Eyewitness misidentifications have contributed to many wrongful convictions. However, despite expressing high confidence at trial, eyewitnesses often make inconclusive misidentifications on the first test conducted early in a police investigation. According to a new scientific consensus, it is important to focus on the results of the first test because, if the perpetrator is not in the lineup, the test itself leaves a memory trace of the innocent suspect in the witness’s brain. Thus, all subsequent tests of the witness’s memory for that suspect constitute tests of contaminated memory. Unfortunately, when an initial inconclusive identification comes up at trial, the Federal Rules of Evidence require that the witness be given an opportunity to explain the inconsistency. In response, witnesses often provide a believable story about why they did not confidently identify the suspect on the initial test despite doing so now (e.g., “I was nervous on the first test”). However, witnesses lack expertise in—and have no awareness of—the subconscious mechanisms that underlie memory contamination. Therefore, the explanations they provide at trial have minimal information value. The combination of a sincerely held (false) memory and a believable (but erroneous) explanation for a prior inconsistent statement is often persuasive to jurors. This is a recipe for a wrongful conviction, one that has been followed many times. The Federal Rules of Evidence were enacted almost a half-century ago, and it may be time to revisit them in light of the principles of memory that have been established since that time.
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