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The following is a summary of a criminal trial for armed robbery (robbery in the first degree). Please read these materials as if you were a juror in the case. After reading the trial summary, you will be asked to render a verdict in the case and to answer several questions about the trial and the witnesses. Please read carefully, as if this information would be used to decide the fate of a real criminal defendant.

The prosecuting attorney opened his case by stating that he would prove beyond a reasonable doubt that the defendant, John Trent, committed armed robbery. The evidence will show that he went into the convenience store with a gun, threatened the store clerk, and robbed the store of $120. The evidence that will prove this is the testimony of the only eyewitness - the store clerk. She saw the defendant commit the crime, and she identified him in a lineup soon after the crime occurred. The police officer who arrested the defendant will also testify. He found the defendant in a bar, without an alibi, and carrying a lot of cash. Then, he arrested the defendant after he was identified in the lineup.

The defense attorney opened his case by stating that he would show there was a lot of reasonable doubt in the prosecution’s case. The jury would see that the only evidence brought by the prosecution will be a scared victim and a suspicious police officer. The prosecution’s best evidence is the lineup identification of the defendant. The defense will bring evidence that will show that this identification was not reliable and that the victim made a mistake in identifying the defendant. The jury will hear evidence from an expert in eyewitness identification which will show this. And the defendant will testify that he was no where near the convenience store at the time of the robbery.

Prosecuting Attorney:

Ms. Smith, what happened on the night of Jan. 5^th?

Jane Smith:

I was working at my job as the night clerk at the neighborhood 24 hour convenience store. At about 1:15 am, a man ran in the door and up to where I was standing at the cash register, which was about 10 feet from the door. He was Caucasian, about 5'8" tall, with brown hair and an average build. He was wearing a dark colored stocking cap, jacket, and gloves. He was carrying a gun and said to me "gimme the money."

Prosecuting Attorney:

And what did you do?

Jane Smith:

I felt like she was frozen, and I just stood there for a second until he pointed the gun at me and repeated "gimme the money." I opened the cash drawer and gave him the money. I was very scared and was shaking when I handed him the cash. The robber ran out of the store.

Prosecuting Attorney:

How long did all of this take?

Jane Smith:

The whole thing took about a minute.

Prosecuting Attorney:

How much money did the robber take?

Jane Smith:

There was about $120 in mixed bills in the register.

Prosecuting Attorney:

What happened next?

Jane Smith:

After the robber left, I called the police, who came and got a description. The next day, the police called me at home and said they had a suspect in custody. I went to the police station and was asked to identify the man who robbed me in a lineup. I identified the defendant. I knew right away which one he was.

Prosecuting Attorney:

So you were very confident that you picked the right person out of the lineup?

Jane Smith:

Yes, I was very confident in the choice I made in the lineup.

Prosecuting Attorney:

Officer Brown, what is your experience with this case?

Officer Brown:

I was the officer who responded to the convenience store when Ms. Smith called to report the robbery. I took down her description of the incident and the robber.

Prosecuting Attorney:

Who did you think the description reminded you of?

Officer Brown:

I thought I recognized him as being John Trent, the defendant. I had arrested Trent in the past for some small burglary of local stores, although I’ve never arrested Trent for using a gun or committing any violent acts.

Prosecuting Attorney:

What did you do next?

Officer Brown:

After speaking with Ms. Smith, I went over to John Trent’s apartment. He was not at the apartment, but his roommate said he was at O’Neils, the bar on the corner. I went to O’Neils and found Trent there drinking at the bar. He was wearing a dark jacket. I asked him where he was at 1:15, and Trent said he was playing pool in the back room of the bar. The person he said he was playing with was not in the bar anymore, and the I were unable to find him. No one else in the bar saw Trent playing pool around that time. The bartender said the first time he saw Trent was after 1:30. I searched Trent for the gun, but I didn’t find it. I did find $100 in cash in Trent’s pocket. Knowing Trent’s reputation as a petty thief, I thought this was suspicious. I asked Trent to come down to the police station with me.

Prosecuting Attorney:

Tell us a little bit about the lineup.

Officer Brown:

The next morning, I rounded up some people who looked like Trent to put in the lineup with him. Trent was still wearing what he had on the night before - a dark jacket. The other people I put in the lineup were wearing lighter colored clothes. When Ms. Smith came into the station, I told her that we had a suspect. In the identification room, I told her she should pick out the person who robbed her store. Smith identified Trent. Then, I arrested Trent for robbery in the first degree.

Defense Attorney:

What were you doing on the night of the robbery?

John Trent:

Well, I wasn’t robbing the convenience store. I was at O’Neils all night.

Defense Attorney:

What happened at O’Neils?

John Trent:

I went down to O’Neils at around midnight, and it was crowded. I went into the back room with the pool table first. I didn’t talk to anyone on the way to the pool room. You can’t see the pool room from the bar. There was a guy playing pool in there by himself. He said his name was Jack and that he was just passing through town. So, I asked him if he wanted to play a game. I racked the balls while Jack got some beer for us. Because Jack kept getting the beers, I never went to the bar myself while we were playing. We played for $20 a game, and I won about $100 from the games. Jack left at about 1:45, saying he was leaving town but he didn’t say where he was going.

Defense Attorney:

What did you do next?

John Trent:

I went to the bar to drink some more. After a few beers, Officer Brown came in and started asking me questions. I told him I didn’t rob the store, that I was just playing pool in the back room. I wanted to cooperate, so when he asked me to go down to the station with him, I went. I kept telling him I didn’t do it.

2) Dr. Lawrence Jones (expert witness)

Defense Attorney:

Would you please tell us a little bit about yourself?

Dr. Jones:

My name is Lawrence Jones. I have a Ph.D. in psychology from the University of Minnesota. Right now, I am working as a professor at the University of Connecticut, where I am the Chair of the psychology department and have been teaching and doing research for 25 years.

Defense Attorney:

What kind of research do you do?

Dr. Jones:

My area of research is in how reliable eyewitnesses are. Recently, I’ve been doing research specifically on the effect of lineup instructions on eyewitness accuracy in a lineup identification.

Defense Attorney:

Ok, we’ll get to that research in a little bit Dr. Have you heard the testimony of the victim of the robbery and of the police officer who conducted the lineup and arrested Mr. Trent?

Dr. Jones:

Yes, I have.

Defense Attorney:

What other preparation have you done for your testimony today?

Dr. Jones:

I reviewed the police reports. I was looking for information related to the techniques employed when conducting the eyewitness interview, the selection of foils for the lineup, the procedures employed when the lineup was conducted, and any other information related to the identification of the defendant. Although I’ve been doing research in the area of eyewitness reliability for several years now, I also reviewed some of the research in the field to refresh myself on the findings.

Defense Attorney:

And what do you mean by research?

Dr. Jones:

I am referring to the results of empirical studies which have been conducted. A researcher develops a theory related to some factor that might affect an eyewitnesses. The researcher forms a hypothesis about the effect of this factor on the eyewitness. Then, an empirical study is created to test the theory’s veracity and whether the hypothesis is true or false. This study might simulate an eyewitness situation and then test theory about what makes an eyewitness more reliable or less reliable. Studies like this have been done which test many factors that exert an effect in eyewitness identifications.

Defense Attorney:

So these aren’t just people’s theories, right?

Dr. Jones:

No, this research is based on testing people’s theories by making a hypothesis about the research results and then testing that hypothesis to see if it is right or wrong. For example, a researcher might hypothesize that a procedure employed by the police might result in a false identification. To test this theory, an experiment would be conducted in which an event would be staged for the research participants, such as a theft in the laboratory. Usually then a lineup is staged and we manipulate how that lineup is conducted to see if differences in the procedures used makes witnesses more or less accurate in their identifications. Essentially, we simulate an eyewitness situation and a lineup where we definitely know the lineup includes the perpetrator observed in the staged event. When differential performance is observed due to the experimental manipulations, then we conclude that performance was caused by the different procedures we have used. All other factors which could affect the results are controlled and held constant. This is how we test the theory that different lineup procedures affect the accuracy of identifications.

Defense Attorney:

What research did you review that might be relevant to the identification of the defendant in this case?

Dr. Jones:

Well, there are a few issues I observed concerning the lineup that the research addresses. First, there is the issue of the witnessing conditions. Typically, the longer the opportunity for observation is, the better the memory will be and the more likely it is that an identification will be correct. When the opportunity for observation is shorter, memory may be inferior and the likelihood of accurate identification decreases. This crime occurred in approximately a minute. This does not constitute a very long interval for viewing the robber, especially considering the other situational factors. For example, being the victim of a crime can be a high stress situation. Stress can affect how an individual remembers a situation. When the level of stress is high, then the memory of the situation may not be as accurate. This isn’t always true - sometimes a moderate level of stress improves memory retention, as when one is studying for an examination. However, when there is a weapon involved, not only is stress increased, but other deleterious effects on memory might occur. Research in this area has demonstrated that when a weapon is present, the focus of the victim’s attention will on the weapon instead of on the perpetrator. The victim might have an exemplary memory of the weapon. However, because attention was focused largely on the weapon, subsequent details such as the characteristics of the perpetrator were not attended to or were forgotten. This is identified as the "weapon focus" effect.

Defense Attorney:

Ok, so the time a witness has to view the robber, their level of stress, and the presence of a weapon can all affect the quality of the witness’s memory?

Dr. Jones:

Yes.

Defense Attorney:

Anything else that strikes you about the identification of Mr. Trent?

Dr. Jones:

Yes. In every lineup, people other than the suspect have to be selected to be in the lineup. These people allow for a witness to chose who the suspect is among several people. How the people other than the suspect who are in the lineup are chosen is important. There are two ways of thinking about this. One is to pick people who look like the suspect, and the other is to pick people who fit the description given by the witness. These may not sound very different, but the method used has been shown to affect whether the witness can correctly pick the suspect out of the lineup. For example, assume there is a robbery, a witness has given a description of the perpetrator, and the police have a suspect. If the police want to conduct a lineup, they would required to select foils to participate in the lineup with the suspect. Several problems occur when they select foils who appear similar to the suspect. One is that the investigator’s goal would be to pick people who are bear a very high resemblance to the suspect. If the lineup members are all too homogeneous, then it may be difficult for the person making the identification to select the suspect. Research has shown that the number of correct identifications decreases in this situation, so that a guilty suspect may fail to be selected because he or she appears too similar to the foils in the lineup. Another problem is that when all the lineup members are selected for their similarity to the suspect, it is possible that the suspect is the only lineup member who matches the description given by the witness. The foils in the lineup may appear similar to the suspect but they lack some essential features mentioned in the description of the perpetrator. Therefore, the suspect may be the only lineup member that resembles the description of the perpetrator given by the witness. Research has demonstrated that this increases the likelihood that the suspect will be selected, which is true even if the suspect is innocent. Therefore, selecting foils for the lineup who resemble the suspect, but not necessarily consistent with the witness’s description, increases the likelihood that a false identification will occur. Both of these problems are ameliorated when the foils comport with the witness’s description of the perpetrator and not with the appearance of the suspect. Therefore, the research indicates that the superior method for the selection of lineup foils is to recruit individuals who have characteristics consistent with the description of the perpetrator and not by their degree of similarity to the appearance of the suspect. Ideally this task should be performed by someone who is unfamiliar with the appearance of the suspect.

Defense Attorney:

And after your review of the police report, what method was used for the lineup where Mr. Trent was identified?

Dr. Jones:

The foils in the lineup were selected based on their similarity to the appearance of Mr. Trent, not based on their similarity to the description provided by the witness.

Defense Attorney:

What else about the other lineup members could influence the accuracy of the identification?

Dr. Jones:

Well, the clothing worn by the lineup members is important. Once the foils are selected, they should all be dressed similarly. One suggested procedure which should be followed is to ensure that the suspect is indistinguishable from the other lineup members based what he or she is wearing. In this lineup, Mr. Trent was the only lineup member wearing dark clothing. This would make him salient to the witness. The suspect should also never be the only person in the lineup dressed in the clothing that was in the witness’s description of the perpetrator. Here, not only was Mr. Trent the only one wearing a particular type of clothing, it was the type of clothing that the perpetrator was described as wearing. This would make it very likely that he would be salient among the other lineup members and be identified.

Defense Attorney:

Were any other procedures used by the police that might have affected the accuracy of the eyewitness during the lineup?

Dr. Jones:

Yes, research has demonstrated that the instructions given by and the behavior of the police officer conducting the lineup during the lineup can affect the eyewitness. Research has shown that the person attempting to make an identification is more likely to select someone from the lineup if they are not informed that they have the option to identify no one. The magnitude of this problem is lesser when the suspect - or the actual perpetrator - is present in the lineup. Witnesses are fairly accurate in their identifications of the actual perpetrator in a target-present lineup regardless of the instructions given by the officer conducting the lineup. However, when the actual perpetrator is absent from the lineup, it is a greater problem. When the witness is instructed to select the perpetrator, but they are not informed that the perpetrator might absent from the lineup, the witness essentially hears "pick someone." That is precisely what they do. They are very likely to select an innocent lineup member in a target-absent lineup. If they are instructed that the robber might not be in the lineup, the probability that they will select an innocent lineup member is greatly reduced. Therefore, instructing a witness to select a lineup member increases the probability that an innocent lineup member will be identified when given a target-absent lineup.

Defense Attorney:

From your review of the police reports about the lineup, what was said to the witness?

Dr. Jones:

The officer indicated to the witness that he had apprehended a suspect and instructed her to select the perpetrator of the store robbery out of the lineup.

Defense Attorney:

Is there anything else you would like to discuss about this identification?

Dr. Jones:

Well, one other thing strikes me as being important. The witness reported that she was very confident that she chose the right person in the lineup. Much research has been conducted on the relationship between a witness’s expressed confidence and their accuracy in an identification situation. This research on the confidence-accuracy relationship demonstrates two very relevant phenomena. First, the research indicates that there is only a weak relationship between the confidence of a witness and the identification accuracy of that witness. However, the second important phenomenon demonstrated by research is that people generally believe that when a witness is confident in their selection of the perpetrator from a lineup, that means they were accurate in their selection during the lineup. In fact, confident witnesses are only somewhat more accurate than less confident witnesses.

Defense Attorney:

What does the confidence of a witness tell us about how accurate their identification was?

Dr. Jones:

Based on the research, not nearly as much as people believe.

Defense Attorney:

Dr. Jones, you’ve been describing the results of all of this research to us. What are the chances that all of this research is wrong?

Dr. Jones:

Well, when we conduct research, there is always some error involved. This error can come from the manner in which the research was conducted. If the rate of error is high, then there is potential for a researcher to report the existence of a relationship between a factor and eyewitness accuracy when that relationship does not really exist. For example, I just described that there is a relationship between the presence of a weapon and witness accuracy. If the amount of error in that research is high, then in reality there might be no relationship between weapon and accuracy.

Defense Attorney:

So, how do we know that what you’ve just told us about the research isn’t based on research errors?

Dr. Jones:

Well, concern about the influence of error on these results would be increased if I was describing the results of only one research study. That one study could just by chance say that there is a relationship between two variables which does not exist in reality. However, I’ve been discussing the results of a large body of research that has been conducted by many different researchers using a variety of experimental methods. The same results are observed across all of this research. When we observe the same findings over a large number of studies, our confidence that the observed relationships are not the product of error is increased. We are more confident that the relationships we observe in the research represent relationships that actually exist.

Defense Attorney:

Given that the research you have described includes the results of a lot of research, what is your opinion on the rate of error of this research?

Dr. Jones:

I am confident that the error in this research is extremely low and that the relationships I have described to you are factors that affect eyewitnesses in the real world.

Defense Attorney:

Has this research you have just described been published anywhere?

Dr. Jones:

Yes. The work in this area has been published numerous times. Most of these publications were in journals where the articles are reviewed by other experts in the field prior to their publication. These are called peer reviewed journals. This research has also been cited in major psychological textbooks that are used in graduate and undergraduate courses that cover eyewitness reliability.

Defense Attorney:

What would other experts in your field have to say about the research you have discussed here?

Dr. Jones:

I would say that the vast majority of researchers in the field would agree with the findings of this research. Many other researchers have reported similar results. In addition, the American Psychological Association, which is an organization that most psychologists belong to, has published a book summarizing this research. The techniques I have suggested have been and are being used in many police departments already.

Defense Attorney:

Thank you for your time Doctor. I have no further questions.

The prosecuting attorney asked the jury to do exactly as the defense attorney suggested - look at the evidence. The prosecution has an eyewitness to the crime. She had the opportunity to see who robbed the store, she was able to give a description of him to the police, and most important she was able to identify the defendant in a lineup the very next day. The prosecuting attorney asked who the jury thought they should trust about the identification, the person who was actually there and witnessed the crime, or an expert who only does research and wasn’t there when it happened? Officer Brown immediately thought of the defendant when he heard her description of the robber. When he found the defendant, he was wearing clothes fitting the description of the robber, and he had lots of cash on him. He gave Officer Brown an alibi that no one could confirm. He said he was playing pool, but no one saw him. The police could never find the person allegedly playing with him because the defendant claimed he was an out-of-towner, and the defendant didn’t even know where he was going or his last name. The only time any other person saw the defendant at the bar was after the robbery took place. The prosecuting attorney asked the jury to think about whether this was a credible alibi. The prosecution had two strong witnesses who showed that the defendant was the one who robbed the store, and the defense only had a shaky alibi and some research. All this adds up to proof beyond a reasonable doubt that the defendant, John Trent, robbed the convenience store.

The defense attorney closed his case by reminding the jury that they had to find the defendant guilty beyond a reasonable doubt, and he asked the jury if they really thought the prosecution had done that. He then asked them to look at the evidence. The only evidence brought by the prosecution was a scared victim and a suspicious police officer. When Officer Brown first heard the description of the robber, he had no real reason to suspect Trent. He seemed to have his suspicions confirmed by the lineup identification. But, the defense attorney asked the jurors how sure they were that this victim correctly identified Mr. Trent? Dr. Jones testified that there are many things to worry about in this identification. The victim was probably so scared that her memory was affected. She probably focused mostly on the gun. The lineup itself was biased. Mr. Trent was the only person in the lineup wearing a dark jacket, so, he was the only one who matched her description. Officer Brown encouraged her to pick someone from the lineup. Dr. Jones testified that all of these things are potential problems with the lineup. The defense attorney encouraged the jury to take all of these things into account when deciding if this eyewitness identification was reliable or not. The defendant himself testified that he didn’t do it. The prosecution may argue that no one saw him playing pool, but this doesn’t mean it didn’t happen. The defendant testified under oath that it did. All of these factors - no reason to suspect Trent in the beginning, the bad identification, and the defendant’s own testimony - add up to reasonable doubt.