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30 N. Ky. L. Rev. 471 (2003)
Establishing the Relevance of expert Testimony Regarding Eyewitness Identification: Comparing Forty Recent Cases with the Psychological Studies

handle is hein.journals/nkenlr30 and id is 481 raw text is: ESTABLISHING THE RELEVANCE OF EXPERT TESTIMONY REGARDING EYEWITNESS IDENTIFICATION: COMPARING FORTY RECENT CASES WITH THE PSYCHOLOGICAL STUDIES by Edmund S. Higgins, MD.* and Bruce S. Skinner, MD.! I. INTRODUCTION There is a long history of researchers, mostly academic psychologists, staging crimes in front of students to demonstrate the problems involved with human memory and eyewitness identification.' It has been reported that one of the first such demonstrations was approximately one hundred years ago by a German professor in Berlin.2 Since that time, thousands of studies have been conducted and reported in academic journals, as well as in the popular press.3 These researchers have consistently and repeatedly shown that many factors can affect the accuracy of acquisition, storage and retrieval of memories, as it relates to eyewitness identification.4 Edmund S. Higgins, M.D. is board certified in Family Practice, General Psychiatry and Forensic Psychiatry. He is a Clinical Assistant Professor of Family Medicine and Psychiatry at the Medical University of South Carolina. He is the author of the Wrongful Convictions website and database. Dr. Higgins has a private practice in psychiatry and is the medical director of psychiatric services at the Charleston County Detention Center. t Bruce S. Skinner, M.D. is a primary care internist in Charleston, South Carolina. 1 See generally EuZABETH F. LoFTus, EYEWITNESS TESTIMONY (1996) (explaining how researchers have studied and identified many factors comprising witnessing an event, including individual perceptions, the way people store memories, how memories are retrieved, and external elements that can subtly alter memory). 2 id. at 20-21. According to history, Professor von Liszt, a famous criminologist of the time, was teaching a class when two students engaged in a heated argument that ended in gunfire. Id. No one was hurt, but the professor insisted that each student in the class provide a detailed description of the incident. Id. Afterward, Professor von Liszt admitted that the episode had been staged in order to conduct an experiment. Id. After reading the students' accounts, the professor determined that many witnesses omitted significant, essential parts of the encounter, while other students invented actions and dialogue that never happened. Id. 3 Steven D. Penrod, Solomon M. Fulero & Brian L. Cutler, Expert Psychological Testimony on Eyewitness Reliability Before and After Daubert: The State of the Law and the Science, 13 BEHAV. Sci. & L. 229, 245-46 (1995) (noting that one of the article's authors maintained a bibliographical eyewitness research that contained over 2000 references, and many new books were being Vublished on psychological studies of eyewitness identification). See generally BRIAN L. CUTLER & STEVEN D. PENROD, MISTAKEN IDENTIFICATION: THE EYEWITNESS, PSYCHOLOGY, AND THE LAW (1995) (discussing factors that affect eyewitness memory and how expert testimony is needed at trials to explain these factors); ELIZABETH F. LOFTUS & JAMES M. DOYLE, EYEWITNESS TESTIMONY: CIVIL AND CRIMINAL (3d ed. 1997) (providing both summaries of research into eyewitness identification and helpful ideas for defense attorneys to challenge eyewitnesses); DAVID F. Ross, J. DON READ & MICHAEL P. TOGLIA, ADULT EYEWITNESS TESTIMONY: CURRENT TRENDS AND DEVELOPMENTS (1994) (compiling research articles based on information presented at a symposium of the American Psychological Society in 1991); DANIEL L. SCHACTER, SEARCHING FOR MEMORY: THE BRAIN, THE MIND, AND THE PAST (1996) (describing firsthand accounts of treating persons with memory disorders due to psychological trauma or physical brain injuries); CHARLES P. THOMPSON ET AL., EYEWITNESS MEMORY: THEORETICAL AND APPLIED PERSPECTIVES (Charles P. Thompson et al. eds., 1998) (presenting research articles on

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