Eyewitness Identification and the Local Psychologist

The quartet of articles on eyewitness identification by McCloskey and Egeth, and Loftus (May 1983) represents an excellent example of the ability of the American Psychologist to provide a forum for the discussion of topical issues in the discipline. The broader and perhaps central issue addressed, however, concerned the relative reticence that psychologists should display when asked to serve as an expert witness. This issue is of concern to both experimental psychologists and practicing clinicians. As a "local psychologist," I occasionally experience the situation that Loftus describes in which an attorney calls asking me to testify on some psychological aspect of a civil or criminal case. F. Lee Bailey, I am sure, would not hesitate to call upon McCloskey, Egeth, or Loftus when he needs a psychological expert. Local attorneys, however, especially in rural areas, tend to call on their local mental health center psychologist, local private practicing psychologist, or possibly a psychologist from the state university. The reasons they do so usually involve cost and the lack of knowledge as to whom the nationally acclaimed expert psychologists are. Local attorneys also allege that rural jurors often see the testimony of a local "good doctor" as more credible to the jury than that of an outsider who is not a member of the community. Be that as it may, most of the local psychologists I know agree that their first task when receiving such calls is to determine what specific questions the referring attorney wants answered. Many attorneys are general legal practitioners and have little experience in using expert psychological testimony. The psychologist must, therefore, first identify the information needed. Next, the psychologist has to determine if psychology, the science and/or the practice, can provide the information needed. If so, the psychologist then has to make a realistic appraisal of his or her own professional ability to provide the information. Somewhere in this process, the psychologist also has to determine if the benefits (fees paid, personal satisfaction, moral obligations to society and the profession, etc.) outweigh the drawbacks (time commitments, hostile cross-examination, possible embarrassment to the individual or the profession, etc.) to the extent that he or she is willing to become involved. McCloskey and Egeth focus on the ability of psychology the science to provide needed information regarding perception and memory in eyewitnesses. They suggest that such ability is certainly questionable if based on current empirical findings. Loftus, on the other hand, thinks more of the empirical evidence but, notwithstanding, sees the moral obligation to the innocent, mistakenly accused defendant as outweighing any lack of empirical certitude. And so, we have a classic academic standoff in which both opinions cannot, but either might be, correct. Where does this leave the local psychologist, who, in reality, will continue to receive the vast majority of attorneys' referrals? Presumably, each of us will try to become familiar with the research in the area of eyewitness identification. Then we will each have to decide if the data are convincing enough for us to take a stand on the stand. One of the better tales told around our courthouse concerns a case tried by one of the more pompous but less experienced members of the local bar. He was trying to impeach a prosecution witness who had testified to having seen the defendant commit the crime. After establishing that the incident occurred late at night, at some distance, in an area where there were no street lights, the defense counsel demanded, "Then tell the jury, just how far can you see in the dark?" The witness, a simple country fellow, paused for a moment and then replied, "Well, I can see the moon. How far is that?" As you might have guessed, the jury found the defendant guilty.