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80 N.Y.U. L. Rev. 1895 (2005)
Beyond Admissibility: A Practical Look at the Use of Eyewitness Expert Testimony in the Federal Courts

handle is hein.journals/nylr80 and id is 1909 raw text is: BEYOND ADMISSIBILITY: A PRACTICAL
LOOK AT THE USE OF EYEWITNESS
EXPERT TESTIMONY IN
THE FEDERAL COURTS
JENNIFER L. OVERBECK*
Eyewitness testimony is an important, persuasive, and often pivotal element in
American trials. Jurors are strongly inclined to believe eyewitnesses, even in the
face of other contradictory evidence, such as fingerprints. However, thirty years of
psychological research into the workings of human memory have revealed that eye-
witness accounts are frequently flawed, either because the witness's original percep-
tion of the event was flawed, or because the memory was subconsciously altered
prior to testifying at trial. This, combined with jurors' inclination to trust eyewit-
nesses, leads juries to overcredit eyewitness testimony, resulting in false convictions.
To help avoid such erroneous outcomes, the legal system must find a way to close
the gap between eyewitness accuracy and juror belief in eyewitness accuracy. One
controversial option is the use of expert psychological testimony to educate the jury
about eyewitness fallibility. In this Note, Jennifer L. Overbeck draws on recent
psychological research indicating that while expert testimony may be the best way
of educating the jury, it is not successful in all circumstances. The Note argues that
lawyers must harness psychological research to determine the circumstances that
contribute to effective eyewitness expert testimony and incorporate this into their
trial strategies. The Note concludes by suggesting some concrete ways of doing so.
INTRODUCTION
Few kinds of evidence are as compelling, or as damning, as eye-
witness testimony: A human being, frequently a victim, takes the
stand, looks at the defendant, and says, He did it. Eyewitness testi-
mony is a staple element of criminal cases. In 1999, eyewitness identi-
fications led to 75,000 prosecutions in the United States.'
Unfortunately, juries' acceptance of faulty eyewitness identifications
* Copyright © 2005 by Jennifer L. Overbeck. B.A., 2002, Boston College; J.D., 2005,
New York University School of Law. My thanks go to Professor Paul Chevigny for his
advice and guidance throughout this project. I am also grateful to the entire editorial staff
of the New York University Law Review, especially Margaret Welles, Taja-Nia Henderson,
and Jon Hatch for their extensive editing help. Most of all, my thanks go to my family:
Dad, Kate, and Johnny, whose love and confidence are invaluable to me, and Jon, my
fiancd, who offered nothing but encouragement, patience, and support throughout this
project.
1 The Innocence Project, Mistaken I.D., http://www.innocenceproject.org/causes/
mistakenid.php (last visited Feb. 20, 2005); see also Alvin G. Goldstein et al., Frequency of
Eyewitness Identification in Criminal Cases: A Survey of Prosecutors, 27 BULL. PSYCHO-
NOMIC Soc'y 71, 72-73 (1989) (determining based on surveys of prosecutors that three
percent of felony cases involve crucial eyewitness evidence).
1895

Imaged with Permission from N.Y.U. Law Review

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