From historical cases like the conviction and execution of Sacco and Vanzetti to contemporary exonerations of death-row inmates through DNA evidence, it is not news that eyewitness testimony is sometimes inaccurate. What might be news, however, is that significant social science research makes plain that eyewitness testimony is often wrong, even in situations where they believe they are telling the truth. This means that eyewitness testimony may be entirely unreliable even if the witness does not intend to deceive the fact finder. Armed with this knowledge, lawyers and courts should reconsider how the rules of evidence treat eyewitness testimony.
Currently, the Federal Rules of Evidence assume that earnestly given testimony can be relied upon to be true in most situations, so long as that testimony is not inadmissible hearsay. In structuring the rules this way, firsthand eyewitness testimony has long been considered the ultimate form of evidence. By contrast, hearsay has been viewed skeptically unless it exhibits certain indicia of supposed reliability sufficient to qualify as a hearsay exception. The hearsay exceptions codified in FRE 803, however, are not based in science. Instead, they reflect the drafters’ untested perceptions about when people’s statements are more likely to be reliable.
