FEDERAL COURTS LAW REVIEW -- 2006 Fed. Cts. L. Rev. 3
WHY JUDGES SHOULD ADMIT EXPERT TESTIMONY ON THE UNRELIABILITY OF EYEWITNESS TESTIMONYBy Henry F. Fradella, J.D., Ph.D., The College of New Jersey
Abstract
Although most researchers have found general consistency in the
ways in which courts have applied Daubert to social scientific evidence,
one of the major areas of inconsistency concerns rulings on the
admissibility of expert testimony about unreliability of eyewitness
identifications. This article argues for a harmonization of this
inconsistency by taking the minority approach to the issue: allowing
such expert testimony. In support of the argument, the article summarizes
the psychological literature on perception and memory (including
both estimator variables and systemic variables) in the context
of eyewitness identifications. The article then examines the inconsistent
treatment of this research by the courts, asserting that courts
often misunderstand the relevant psychological literature, thereby
unwittingly contributing to wrongful convictions. The article ends
by making legal and policy recommendations that expert testimony
on eyewitness identifications be admissible under the rules of evidence.