Wichita Guidelines advising jurors to consider the certainty of eyewitnesses when gauging credibility is being reconsidered by the Kansas Supreme Court amid hundreds of wrongful convictions nationwide in which DNA evidence later exonerated suspects.
The review comes in the case of a Wichita man, Michael T. Mitchell, who was convicted based on the eyewitness testimony of the victim, The Wichita Eagle reported.
Witnesses can be wrong even if they are certain when making identifications, but studies show jurors tend to believe confident witnesses. That has led to hundreds of wrongful convictions later reversed.
"About a quarter of those were convicted on eyewitness testimony, and little else," said Lawrence Wrightsman, a professor emeritus of psychology at the University of Kansas.
In Kansas, judges may instruct jurors they can gauge credibility on several factors, including "the degree of certainty demonstrated by the witness at the time of any identification."
Studies show such certainty and confidence tends to influence jurors.
"A victim or a witness takes the stand, and he or she are very sincere and often times very explicit and very confident, and all those are qualities people assume go with accuracy. But they don't," Wrightsman said.
"You can find confident people who are not accurate. And you can find people who are hesitant, who are just careful people, and they are very accurate."
Mitchell was convicted of aggravated robbery in a 2007 trial over a home invasion that focused on a witness who was "100 percent" confident on his identification of him as the robber in a photo lineup. Mitchell was sentenced to nearly seven years in prison.
The jury was given the standard instruction on eyewitness testimony over defense objections.
"If that factor had been rejected as a poor indicator of reliability, it should be removed from the instructions guiding juries," appellate public defender Ryan Eddinger argued in filings to the Supreme Court.
Mitchell has asked for a new trial.
Prosecutors have argued the verdict would have been the same regardless of the instruction. Court records show the victim knew his alleged attacker and had even let him stay in his apartment.
"The cautionary eyewitness identification was not necessary in this case," wrote prosecutor Julie Koon in her legal arguments.
Three years ago, the New York Supreme Court ruled judges must allow experts to testify on eyewitness reliability when cases hinge on such testimony.
Kansas judges rarely allow such experts, said Michael Kaye, law professor at Washburn University.
"Without experts, all you have is the jury instructions to guide them," Kaye said.
"The public needs to know that eyewitnesses are not always right," he said. "That the court is willing to consider science and other factors shows progressive thinking."