In an effort to increase the amount of justice that is seen within the United States, eyewitness testimony has been manipulated in terms of the Confrontation Clause of the Constitution on many levels. As an example, in Craig v. Maryland (110 S. Ct. 3157) a decision of 5-4 made it clear that the defendants may not necessarily have the right of confrontation when the well-being of the witness, in this case a child, outweighed the interests of the defendants rights. In his dissenting arguments, Justice Scalia suggested that eliminating the issue of competency in terms of being able to testify in court was part of a larger problem in which the tide of public opinion was overruling the Constitution. Justice Scalia has long been writing opinions about the confrontation clause.
As an example, he wrote in his opinion for Giles v. California that it was not the role of the courts to determine the values behind the sixth amendment, but to respect the fact that it seeks fairness in very specific terms (Jonakait, 2011). Therefore, eyewitness testimony and the ability of the defendants to face accusers are intrinsically linked.
The dependence upon eyewitness testimony means that the psychology of this phenomenon could affect the way in which justice is viewed. Epstein (2013) writes that the reliability of eyewitness testimony as established in Neil v. Biggers was based on the concept of an ultimate measure in which there was “not a very substantial likelihood of irreparable misidentifications”. The problem is that the factors that were set down in this court case were not based on scientific research. Epstein (2013) suggests that reliability is not necessarily the same as accuracy and correctness and that under the structures of reliability the court is depending on the belief in truth rather than actual truths. Psychology of Eyewitness Memory The psychology of eyewitness testimony has become an increasingly important perspective on which public policy is being shaped.
Reform for the procedures that are used in order to create eyewitness identification evidence has led to empirical studies that recommend procedures to law enforcement. False identification is a problem and psychological studies provide some insight. However, Clark (2012) suggests that one of the problems discovered in an empirical search of literature found that although certain changes in procedures were beginning to prevent the risk of false identification of the innocent, it was also leading to a reduction in the number of correct identifications of the guilty.
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