62 Pages Posted: 5 Mar 2008
Date Written: September 24, 2007
Wigmore's assertion that cross-examination is the greatest engine for the search for the truth comes with a caveat: it works best for the untruthful witness, or for eliciting facts known to the witness but not acknowledged on direct examination. In the typical eyewitness-based prosecution, neither condition obtains. The eyewitness is not untruthful but may be mistaken; and eyewitnesses do not know the factors [weapons focus, the deleterious effect of stress on eyewitness accuracy, the problem of "own-race bias" in cross-racial crimes] that may have caused the mistake.
This article traces cross-examination to its origins and demonstrates that its utility (as originally intended and as developed over centuries) is limited in eyewitness cases. The article concludes that other tools - better jury instructions, and the use of expert witnesses - are essential to ensure a complete search for truth in identification cases.
Keywords: cross-examination, eyewitness, mistaken identification, witness, evidence
JEL Classification: K14, K4
Suggested Citation: Suggested Citation
Epstein, Jules, The Great Engine that Couldn't: Science, Mistaken Identifications, and the Limits of Cross-Examination (September 24, 2007). Stetson Law Review, Vol. 36, No. 3, 2007; Widener Law School Legal Studies Research Paper No. 08-23. Available at SSRN: https://ssrn.com/abstract=1100090