Now you see it … The Eyewitness Controversy

by Robin Sax

It happens in a flash, usually without warning, and certainly for victims and witnesses, without much in the way of preparation. One minute they could be minding their own business; the next they can be in the throes of a crime. Murder, rape, and robbery–you name it–crimes literally happen in the blink of an eye.

Just as quickly, a moment can change the trajectory of a defendant’s life. That moment is the moment they are identified as the one who did it. While courts and prosecutors have long given lip service of the magnitude of this issue, eyewitness misidentification has finally become a real issue that is finally being looked that’s to a historic ruling by New Jersey’s Supreme Court.

As a deputy district attorney in Los Angeles, I handled all kinds of cases with all kinds of evidence. Much of that evidence came from the witnesses and victims to the crime. Witnesses who often swore they could never forget the face of the bad guy. But could they? Really?  

Let's have some perspective here. The most heinous crimes out there–child abuse, sexual assault, rape, domestic violence, elder abuse, and stalking–are crimes that are perpetrated by someone whom the victim knows, and often knew well. These are the cases you hear about in the news. Less discussed are the “stranger” cases, where the victim and perpetrator have no connection, didn’t know each other, and were only brought together through some random (or not so random) senseless act of violence. These are the “ID” cases.

Witnesses are supposed to be considered just like any other type of evidence in a case --blood, sperm, fingerprints-- but they’re not. We all know that the truth is, juries love witnesses. Nothing persuades a jury more than the, (cue the theme music) “Law and Order” moment when a witness takes the stand, looks over, and points to the suspect and says, “There he is. He’s the one who did it.”

In every case, the prosecutor is trying to figure out whether they can make a case. And while we try not to put the pressure on victims to perform the reality, there is a great deal of importance in determining whether the witness can testify credibly, whether their story makes sense, and, more importantly, points to who did it.

The defense attorney, on the other hand, is trying to hold the prosecutor to the burden of proof the Constitution guarantees–that is, the prosecution must prove its case beyond a reasonable doubt. So, as a defense attorney, those words of the witnesses are not about simply making a case; they are about making darn sure you have the right dude.

In my defense work, I pride myself on acknowledging that a crime may, or assuredly did occur. However, I am going to make sure that the prosecutor can prove that the perp is my dude, and not some other dude or SODDI, the known acronym in the legal world for “some other dude did it” defense.

We all know about reliability issues with witnesses. Some have an axe to grind, some have a prior relationship, others have a criminal record or unsavory past, some are drug users, hookers–you name it. But credibility issues are one thing; witness reliability when they are otherwise credible adds a new wrinkle to the equation.

And this is a wrinkle that will really make a dent in criminal prosecutions and finally confirm what defense attorneys have been groaning about for years. And that is that eyewitness identification is inherently flawed. Make no mistake, the New Jersey high court’s ruling could forever change the way police use witnesses to identify bad guys. The US Supreme Court is going to weigh in on the entire issue for the first time since 1971.

Here’s what I’ve witnessed myself over the years: When witnesses say they are 100-percent sure, I’m 1000-percent sure they are not. Why? Our minds and our memories are far from perfect. Sometimes we can’t remember what we had for lunch yesterday. Think about what can happen when a crime is involved. Think about the fear, hate and all kinds of trauma involved here. The chance for unaffected memory is next to zero.

Now, let’s add on the impact of law enforcement. Let’s say you’re a rape victim. The cop who comes in to help you catch the rapist is going to have enormous influence on you. So, if he or she shows you a photo of the bad guy, chances are you will end up agreeing with the choice. I’m not suggesting this is a deliberate act, but it happens all the time. We are only now beginning to understand how a witness experiences and remembers events, faces and time.

The New Jersey Supreme Court Justice, which ruled in the case, said it best: “A vast body of scientific research about human memory has emerged. That body of work casts doubt on some commonly held views relating to memory.” 

Barry Scheck, founder of the Innocence Project and who is famous for using DNA to overturn wrongful convictions, released the following figures from the Project’s files. Of the first 250 wrongful convictions cases overturned by DNA evidence, 190, or 75 percent, involved eyewitnesses who turned out to be flat-out wrong.

Now the courts are finally acknowledging there are issues of eyewitness identification. The question is what is the solution? Prosecutors would like to say defense attorneys could simply argue their cases (but how?), some defense attorneys will argue for exclusion, suppression or limitation of the evidence altogether. Courts allow for experts to appear to testify about the inherent flaws, or even permit jury instructions that address the issues inherent to misidentification by guiding jurors through the process. All of these may be great solutions but they are fixes to a bad identification.

When a person is facing incarceration, loss of liberty and other collateral damages, after-the-fact fixes are just not good enough. We live in a country that forces prosecutors to meet their burden of proof.  Isn’t it time law enforcement be held to the standards that correspond to that heavy burden?

So what am I suggesting? I am suggesting we do something about identification at the critical moment when the initial interview and identification is happening. That is creating a standardized “best practice” system to account for the inherent issues of misidentification, lack of reliability and suggestibility. The simplest and easiest of these can be done right now with only the cost of a tape recorder. If police are required to tape the entire interview with each witness, victim, and suspect then at least everyone can hear verbatim what went down, how the interview was conducted, and how an ID occurred. It is a transparent option that at least will allow attorneys to argue and then jurors to decide for themselves if the identification was good or bunk. There are tons of other ways too, but in a budget-conscious society, one resistant to change, let's start simple with a $15 tape recorder.

If we clean up that part of the investigative chain, we’ll all be able to live with the results as the case makes its way through the system. Memories are flawed. Law enforcement can be too. Let’s remove as much of the human-error part as possible. It’s going to be a better result for justice, which is better for everyone.