New Directions in Eyewitness Evidence Research and Practice:
After the 2014 National Academy of Sciences Report

I.

Introduction

In a 2014 report, the National Academy of Sciences (NAS) summarized the scientific research in the area of human visual perception, decision-making, and memory: “it is well known that eyewitnesses make mistakes, and their memories can be affected by various factors including the very law enforcement procedures designed to test their memories.”¹National Research Council, Identifying the Culprit: Assessing Eyewitness Identification 1 (2014). We note that three authors served as members of that NAS Committee. The views expressed in this report are our own.  The potential unreliability of human factors that underlie eyewitness reports has long been recognized from anecdotal examples of misidentifications²See, e.g. Edwin M. Borchard, Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice (New York: Garden City Publishing Company, Inc., 1932) (citing examples of eyewitness errors); United States v. Wade, 388 U.S. 230, 288 (1967) (“The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.”). and early research in the discipline of experimental psychology included studies involving decision-making in law.³Hugo Münsterberg, On the Witness Stand (New York: Doubleday, Page & Company, 1908). Decades of scientific research have uncovered sources of inaccuracy and underlying reasons for these errors and procedures have been offered for improving eyewitness identification performance.⁴ NAS, Identifying the Culprit, supra note 1.

In the seven years since the NAS report was published, important new contributions have been made by researchers and there has been increased adoption of reforms in eyewitness identification practices by courts, lawmakers, and law enforcement in the United States. The American Law Institute, as part of its Principles of Policing Project, adopted principles for law enforcement concerning eyewitness identifications.⁵ American Law Institute, Principles of Policing, Ch.11, Eyewitness Identification (Council Draft 2, 2019). The American Psychology and Law Society released a new White Paper summarizing research in the field and making new recommendations.⁶Gary L. Wells et al, Policy and Procedure Recommendations for the Collection and Preservation of Eyewitness Identification Evidence, American-Psychology and Law Society, 44 Law & Hum. Behav. 3 (2020). However, open questions remain in several of the areas that NAS report highlighted as important.

This report reviews advances in research and in our criminal legal system since the release of the NAS report. We base our findings on a systematic scoping review of empirical research in eyewitness identification, a workshop with researchers and legal professionals (November 2020), and surveys of leading respondents, as described below. This report also offers promising future directions for both research and practice. The NAS report encouraged research in new directions leading to new developments in the field, and we describe them here.

Keynote addresses

The two keynote addresses at this workshop, by Professor Thomas Albright and The Honorable Judge Jed Rakoff (NAS report co-chairs), are below.