Eyewitness testimony, at least on film and television, can be dramatic and turn a trial completely around. In real life, however, eyewitness accounts aren't typically so exciting and sometimes don't even make it to the trial stage of the criminal justice process. Much research has shown that our memories aren't as accurate as we might believe.

The Innocence Project reports that, out of 360 cases overturned by post-conviction DNA evidence, mistaken eyewitness identifications contributed to 71 percent of those convictions. The Innocence Project is an advocacy group that works to free those wrongly convicted, working on and endorsing formal procedures to improve the accuracy of eyewitness identification. Nearly half of the states in the country have adopted these guidelines; however, as of 2020, South Carolina has not.

Although eyewitness identification is traditionally thought of as highly reliable, in reality eyewitness accounts have a high rate of misidentification (up to one in four stranger eyewitnesses are incorrect). Here are a few reasons why:

• A person who witnesses a crime is generally anxious and under stress. This stress – experienced during the incident, during interviews with authorities, and during testimony – can negatively affect their recollection of the situation.
• Even those of us with the sharpest memories aren't human video recorders. Whenever we have a small gap in our memories, even for a few seconds, our brains fill it in to make a complete picture – but this may not necessarily be the right one.
• Especially during a violent crime, witnesses tend to focus on the weapon and not the assailant or suspect. In many cases, an eyewitness can better describe the weapon used in the crime better than they can describe the person who committed it.
• Police or prosecutors may use photos or lineups in suggestive ways (consciously or unconsciously) to steer eyewitnesses toward particular results. This is, obviously, unethical.

Can you challenge eyewitness testimony?

Although, for all the reasons above and more, witness accounts aren't always accurate, they're still considered valid and powerful evidence in a criminal case. However, experienced criminal defense attorneys can challenge eyewitness testimony in specific situations, like:

• Exposing falsehoods or bias against you – For example, if there is existing hostility between you and the witness, there may be an issue of intentional false identification.
• Questioning the memory of the witness – A significant amount of time may pass between the incident and your identification as a suspect. In cases like these, the witness' memory may be called into question, as a variety of factors can affect their ability to reliably identify the correct suspect.
• Challenging the photos or lineup – If law enforcement doesn't follow proper procedure when conducting lineups or displaying photos to witnesses, testimony may be considered invalid. Authorities may not lead or suggest witnesses toward identifying any suspect.

It's true that eyewitness reports and testimony can be a powerful tool for the prosecution. However, smart criminal defense attorneys know that witness accounts are never 100% reliable. At Holland Law, we aggressively fight the allegations and charges against you with strategic defense. To schedule a consultation in either our Fort Mill office on Gold Hill Road, or in our Rock Hill office on Oakland Avenue, please call 803-590-6690 or contact us. We serve clients in the York, Lancaster, and Chester County communities.