-By Subhasree Neogy*
Eyewitness testimony can be described as the personal account of any individual present at, or near the scene of a crime or accident. In any criminal investigation, eyewitnesses are depended upon to shed some light on the facts of a case unknown to the authorities, because the eyesight of a human being is considered to be correct in any situation as it is the closest to getting a proper idea about the manner of the commission of a crime. Such testimony is usually trusted and frequently employed to either acquit or convict accused persons in criminal cases, but on the contrary, there lies an enormous amount of existing literature that proves this practice to be rather unwarranted. The bigger problem that occurs because of this, is the delivery of wrongful convictions, leading to gross injustice.
Eyewitnesses making mistakes in giving their version of the story usually happens due to mental flaws outside of the control of the person, making it all the more unreliable. The human memory is extremely susceptible to deviations and research shows that there are exactly three steps that come before a witness talks to somebody asking for pertinent details, being the perception of the incident, the retention of such details absorbed and the retrieval of these details when required.
The first step has been named perception because it entails not only recording by the brain, but also the bias of the person and is manipulated on many levels. The factors affecting the perception of a person are called estimator variables, which may be the lighting of the place, the distance between the witness and accused, flashing weapons etc. and cannot be controlled in any way. The witness having in-built biases hugely affects his perception due to them intervening in the process of simply taking in the facts and becomes what they want to see, instead of what happened, making their testimony a wrong interpretation of the event.
After the perception of an incident, the next step is the retention of such information and this stage is the one where the maximum amount of aberrations occurs, owing to the natural deterioration of memory over time. A person remembers less and less of something as time passes, and this is because of time as well as the addition of new memories, causing eyewitness testimony to get rather worn out by the time the person finally speaks about it.
The final stage is the retrieval of memory by an eyewitness, wherein usually, questions are answered to pinpoint the perpetrator of a crime by investigators. If the details of an event can veer so much off course inside the mind, even the retrieval can result in severe damage, as there are factors that affect this, called systemic variables. Systemic variables are those that can be controlled by the justice system, like the method and type of questions posed, suspect line-ups and suggestions given.
The U.S. Supreme Court in the 1972 case of Neil v. Biggers, decided upon five criteria to assess the accuracy of eyewitness identification. These are the confidence of a witness regarding an identification made, the quality of view of the perpetrator, the amount of attention paid, the similarity of the witness’s description of the culprit with the defendant and the amount of time between witnessing the crime and making an identification.
Confidence as an Accuracy Detector
Among the five criteria laid down by Neil v. Biggers, the certainty or confidence with which an eyewitness makes an identification could be labelled as the most deceptive owing to it being the most versatile. Practically speaking, our current justice system is bound to give more importance to a witness who identifies a suspect with high certainty than one who does it without much surety. Most investigators consider confidence and accuracy to be directly proportional to each other, a concept that results in several wrongful convictions.
The estimator variables of a crime have been proved to be subconsciously disregarded in comparison to the confidence level of a witness. Such variables are usually only taken into account when the witness is uncertain about his or her identification. Certainty as a factor should not be blindly banked upon because true certainty can logically only come from adequate attention having been paid and certainty is usually fabricated by the human mind over the passage of time and influence of social interactions.
The glitches in eyewitness testimony begin from the stage of perception of a crime itself, and a witness already equipped with a fallible memory is very likely to attain confidence through the course of answering several questions describing the event. Confidence may be an influential factor that is outside the control of the witness, but the system variables in place may be managed to improve the damage caused by falsely implicative testimony. The plausible solution to this problem could be to ensure that a witness is immediately interviewed after a crime is reported and the confidence level must be recorded to avoid further confusions due to its inevitable inflation.
The malleability of confidence is such that it definitely gets elevated because of the fickle nature of human memory exposed to corruption, with regrettably no corresponding increase in the accuracy of the identification so made. Eyewitness confidence is also sensitive to interactions with different people having witnessed the same incident, overhearing related news and other post-event information that mixes up with the witness’s original observations, resulting in severely distorted testimony. An eyewitness’s confidence level before testifying in a courtroom must be intricately scrutinised to try and control the irreversible mistakes that are frequently made by the prosecution.
The Indian Evidence Act provides laws for the witnesses to a case, wherein Sections 118, 121 and 133 specifically target the physical and mental capacity of a witness to contribute to an investigation. The rationality and minimum ability to comprehend and answer questions have been given in Section 118. Furthermore, Section 134 lays down that there is no particular number of witnesses required to prove a point. Additionally, the court in Amar Singh v. Balwinder Singh & Ors. held that if multiple witnesses have seen the same event, not all of them are required to be examined and questioning only a few shall suffice.
This gives rise to a disparity in the seemingly correct process of investigation followed because even multiple eyewitnesses of an incident are prone to re-creating their versions of the facts to match that of another. Such an influence overrides what a witness may have actually seen due to the psychological need to be correct or not to have differing views. Thus, the confidence level of an individual rises and falls in accordance with the situation, not remaining unscathed as it technically is expected to. Instructions to law enforcement to effectively separate witnesses until they are individually questioned could be considered for a better evaluation of the overall quality of evidence.
The competency of an eyewitness should be decided on traits supplementary to age and mental stability and account also for the contamination of memory, as leaving it only to the defence lawyer’s cross-examination to break down an inaccurate witness is problematic, considering how much more difficult it is to attack the credibility of someone providing mistaken details while under the staunch notion of being correct simply due to a generated sense of confidence.
Studies have been conducted to prove that there may not even be any relationship between confidence and accuracy and to continue relying on this conception would be an inadvertent practice of criminal trial. Loopholes within eyewitness testimony occur because of the very common yet known drawbacks of human memory, which is why such testimony should be admitted into evidence only after a careful review of the witness’s status after the incident.
The rules of investigation and management of systemic variables in the criminal justice system of India needs to be revised due to the underlying fact that many convictions are passed based on ignored defects in evidence gathered against a suspect. Most of the wrongful decisions are made while adhering to the age-old belief that testimony inspiring confidence is worthy of credit, and a more dissected form of investigation must be incorporated to reduce injustice by system failure especially considering the immense population and tribulations of appeal.
*The author is a 3rd year student pursuing B.Com. LL.B. (Hons.) from Institute of Law, Nirma University.