Podcast Episode Discusses Weakness in Eyewitness Identifications and Their Use in the Courtroom

Empty Courtroom

By Samantha Springer, a research assistant at the Center for Statistics and Applications in Forensic Evidence (CSAFE)


Eyewitness identification was discussed in episode seven of The Ongoing Transformation, a podcast sponsored by Arizona State University and the National Academies of Sciences, Engineering, and Medicine (NAS). Jed Rakoff, senior United States district judge for the Southern District of New York and who worked with the National Academics to publish the 2014 report on eyewitness identification, spoke about his book, “Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System.”

Although eyewitness identification is a form of evidence very compelling to jurors, Rakoff suggested there are many reasons such evidence should be met with more skepticism. In the 375 exonerations the Innocence Project has been involved with since 1989, it was found that nearly 70% of them involved eyewitness misidentification.

Some of the reasons for these misidentifications are simple situational causes, such as lighting, an obscured view, and a tendency to focus on a weapon rather than on the details of the person handling it.

Other reasons to be cautious of eyewitness testimony are more psychological. One concern Rakoff mentions is the racial effect, in which members of the same race are more capable of distinguishing minute facial details compared to a person of a different race. Another factor at play is memory. In an example given by Rakoff, when an eyewitness begins going through a photo lineup, they may have an image of the person they saw for a few moments in rough detail in their minds. After picking a photo, the details from their sighting and the details in the photo begin to merge until the eyewitness testifying at trial months later is certain of their wrongful identification.

A solution for decreasing this high number of eyewitness misidentifications suggested by Rakoff is to educate prosecutors on the fallibility of memory and vision and identify when those flaws affect an identification. A way he suggests this could be done is to replicate a program required of all federal judges in the United States he dubbed “baby judge school,” but whose technical name is the “Phase 1 Orientation Seminar for Newly Appointed District Judges.” This program educates judges on many concepts of the legal system, from ethical concerns they’ll need to be aware of, how to organize caseloads, and how to make evidentiary decisions. Rakoff believes a similar program could teach prosecutors more about eyewitness identifications and their limitations.

Rakoff is also in favor of adopting a U.K. practice in which criminal prosecutors spend six months working as a criminal defense attorney every three years. He believes that, among other things, this can provide prosecutors with important insights on how to handle forensic evidence in cases.

Regarding forensic science reform in general, Rakoff believes the National Commission on Forensic Science, created under President Obama and whose term lapsed under President Trump, should be renewed. In its four years, the commission made 59 recommendations to the Department of Justice that could also be applied to state police and prosecutors.

Additionally, Rakoff believes that The National Institute of Forensic Sciences should be created. This institute was a suggestion made in the National Academy of Science’s 2009 report ​​Strengthening Forensic Science in the United States: A Path Forward. According to the report, this institution would consist of unbiased scientists with no connections to law enforcement or crime labs, who would review different forensic science methods and determine how each could be improved.

To end the interview, Rakoff stated that despite the flaws and need for reform he’s seen in the criminal justice system, he’s optimistic for the future.

To listen to or read the transcript from Episode 7: Shaky Science in the Courtroom, visit https://issues.org/episode-7-shaky-forensic-science-courtroom-rakoff/.

AAFS Cooperative Agreement with NIST Provides Standards Resources and Training to the Forensic Science Community

AAFS Standards Resources & Training

The American Academy of Forensic Sciences (AAFS) announced in December 2021 a cooperative agreement with the National Institute of Standards and Technology (NIST) to develop training, tools and resources to enhance implementation efforts and broaden awareness of forensic science standards among communities of interest.

According to the AAFS news release, “Training will address technical aspects of the standards as well as challenges, practical solutions and benefits of adoption. Resources, including auditing checklists for compliance monitoring and gap analysis, will also be developed, as well as factsheets, understandable to the layperson.”

AAFS said these resources would help advance the implementation of standards and guidelines listed on the Organization of Scientific Area Committees (OSAC) for Forensic Science’s Registry.

The standards training and resources can be found on the AAFS website at www.aafs.org/research-insights-featured/standards-resources-and-training. The resources are available at no cost to the public.

The webpage includes information about the cooperative agreement, upcoming webinars, videos on the standards, standards checklists (coming soon) and the AAFS Standards Factsheets.

The AAFS Standards Factsheets provide a summary of each standard and highlight its purpose, why it is important, and what its benefits are. AAFS notes that the factsheets are in continuous production, and more will come soon. There are currently 12 published factsheets available to download.

The factsheets include:

  • ANSI/ASB Standard 018 Standard for Validation of Probabilistic Genotyping Systems
  • ANSI/ASB Standard 020 Standard for Validation Studies of DNA Mixtures, and Development and Verification of a Laboratory’s Mixture Interpretation Protocol
  • ANSI/ASB Standard 036 Standard Practices for Method Validation in Forensic Toxicology
  • ANSI/ASB Standard 037 Guidelines for Opinions and Testimony in Forensic Toxicology
  • ANSI/ASB Standard 040 Standard for Forensic DNA Interpretation and Comparison Protocols
  • ANSI/ASB Standard 061 Firearms and Toolmarks 3D Measurement Systems and Measurement Quality Control
  • ASTM E2329-17 Standard Practice for Identification of Seized Drugs
  • ASTM E2548-16 Standard Guide for Sampling Seized Drugs for Qualitative and Quantitative Analysis
  • ASTM E3245-20e1 Standard Guide for Systematic Approach to the Extraction, Analysis, and Classification of Ignitable Liquids and Ignitable Liquid Residues in Fire Debris Samples
  • ASTM E3260-21 Standard Guide for forensic Examination and Comparison of Pressure Sensitive Tapes
  • NFPA-921 Guide to Fire and Explosion Investigations
  • NFPA-1033 Standard for Professional Qualifications for Fire Investigations

The Center for Statistics and Applications in Forensic Evidence (CSAFE), a NIST Center of Excellence, has several researchers who serve on the OSAC Forensic Science Standards Board (FSSB), subcommittees and resource task groups, including Jeff Salyards, a CSAFE research scientist, who serves as an FSSB member at large, and Danica Ommen, a CSAFE researcher, who serves as the chair of the Statistics Task Group. Learn more about how these groups help the development of scientifically sound standards and guidelines for the forensic science community at https://www.nist.gov/osac/osac-organizational-structure.

NIST Seeks Public Comment on Draft Report of Digital Forensic Methods

Working on a Laptop

The National Institute of Standards and Technology (NIST) has published Digital Investigation Techniques: A NIST Scientific Foundation Review. The draft report will be open for public comments through July 11, 2022.

The report reviews the methods that digital forensic experts use to analyze evidence from computers, mobile phones and other electronic devices.

According to a news release from NIST, the authors of the report examined peer-reviewed literature, documentation from software developers, test results on forensic tools, standards and best practices documents and other sources of information.

The news release also stated that the report discusses several challenges that digital forensic experts face, including the rapid pace of technological change, and recommends better methods for information-sharing among experts and a more structured approach to testing forensic tools.

NIST will host a webinar to discuss the draft report and its findings on June 1 from 1–3 p.m. EDT. For more information about the webinar and to register, visit www.nist.gov/news-events/events/2022/06/webinar-digital-investigation-techniques-nist-scientific-foundation.

Read the full news release on the report at www.nist.gov/news-events/news/2022/05/nist-publishes-review-digital-forensic-methods.

The Center for Statistics and Applications in Forensic Evidence (CSAFE), a NIST Center of Excellence, conducts research addressing the need for forensic tools and methods for digital evidence. Learn more about this research at forensicstats.org/digital-evidence.