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<xTITLE>Certainty Does Not Equate to Accuracy!</xTITLE>

Certainty Does Not Equate to Accuracy!

by Phyllis Pollack
July 2021

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

In the past, I have discussed studies on the unreliability of witness identification of suspects in criminal proceedings. On May 27, 2021, the California Supreme Court acknowledged that while a witness may have a high degree of certainty with which she identifies a suspect as the culprit, a jury should be careful about equating this certainty with being accurate.

In People v Lemcke et al, Case No. S250108 (May 27, 2021), defendant Charles Henry Rudd appealed his conviction for assault and robbery on the grounds that part of California Criminal Jury Instruction No. 315 violated his federal and state law due process rights to a fair trial. (Id. at 1.) Although the instruction lists 15 factors the jury should consider in assessing eyewitness identification testimony, the particular factor at issue provides: “How certain was the witness when he or she made an identification.?” (Id.) Rudd urged that this instruction is flawed “… because empirical research has shown that a witness’s confidence in an identification is generally not a reliable indicator of accuracy.” (Id.)

Although the Court rejected Rudd’s due process claims, at the same time, it referred the matter to the California Judicial Council to determine whether the instruction should be modified “…to avoid juror confusion regarding the correlation between certainty and accuracy.” (Id. at 3.) The Court also suggested that the trial courts should avoid instructing on this certainty factor in this instruction unless the defendant specifically requests its insertion. (Id.)

The main reasons Rudd lost his battle but may have won the war was because he had an expert witness testify extensively on the reliability (and lack thereof) of eyewitness testimony (Id. at 7-9.) and his counsel extensively cross-examined both the police investigators on the processes they used in having the witness identify Rudd and the witness as well. (Id. at 23-25.) Based on such opportunities, the Court found that his due process to a fair trial had not been violated. BUT…given the “…near unanimity in the empirical research that “…under most circumstances, witness confidence or certainty is not a good indicator of identification accuracy” (citation omitted.), the Court agreed that the instruction should be re-evaluated. (Id. at 27.)

As a mediator, I deal mostly with litigated cases and thus “eyewitness” testimony of what happened. Sometimes, the plaintiff’s version is so divergent from that of the defendant’s, I wonder if the parties are talking about the same case! While these parties may not be identifying suspects to a crime, they are relying on their memories of what happened and as this latest case shows, their memory can be faulty. Despite her certainty that something happened in a particular way, a party may just not be accurate! (The opinion notes that one reason may be the “commitment effect”- once a party takes a certain position, she feels she must be consistent or be committed to that previous identification. Id. at 8.) Yet, everyone listening assumes that what she is saying is accurate.

If nothing else, this opinion reminds us that our memories are indeed fallible and although we may be absolutely certain that something did or did not happen, we can be wrong, absolutely wrong. This is why, that as a mediator, I learned long ago, to take whatever a party tells me with a grain of salt (aka skepticism)!

… Just something to think about!


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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