vic. C.83 of 1852. [vii] Shyamal Ghosh v. State of West Bengal, AIR 2012 SC 3539. [viii] Ramesh Krishna Madhusudhan Mayar v. State of Maharashtra, AIR 2008 SC 927 at p. 929. [ix] Turnbull supra note 5. [x] Vikas Kumar Roorkewal v. State of Uttarakhand & Ors, (2011) 2 SCC 178. [xi] Laura Hammond, et. al, Facilitating eyewitness memory in adults and children with CR and focused meditation, Journal of Investigative Psychology and Offender Profiling 3(2), 117-130 (2006). Available at: https://www.researchgate.net/publication/229966053_Facilitating_eyewitness_memory_in_adults_and_children_with_CR_and_focused_meditation. [xii] The Indian Evidence Act, No. 1 of 1872, Section 134. [xiii] Madan Lal v. State, (1978) Cr LJ 1832 at 1835 (SC). See Ramesh Bhagwan Manjrekar v. State, 1997 Cr LJ 796 (Bom). [xiv] Mahavir Singh vs. State of M.P., (2016) 10 SCC 220.


Praneesha Nayar and Isha Sheroff are fifth year students at the Presidency University, Bangalore.



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