Professor Brandon Garrett's Work Cited in Overhaul of Massachusetts Jury Instructions on Eyewitness Evidence

Last week's Massachusetts Supreme Judicial Court decision to overhaul jury instructions about eyewitness evidence was informed by the work of University of Virginia School of Law professor Brandon Garrett.

Garrett's 2011 book, "Convicting the Innocent: Where Criminal Prosecutions Go Wrong" was cited in the decision, and Garrett served as a member of a National Academy of Sciences National Research Council committee that produced a 2014 report called "Identifying the Culprit: Assessing Eyewitness Identification" that was also referenced multiple times in the decision.

The instructions are intended to help jurors better assess the value of eyewitness testimony.

"Some scientific research on eyewitness memory is highly counterintuitive," Garrett said. "For example, the confidence of an eyewitness in the courtroom may not correspond to accuracy."

The new instructions cite the opportunity and conditions the witness had to view the event; the characteristics of the witness, such as eyesight; how much time has passed between the event and the identification; the witness's certainty; whether the witness may have had his memory affected by information from others; failure to identify or inconsistent identification; and the totality of the evidence.

The changes to the way eyewitness identifications are presented in Massachusetts courts are the third major overhaul of their kind, behind similar rulings in New Jersey and Oregon. In the New Jersey Supreme Court's 2011 decision, justices cited Garrett and UVA Law professor John Monahan, who had also testified in the hearings conducted before a Special Master.

Other states have made smaller updates to jury instructions on eyewitness evidence, Garrett said, while many provide no explanation of how eyewitness evidence is different, thus leaving it to jurors to judge the accuracy of an eyewitness based on their own common sense.

In the Massachusetts ruling, justices relied on recommendations and information from the National Academy of Sciences National Research Council committee report, which provided detailed summaries of the scientific research, as well as recommendations for improved practices and future research. Monahan also presented his work to the NRC study group, focusing on the uses of scientific framework evidence.

"Brandon Garrett's book and the recent report of the National Research Council committee of which he was a member had an enormous impact on the opinion of the Massachusetts Supreme Judicial Court. Indeed, both have been pivotal documents for courts across the country as judges become much more wary of the foibles of eyewitness identification," Monahan said.

Garrett's had earlier made a written submission to a study group convened by Massachusetts court, focused on a topic he explored in the article "Eyewitnesses and Exclusion" — the problems that can result when juries see an eyewitness confidently identify a defendant in court.

"It is obviously not hard to identify a defendant in the courtroom, sitting next to the defense lawyer, and without the 'fillers' that would be present in a lineup," Garrett said.

The Massachusetts decision noted that the jury should be focused on the first line-up procedure and not on subsequent identifications.

Garrett's book focused on examining eyewitness testimony in the cases of the first 250 people exonerated by DNA testing. More than two-thirds of the cases involved eyewitness misidentifications, according to Garrett.

"In the courtroom, almost without exception, the eyewitnesses were completely confident that they had picked the culprit," he said. "DNA ultimately showed otherwise. Most of those eyewitnesses had earlier expressed uncertainty at the lineups themselves, which were rife with suggestive procedures. The false confidence of eyewitnesses in those high-profile convictions of innocent individuals provides a cautionary lesson about the importance of getting lineups right, both at the police station and in court."

Garrett has also played a role in overhauling Virginia's model policy for police line-ups and eyewitness identification, and continues to track the policy's deployment.

Massachusetts courts have been asked to begin using the new, provisional instructions immediately. Model instructions will take their place once the public has had a chance to comment on their content and clarity.