Monday, August 29, 2011

Eyewitness Testimony is Patently Unreliable

Although I have written and argued this matter many times over the years, this Reason Magazine article on the subject so effectively and clearly encapsulates the issue that I need not reiterate my own points, but I shall simply bring you this cogent piece. This is a further example of why jurors need to look skeptically at things their government is presenting to them in trials, because things are rarely what they seem to be - or rarely what self-serving government wants people to think things are.

 

Injustice, In Plain Sight

The trouble with eyewitness testimony


In 1989, a Waukegan, Ill., woman was raped after three men invaded her apartment. She told police the rapist had a tattoo, wore an earring in a pierced ear, and spoke English. Two days later, the cops took her to an office and said, "Watch the one sitting on the chair."

Alejandro Dominguez, age 16, had no tattoos or pierced ears, and he reportedly could speak only Spanish. The woman, however, said he was the attacker, and largely on the strength of her testimony, he was convicted. Not until 2002 did DNA analysis prove Dominguez was innocent.

It's a dismally familiar tale: a victim making an eyewitness identification that later turns out to be horribly mistaken. This type of mistake is universally known as the most common cause of false convictions. Yet law enforcement authorities, courts, and juries continue to treat it as pure gold.

But change is on the way in New Jersey, where last week, the state Supreme Court ran out of patience with a method that puts so many innocents behind bars. It mandated new rules that will help to prevent errors while giving defendants more avenues to expose them.

The justices said that "courts must carefully consider identification evidence before it is admitted to weed out unreliable identifications" and "juries must receive thorough instructions tailored to the facts of the case to be able to evaluate the identification evidence they hear."

Like other evidence, it must be subject to careful scrutiny and challenge. The burden of disproof will still fall on the accused, but it will be easier to meet. Chances are good that, as a result, some blameless individuals will be spared.

It's the least the courts can do, and it's something the U.S. Supreme Court will get to consider this fall, hearing the first major case on the issue since 1977. Since then, the fallibility of eyewitness evidence has been confirmed by a mounting pile of data.

In one experiment, a "customer" went into a convenience store to buy a soft drink with a traveler's check, which required him to provide an ID and spend a few minutes conversing with the clerk. Later, the clerks were asked to find the person in a group of photos. Forty-one percent made a wrong pick.

Errors don't happen because crime witnesses choose to lie. Most of them sincerely believe what they say. But their memories may be addled by shock, colored by a desire to punish the villain, or led astray by police suggestions.

The palpable certitude of someone who was present during a crime makes for powerful evidence to a jury. But as the New Jersey court opinion noted, "accuracy and confidence may not be related to one another at all."

Jennifer Thompson can vouch for that. In 1984, as she was being raped at knifepoint, she forced herself to study and note "every single detail on the rapist's face" so she would be able to identify him.

At the police station a few days later, Thompson found her attacker in a gallery of photos. She picked him again out of a physical lineup. She took the stand in court to point him out, and he was convicted.
But 11 years later, DNA evidence pointed to someone else. "The man I had identified so emphatically on so many occasions was absolutely innocent," she wrote later.

Thompson had many minutes to get a closeup view. Often, arrests are made on the basis of brief glimpses, sometimes in dim light or at a far remove. But even in these instances, eyewitness testimony can obliterate other evidence, as well as common sense.

In 1990, a jury convicted David Dowaliby of suburban Chicago of killing his 7-year-old daughter, largely on the basis of a witness who, on the night of the murder, saw someone in a parking lot where the body was later found.

He was 75 yards away, the lighting "wasn't that great," and the witness wasn't sure if the person was male or female, or black or white. All he knew was that the "nose structure" matched Dowaliby's. A jury voted to convict. It took an appeals court to throw out the case.

But many times, mistakes go undetected and uncorrected. We all know it's dangerous to believe everything we hear. The criminal justice system ought to acknowledge that the same holds for what we see.

Saturday, August 27, 2011

Liar, Liar, Pants on Fire! When the Police Lie, the System Die

There are many, many examples, in the literature and in published cases and in daily court activity, where the police lie, and a sound criminal justice system would then discredit everything else the officer said [and maybe prosecute that officer for perjury], and a responsible prosecutor would not even try to get the court to rely on it. That's if we had a "sound criminal justice system." We do not.

In a case this past week, the officer testified: "Based on what the victm told me, I approached the defendant, commanded her to raise her arms and to turn around, and I searched her and found [       ]." On cross-examination I inquired "Now, Deputy, Ms [         ] was not free to leave when you approached her and searched her, was she?" "Oh, yes." I exploded: "Are you telling me that when you commanded Ms [       ] to raise her hands, turn around, and you started searching her, she could have told you to 'pound sand' and walked away?" "Yes!" "You know darn well, if a cop commands a person to raise her arms and turn around, and that person were to ignore the order and walk away, especially around here, that person would be shot!" DA: "Objection!"

The DA then went on to argue the substance of the officer's testimony on that and other things, and his "credibility" was the pivot point on a suppression motion and on the substance of the matter. And the judge, a dutiful recent graduate from a DA's office, had no problem with the perfidy and perjury.

When the government credits and relies on and argues lies, the system has died.  For shame, for shame!

Ask not why the Youth of today has diminishing respect for law and for the system; simply visit the criminal courts in any county of this State, and you will be faced with your answer.