ABSTRACT
Historically, there has been an ebb and flow in the willingness of the American judicial system to admit testimony from experts in eyewitness memory. Some judges have indicated that eyewitness testimony is fallible and that experts can offer valuable information that will assist the trier of fact. Over 30 years ago, Justice Bazelon, in a concurring opinion in United States v. Brown, 461 F.2d 134 (D.C. Cir. 1972), commented on how crucial eyewitness identifications are to the fairness and reliability of convictions, which speaks directly to the need for eyewitness experts:
One critical problem [of eyewitness identifications] concerns their reliability, yet courts regularly protest their lack of interest in the reliability of identifications, as opposed to the suggestivity that may have prompted them, arguing that reliability is simply a question of fact for the jury. There already exists, however, great doubts—if not firm evidence—about the adequacy and accuracy of the process.… We need more information about the reliability of the identification process and about the jury’s ability to cope with its responsibility. For it should be obvious that we cannot strike a reasonable and intelligent balance if we take pains to remain in ignorance of the pitfalls of the identification process. The empirical data now available indicates that the problem is far from fanciful. But for a variety of reasons we have been unwilling to face up to the doubts to which this data gives rise.… We have developed a reluctance that is almost a taboo against even acknowledging the question, much less providing the jury with all of the available information.… More information is needed to assist the jury’s resolution of identification issues, [and] our doubts will not disappear merely because we run away from the problem. (461 F.2d at 146, n.1)
