Under most rules on evidence, the testimonial evidence is not the highest form of evidence. In fact, it is the least credible evidence. Object evidence and documentary evidence prevail over testimonial evidence. The primary reason for this is that testimonial evidence is entirely based on the witness’ recollection of what he has observed or witnessed using his five senses. Since the evidence depends on the witness who is a human being, this evidence may be subject to human error or human forgetfulness. Therefore, the credibility and reliability of the testimonial evidence is usually being questioned and under the rules on evidence, the court does not give too much evidentiary weight to testimonial evidence particularly if there are available pieces of object and documentary evidence.
The occurrences of mistaken identity are not remote and had already happened in the past and will more likely to happen in the future in some criminal cases due to inaccurate recollection of eyewitnesses. There is also a possibility that eyewitnesses who have claimed to see the crime may commit a mistake which can bring an innocent person to jail. Likewise, eyewitnesses could be influenced by the police officers who conducted the investigation and other persons or authorities who had interaction with witnesses before or during the trial.
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Laura Wexler, a professor of American studies, women’s gender and sexuality studies and director of Photographic Memory Workshop at Yale University, explains why the eyewitness testimony is the weakest form of evidence and least reliable.
1. The method of presenting the photograph before the witness may influence the witness in identifying the perpetrator of the crime. A study made by the American Judicature Society found that the presentation of photos to the witness is a critical factor in identification. She said that when a police officer presents all the photographs in front of the suspect there is a tendency to commit a mistake and identify the wrong person. Fewer mistakes are made when the photographs are presented one by one instead of presenting them all at once
The person presenting the photographs may also influence the witness in identifying the perpetrator of the crime. It is suggested that the police officer who is not involved in the case should be the one to present the photographs to the witness.
2. Witnesses of a crime see the event not as a rational and calm spectator where they are relaxed and calm. Emotions play important role to the witness. When you are a witness to the crime the tendency is to be shocked and feel nervous and hide to protect yourself. It is not your goal to take a good look at the suspect’s face and memorize his face.
3. Witnesses who are under a lot of stress at the time of the event have the tendency to make a mistake in identifying the perpetrator of the crime. Witnesses who are under stressful situations have the tendency to commit a mistake in identifying the person responsible for the crime.
4. The opportunity for the witness to see the suspect is also relevant. Was the sighting brief? Did the witness have a long look on the suspect? Was it daytime or nighttime? Was the suspect facing the witness or not? These are matters which can affect the eyewitness in identifying the person responsible for the crime.
Since eyewitness testimony is a very subjective form of evidence, it should be the primary task of the court and the jury to observe extraordinary diligence in entirely relying on testimonial evidence. As much as possible, the jury should be objective at all times and should not be carried away by their emotions and personal opinions in placing weight on eyewitness testimony in deciding a case. In this way, only reliable and credible eyewitness testimony will be accepted as evidence.
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