Eyewitness ID: A Primary Cause of Wrongful Convictions

By TChris, Section Innocence Cases
Posted on Sun Oct 12, 2008 at 01:13:44 PM EST
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A Dallas Morning News investigation has produced a series of articles that every judge, lawyer, and citizen who might ever sit on a jury should read. The paper examined 19 wrongful convictions in Dallas County.

In every instance but one, a Dallas Morning News investigation found, police and prosecutors built their case on eyewitness accounts, even though they knew such testimony can be fatally flawed.

Eyewitness identification procedures often cause victims to believe with certainty that their mistaken identifications are correct.

In such cases, witnesses can give false testimony with complete confidence. And nothing convicts like a confident eyewitness.

Part I explains why the common practice of showing an array of suspect photographs to crime victims so often leads to misidentifications and wrongful convictions. [more ...]

Part II examines the even more suggestive use of "showups" -- sometimes called "drive-by identification" -- where police take a crime victim to a suspect they've nabbed and ask the victim whether they caught the right person. No matter how poor the victim's ability to identify an assailant might be, nothing reinforces a victim's willingness to identify someone -- anyone -- as a police officer's assurance that the criminal has been captured.

Showups continue in Dallas County and elsewhere because police value them, judges seldom suppress them and juries are swayed by the results.

In light of all the research that teaches how flawed identification procedures lead to wrongful convictions, Part III asks why the procedures are still used in Dallas County.

The newspaper found that law enforcement still relies heavily on eyewitness testimony, even if corroborating evidence is weak and despite decades of research showing its shortcomings.

The answer: police and prosecutors view them as a useful "tool" of law enforcement precisely because they lead to convictions, even if the convictions are sometimes erroneous. Police and prosecutors too often value convictions more than they value the truth.

Most wrongful convictions that are based on eyewitness identifications will never be corrected, because no DNA is available to provide the certain proof that courts seem to want before admitting that a mistake was made.

"We've shown how unreliable eyewitness testimony is in sexual assault cases," said Rob Warden, executive director of the Center on Wrongful Convictions at Northwestern University law school. "But now the system itself is pretending that all of these armed robbery cases are just hunky dory when we know, if anything, it's no doubt less reliable in an armed robbery case than in a sexual assault case."

That's why it's important for everyone to understand (and for juries in every eyewitness ID case to hear expert testimony about) the fallibility of eyewitness identifications.

If you don't have time to read the three part series, the AP has a nice summary.

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Eyewitness ID: A Primary Cause of Wrongful Convictions | 9 comments (9 topical)

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OMG. Please bar Teresa from reading (none / 0) (#1)
by oculus on Sun Oct 12, 2008 at 03:11:16 PM EST

this post, as she starts jury duty tomorrow morning.

Why? (none / 0) (#3)
by txpublicdefender on Sun Oct 12, 2008 at 04:05:42 PM EST

Someone about to start jury duty is precisely the person who should read this post.


Because, assuming she is (none / 0) (#4)
by oculus on Sun Oct 12, 2008 at 04:17:38 PM EST

sworn as a juror, her job is to be, along with her fellow jurors, the tryer of factm and, as a juror, she must promise to apply the law as the judge instructs the jury.


I still don't get it (none / 0) (#5)
by txpublicdefender on Sun Oct 12, 2008 at 05:44:52 PM EST

You are not required to throw out all your previous knowledge and experiences to serve as a juror. Promising to follow the law doesn't mean that she cannot apply the knowledge she has that eyewitness identifications are often unreliable and can be manipulated by suggestive identification procedures.

Right now, most jurors are operating under the FALSE belief that eyewitness identifications are trustworthy. Having factual knowledge that they are not so trustworthy is a GOOD thing.

It is no violation of the jurors' oath to apply the knowledge in this post as a juror.


Since I, until recently, had to depend (none / 0) (#6)
by oculus on Sun Oct 12, 2008 at 05:53:05 PM EST

on jurors to abide by their oaths, it troubles me to think a juror might sit in the box and listen to testimony w/unacknowledged distrust of all eyewitness identification. That's the defense counsel's job to present to the jury.


could not disagree more (none / 0) (#7)
by txpublicdefender on Sun Oct 12, 2008 at 06:03:41 PM EST

First of all, if a case relies on eyewitness evidence of any kind, then the only way a juror's mistrust of eyewitness evidence would be "unacknowledged" would be if the attorneys fail to voir dire the jurors on the issue or the potential juror lies in the voir dire. It is the attorneys' jobs to find out how jurors feel about certain types of evidence.

Second, jurors are allowed to apply their common sense that they have acquired through the experiences of their lives. If one's experiences include having read over the past several years about innocent people being convicted based on faulty eyewitness identification, then there is nothing wrong in a juror applying that common sense.

And I find it fascinating that you say that it is the defense attorney's job to provide the information, considering that in many jurisdictions to this day, expert testimony on eyewitness identification is more often than not (if not categorically) excluded by trial courts as not providing information that would be helpful to the jury, that is not adding something that is not within jurors' common experience.

I will say it again. Not only should potential jurors not be forclosed from reading this type of information, I want every potential juror to have been exposed to this information.


If I were a criminal defense attorney, (none / 0) (#8)
by oculus on Sun Oct 12, 2008 at 06:06:43 PM EST

I would wholeheartedly support your position.


: But . . . (none / 0) (#9)
by txpublicdefender on Sun Oct 12, 2008 at 06:36:17 PM EST

But since you are not a criminal defense attorney, you think it is preferable for jurors to have non-factual belief in the reliability of eyewitness information? Because without knowing about the things like these that are presented in this series of articles, that is what an average juror has.

My experience with "showups" (none / 0) (#2)
by wasabi on Sun Oct 12, 2008 at 03:45:07 PM EST

I was in another Texas city and I had two women approach my car with one asking for a ride. My window was half way down and when I said no, the woman grabbed my purse off the seat and ran off. I chased after them while calling 911. The woman who was with the one who snatched my purse eventually stopped running and waited with me for the police to arrive. She said she didn't really know the woman, but that she lived in her complex and they had just decided to catch a bus to go to WalMart together. She was a scared 20 year old who didn't want to be mixed up in anything criminal. Because the thief had just finished stealing another woman's cell phone and purse by knifepoint only 20 minutes earlier, there were 6 police cars in the area searching for her. They saw her get on a bus and eventually had her removed and brought to a location where I was waiting with a detective. He explained that he was going to walk the suspect around and then he would return to the car I was in and I was to answer yes or no if that was the correct person. It was from a distance of greater than 60 feet and I could not positively identify the person. I told him I was "pretty sure", but he said I had to be absolutely sure and not pretty sure. I explained to him that I couldn't really see that far all that well, so he repeated the process of walking her arouund, but within 20 feet of me. I was positive it was the right person then. He came back to the car and I told him "yes, positivly". He thanked me and then told me that the police have found my driver's liscense and credit cards on her. I'm not sure at that point that the police really needed my visual ID, because I'd imagine they also got a good ID from the other woman whose purse was stolen and from the 20 year old who seemed to be in the wrong place at the wrong time.

I can definately see how showups could be problematic though.