By D.W. MILLER
Until a few years ago, when the U.S. Department of Justice
invited six psychologists to help reshape police procedures
for eyewitness identification, scholars had only one way to
influence criminal justice: one defendant at a time. Many have
themselves testified to educate juries about the pitfalls of
Like a lot of his colleagues, Gary L. Wells, a psychologist at
Iowa State University who testifies four or five times a year,
got into that line of research in part to save innocent
defendants from false imprisonment, and to force police to
improve methods for interviewing witnesses and identifying
suspects. "There was a time 20 years ago when I was so naive
as to think that all I had to do was document the problem and
the police would change their procedures," he says. But
eventually he decided that "the courtroom was never the place
to have that kind of impact."
"Judges are reluctant to tell police how to do their jobs," he
says. And judges tend to hew to the established view that
juries are the arbiters of witness credibility.
That has been changing slowly. In 1993, the U.S. Supreme Court
ruled in Daubert v. Merrell Dow Pharmaceuticals, Inc. that new
federal rules of evidence permitted a broader standard for
allowing expert psychological testimony. Since then, says
Solomon Fulero, a psychologist at Sinclair Community College,
in Dayton, Ohio, several convictions have been overturned
because the trial judge had not allowed such experts to
Still, there's a limit to the broad change that scholars can
effect by testifying. According to Mr. Wells, there just
aren't that many experts: About 50 to 75 psychologists testify
in court regularly, and only about 25 of them actually do
original research in the field.
Furthermore, their services can be pricey. While rates vary
widely, the psychologists themselves report fees of up to
$3,500 a case, although most will take some clients pro bono.
In general, the experts try to avoid challenging the
credibility of individual witnesses or the conduct of the
police officers who worked with them. "The goal of the defense
is to cast doubt on the credibility of a particular witness.
But that's not my job," says Mr. Fulero, who was invited to
join the Justice Department's eyewitness-testimony panel
because of his courtroom experience, not his scholarly vitae.
What he can testify to, he explains, is that "eyewitnesses are
not as accurate, over all, as the jurors believe them to be."
Unfortunately for defendants, that means the research doesn't
always help their cause.
"The deep problem," says James M. Doyle, a Boston defense
lawyer who served on the panel, "is that the research is all
statistical and probabilistic, but the trial process is
clinical and diagnostic." In other words, a jury expects the
experts to say whether a witness is right or wrong, when all
an expert can really do is explain how to assess the odds.
Mr. Wells echoes many of his colleagues when he says that he's
not really in it for the money. He was among the half-dozen
scholars who helped to fashion the new Justice Department
guidelines for handling eyewitness testimony. If they are
widely adopted, he says, "we have no business in the courtroom
on this issue. My purpose is to make expert testimony
He may get his wish. According to participants, prosecutors on
the Justice Department panel were concerned that quick-witted
defense lawyers would use the new guidelines to impeach
Mr. Doyle, who has co-written a lawyer's guide to the
research, Eyewitness Testimony, calls that a reasonable fear.
In the past, his colleagues have had difficulty incorporating
the science into their cross-examination techniques, because
they haven't taken the trouble to understand the research
methods, he says. Now they won't have to.
On the other hand, he doubts that's a bad thing. "One thing
police and defense lawyers share is that we don't really want
to deal with innocent people. It's not necessarily easier or
better for me to represent innocent people. I would just as
soon the police did their jobs."