Malleable Memory: Addressing Eyewitness Failure in the Courtroom

Eyewitness testimony is powerful and, too often, wrong. This program, taught by Russo & Toner Managing Attorney Florina Altshiler, addresses the many factors that contribute to the failure of eyewitness memory and addresses techniques that attorneys may employ in the cross examination of adverse witnesses. The course will begin with a case study from May 2015 wherein a man with a hammer was shot by police in the middle of the day, on a crowded NYC street. There were many eyewitnesses to the incident. Almost all of the witness reports were inaccurate. Several people reported that the police officers shot an unarmed man while he was on the ground and handcuffed, but surveillance video of the incident documented that the suspect attacked one of the officers with a hammer before that officer's partner shot the man. 

The questions for attorneys include the following: Why is eyewitness memory flawed? How can attorneys use psychology to explore and explain issues common to eyewitness testimony throughout trial? This program explores the neuroscience and the psychology of memory, and techniques specific to addressing these issues at trial, starting with jury selection. In particular, the program will pay attention to witnesses that present difficult issues, including children, the elderly, and victims of sexual assault.

Learning Objectives:

1. Review the scientific concepts and principles surrounding eyewitness accounts and memory
2. Apply principles of psychology to effective jury selection
3. Refine cross examination questioning to address police technique flaws in lineups, interrogation, and investigation
4. Identify jury instructions that address principles of psychology as they apply to cases involving eyewitnesses, and employ appropriate jury instruction requests
5. Draft proposed jury instructions to address common principles of psychology, with an overview of updated state-specific pattern instructions
6. Use witness memory techniques in depositions and throughout the civil discovery process
7. Address issues with memory as they relate to criminal conviction errors