Late last year, psychologist Gary Wells was watching an oral argument before the United States Supreme Court. He wasn’t enjoying it.
Wells, who has the countenance of a boxer and the mind of a Talmudic scholar, had come with a group of scientists affiliated with the American Psychological Association, along with lawyers from the Innocence Project, for the appeal of a convicted New Hampshire burglar. The case involved a middle-of-the-night car break-in. Police had apprehended Barion Perry in a parking lot carrying a couple of car radio speakers. One officer stayed with him while another went upstairs to question a woman who had reported a “tall black man” peering into cars. Although she had identified Perry only from her distant vantage on a third-floor balcony, her testimony was used successfully to convict him.
To Wells and his fellow scientists and lawyers, the case illustrated the weakness of many eyewitness convictions. The woman saw the suspect only briefly and in the custody of police; naturally she would assume he was a criminal. The psychologists agreed with Perry’s attorney that the witness’s memory was so unreliable that the judge should have held a pretrial hearing to determine whether it should be admissible at all. Now they wanted to go much further: They hoped that the Supreme Court justices would use the case to reexamine the whole legal question of eyewitness memory—a question the court hadn’t considered since 1977.
Wells, who is a distinguished professor of psychology at Iowa State University, is also an internationally ranked pool player and has developed the habit of looking at lots of situations from every possible angle. Before the hearing he did some research on patterns of Supreme Court discussions. He had learned that the sooner the justices interrupted an attorney, the more likely they were to rule against him. When Perry’s lawyer had spoken for barely 30 seconds before the justices began peppering him with questions, Wells knew it wasn’t going well.
Then the justices’ questions kept flying: What makes eyewitness testimony any less reliable than other forms of evidence? If a witness makes a mistake, can’t the lawyers reveal it during cross-examination? The courts already have rules for excluding witnesses who were coached or coerced by the police. Why is eyewitness testimony so unreliable that even without police misconduct it requires special jury instructions or a pretrial hearing? In January the Supreme Court ruled against Perry, 8 to 1.
