For example, here is the current Massachusetts model jury instruction on eyewitness testimony: https://www.mass.gov/info-details/model-jury-instructions-on...
It mentions, for example:
> People have the ability to recognize others they have seen and to accurately identify them at a later time, but research and experience have shown that people sometimes make mistakes in identification.
> The mind does not work like a video recorder. A person cannot just replay a mental recording to remember what happened. Memory and perception are much more complicated.[a] Remembering something requires three steps. First, a person sees an event. Second, the person's mind stores information about the event. Third, the person recalls stored information. At each of these stages, a variety of factors may affect -- or even alter -- someone's memory of what happened and thereby affect the accuracy of identification testimony.[b] This can happen without the witness being aware of it.
Eyewitness testimony also just matters less these days. Today, the trial would have involved cell phone location tracking from the accused showing he wasn’t in the area at the time.
Correct. The numbers for both police and prosecutors are still anchored on convictions, and the police worldview is still largely based on the idea that the people they're dealing with are a "criminal class" who largely deserve to be in prison whether they happened to commit that particular crime or not.
Some eyewitness testimony is acceptable. People can be reliably expected to recognize people who they know. If a woman’s mother said that she saw the boyfriend hit her daughter, that’s an acceptable form of eyewitness testimony.
The kind of eyewitness testimony that should not be accepted, is when the person in question was not previously known to the witness. This kind of evidence has been proven time and time again to be entirely unreliable and should be considered no more compelling than lie detectors.
So, fsckboy, what we are doing today is not exactly what has been done since Cain and Abel, we took the ancient idea of eye witness and extended it beyond where it is reliable.
> One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established.
Deuteronomy 19:15 KJV. https://bible.com/bible/1/deu.19.15.KJV
Witnessing falsely was rightly a very big deal to them. It's one of the Ten Commandments, right up there with worshipping idols or committing murder. And according to the following verses of this passage, anyone who witnesses falsely will receive the exact same punishment that the accused would have received.
I just realized it looks like I'm calling him a bad name!
Edited, and my apologies.
you are hopelessly naive if you think the court system could operate only on technology the way you are suggesting. Nowhere did I even hint we should not use physical evidence.
Just like an AI can't make a perfectly accurate 3D replica of a face from a single 2D image, the human brain can't. But that doesn't mean it can't get closer and closer with more data.
It seems to me that the real problem is not eyewitness testimony itself, but the methods used to validate the degree of certainty behind it.
> when the person in question was not previously known to the witness
"Previously" implies a family member or neighbor. But if you were caught and tortured by someone you didn't previously know for awhile, you would still probably identify them pretty accurately.
If that was your only interaction with them, I doubt it. You're likely in the most stressful situation of your life, memorizing what a person looks like may not be high on your list of priorities.
There's the famous Ronald Cotton case where a woman was raped and consciously tried to memorize their attackers face. She proceeded to pick an innocent man out of two lineups until a decade later DNA evidence proved his innocence. The actual perpetrator was also in the lineup, and she swore she had never seen him.
Many of the cases of mistaken memory might simply be 'deliberate forgetting'
And we know of many cases where eyewitness accounts are wrong purely because human memory kinda sucks. Maybe some people are lying about what they know, but that doesn't make eyewitness accounts more reliable.
I find this unacceptable.
[edit] There's something called a preponderance of evidence. One eyewitness may or may not be able to provide that alone, e.g., "he has a tattoo of a dolphin on his penis". Multiple witnesses in tandem can add to the preponderance of evidence based solely on eyewitness accounts. Yes, it's worth it to free ten criminals to prevent convicting an innocent person; but if we accept that as a starting point, it's also immoral to discount witnesses or victims. Using one person who wrongly accused someone of rape to corroborate the idea that people are incapable of identifying the people who raped them is, frankly, gaslighting rape victims.
There are other forms of evidence that a genocide took place other than eyewitness testimony (orders, technical plans, the testimony of subordinates, physical evidence of mass killings). You would hope that a trial on crimes against humanity would have more than just eyewitness testimony.
> I find this unacceptable.
I also find it unacceptable for someone to be convinced based entirely on circumstantial evidence and eyewitness testimony, only to discover they were innocent decades later.
> [edit] There's something called a preponderance of evidence.
"Preponderance of the evidence" (meaning that it is more likely than not) is a lower bar than "beyond reasonable doubt" (which means what it says on the tin). What you described (having multiple corroborating witnesses) is actually not what preponderance of evidence means.
The original commenter obviously meant that a witness should be reasonably familiar with the person, whether that be from knowing the person prior to any crime or, in rare cases like kidnappings/torture/etc., during the prolonged period of time with the accused. It's not like we're writing legislature ourselves here; those rare cases probably just didn't come to mind when the original commenter wrote their comment. Informal internet commentary need not be so needlessly scrutinized.
But if we really want to be pedantic with your example, you would become familiar with the person from the "previous" torture sessions.
pretty sure Cain and Abel relied on having an omniscient Lord going around checking in on people https://web.mit.edu/jywang/www/cef/Bible/NIV/NIV_Bible/GEN+4...
to quote:
Then the LORD said to Cain, "Where is your brother Abel?" "I don't know," he replied. "Am I my brother's keeper?"
The LORD said, "What have you done? Listen! Your brother's blood cries out to me from the ground.
They are an imperfect approximation of an ideal truth finding endeavour implemented by imperfect humans. That doesn't mean that the imperfections are a feature, it means that as time goes on society should work towards making more accurate approximations of this truth finding process.
Just as we have done away with things like expert testimony on phrenology, cruentation, or trial by ordeal there may come a time when we do away with witness testimony or restrict the kinds of things we allow witnesses to testify about, like we already do with hearsay.
Have you considered that perhaps we’ve reached (or are approaching) the point where trials with eye witness testimony are undermining the trial system by making the average person feel the system isn’t doing it’s best to find the truth? If a method is hopelessly unreliable at finding the truth and people know it’s hopelessly unreliable at finding the truth and we continue to employ the hopelessly unreliable method as a means to find the truth it’s “silly” to think that the public would observe the process and conclude its “doing its best to find the truth”.
I guess there is no real incentive on the part of the criminal justice system to resolve this.