The Limits of Eyewitness Testimony

by Gina Simmons, Ph.D.

A few years ago I attended a concert with my husband and our two teen-aged boys. After the concert, as we filed passed the aisles toward the exit, a drunk heavy-set man shoved my smaller son out of his way so he could pass in front of us. The shove was violent enough that my son was knocked into me.

Most mothers find, at some point in their lives, that a ferocious beast resides inside of you. This bear of a beast only appears when someone threatens or hurts your child. In my mind, the man was fat, out of shape, just a little taller than me. I could take him down! "Keep your hands off my son!" I growled. My husband and larger son made a path for us to get away from the drunk man. After we arrived safely at our car, the four of us talked about the incident. My two boys and husband described the man as approximately 6-feet-2 inches, muscular, with a pot belly. I saw him as about 5-feet-7 and, in that moment of confrontation, I truly believed I could Wonder-Woman him to the ground. Fueled by adrenalin and an instinct to protect my child, I would have made a lousy witness in this case.

According to the Innocence Project, eyewitness testimony is responsible for 75 percent of wrongful convictions overturned by DNA evidence. Many eyewitnesses to more serious criminal offenses find themselves in a similar state of nervous system arousal. Adrenalin pumping, heart racing, pupils dilating, your whole system mobilizes to defend or escape. Some people report experiencing the traumatic event as if it were happening in slow motion. You replay it over and over again, in an effort to make sense of it all. Sometimes, in that replay, we fill in the blank spots of the story with false information in order to make the story connect.

For example, imagine you've stopped at a convenience store. In front of you at the check-out line is a person wearing a dark sweatshirt with a hood. You're looking around the store, wondering if you need to get anything else, when you hear a loud boom. You look back and the person in the hoody is reaching over the counter and pulling money out of a cash register. You look around for a place to hide. Other customers are screaming and shouting different things. "He's getting away! The clerk's been shot." Out of the corner of your eye you see a dark-blue car speed out of the parking lot. Some time later, the police arrive and begin to interview the witnesses. You tell the police that a man pulled a gun, shot the clerk, took money out of the register, and sped away in a dark-blue car.

The clerk gets up from behind the counter and starts to cry. She thought she had been shot. No blood, no bullet, no injury. A witness from outside the store said he saw a large woman in a hooded sweatshirt run out of the store and down a back alley. That witness also saw a black truck speed away in the opposite direction. What did you actually see? The back of a person, could be male or female, in a hooded sweatshirt, took money out of the register, and a dark-colored vehicle sped away. The gender, age, and race of the thief, the source of the loud boom, and the method of get-away are still unknown.

Your eyewitness statement was contaminated by the normal human need to connect the dots of a story, to make sense of a situation. You heard another witness say, "He's getting away," so you assumed the perpetrator was a man. The loud boom, and the fact that you could no longer see the clerk, made you assume she had been shot. This story emphasizes the need for law enforcement officers to interview witnesses as soon as possible after an event, and interview them individually. As tiresome as that process feels to the witnesses, it does help prevent the confabulation of memories as people influence one another to fill in the missing pieces of the story.

When we see things out of our peripheral vision, color vision is distorted. The cells in our eyes that perceive color, called cones, fade out in our peripheral vision. If you don't see something head on, you will often mistake the color. As we age, our night vision gets poorer as we lose the more sensitive rod cells. These cells are responsible for motion detection and night vision. The rods are highly sensitive to motion, so you can block something flying toward your head. In the eyewitness example, if you see something out of your peripheral vision you likely will get the color wrong, unless you also see it straight on, in good light, with normal color vision.

The recent execution in Georgia of Troy Davis, convicted of murder based solely on eyewitness testimony, should give us all cause for concern. Seven of the 10 eyewitnesses to the crime either recanted or significantly altered their testimony. Despite the significant holes in the case, Troy Davis was executed on September 21, 2011. The family of murder victim Officer Mark Mac Phail reportedly saw "nothing to rejoice about" in the execution of Troy Davis. Hopefully, they will find some peace and healing.

Officer Mac Phail, jumped to the aid of a homeless man who was being attacked. He was murdered trying to save the life of a stranger. He is survived by a wife and two young children who will never get to know their father. I hope justice, not merely vengeance, prevailed in this case.

Photos courtesy of: Looking glass, CGoulao, and Clearly Ambiguous

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The Death Penalty, Back in the News

by Holly Hughes

It’s been a busy week for the death penalty in American jurisprudence.  We seldom hear so much about it from simultaneous corners.  From Texas to Georgia to Connecticut, we have seen it take center stage this week. What I find fascinating are the varied reactions to each of these individuals cases.

Troy Davis was convicted nearly two decades ago for the murder of off-duty police officer Mark MacPhail.  In the ensuing twenty two years since that murder, Davis’ case has been heard by twenty eight different courts, including the Supreme Court of the United States.  His legal team sought clemency from the Georgia State Board of Pardons and Parole Board twice.  Thanks to the advent of social media Troy’s case generated enough attention to collect over 600,000 signatures calling for a stay.  There were protests staged at the Georgia State Capitol Building and the Georgia Diagnostic Classification Prison where Davis’ execution was carried out.  Former Presidents and Popes weighed in.  

A lot of the news coverage stated emphatically that there was no physical evidence.  Other media outlets briefly acknowledged that there was some, ie: the shell casings, which matched  casings from another shooting that Davis had been convicted of.  Much was made about the seven recantations, but little was mentioned about the fact that it took seventeen years for those recantations to occur.

I am not weighing in on the guilt or innocence of Troy Davis.  I have not read the transcripts, nor watched any interviews of witnesses.  I am simply commenting on the fact that most of the reporting on this particular case was inaccurate or incomplete at best.  However, it garnered a lot of attention and gave opponents of the death penalty a great deal of ammunition in their argument against the death penalty.

At the same time, in Texas, another man was scheduled to be, and ultimately was, executed.  We didn’t see this one widely reported.  In fact, it passed relatively unnoticed.  On the very same day that Georgia executed Troy Davis, the State of Texas put to death Lawrence Russell Brewer.  Brewer was convicted of the horrific murder of James Byrd, Jr. back in 1998.  Brewer, along with his two co-defendants in the case, committed unspeakable violence against Mr. Byrd simply because he was African-American.  It was a hate crime pure and simple.  But there was nothing pure or simple about the inhuman acts perpetrated against Mr. Byrd.  He was beaten unconsciousness, urinated on, tied by the ankles with a heavy chain and drug behind a truck until his arm and head were severed from his body.  

While Texas and Georgia were carrying out death sentences, Connecticut was seeking to have one handed down.  This brings us to the case of Joshua Komisarjevsky.  This is the monster who broke into the Petit family home, beat Dr. Petit unconscious and tied him up.  Once that was done, he then, along with his co-defendant, Stephen Hayes, sexually assaulted the Doctor’s wife and two daughters, the youngest of which was eleven years old.  When that was done, Komisarjevsky took Mrs. Petit to the bank and forced her to withdraw fifteen thousand dollars.  As if all of these abuses were not enough, when they returned to the house, these two monsters tied all the women to their beds and set the house on fire, burning them alive.

Prior to this case, the State of Connecticut was debating abolishing the death penalty.  These crimes put a quick stop to that.  In the face of such evil, the people decided  they needed the death penalty, they wanted the death penalty and they were going to seek the death penalty.  They got it.  Last year, co-defendant Stephen Hayes was sentenced to death.

So, the question that arises is: why did we not see 600,000 signatures calling for a stay for Lawrence Russell Brewer?  Why are there no protests outside the Connecticut courthouse where prosecutors are currently seeking the death penalty against Komisarjevsky? Now, the easy answer is “there was little to no evidence against Troy Davis.”  Well, who gets to make that decision?  A jury of his peers, yes, his peers.  Seven of the original twelve jurors were African-American.  

Twenty eight different courts reviewed this case and felt that the evidence was strong enough, even in light of the late-in-the-day recantations. From a purely pragmatic standpoint, allowing social media to dictate who gets executed and who doesn’t turns the justice system into nothing more than a version of Survivor (no pun intended).  No one should be voted off the island but people who weren’t even involved in the game.

Again, I cannot say whether or not Troy Davis was guilty.  I am simply asking the question, “what can we learn” from this past weeks’ multiple death cases.  If you believe the death penalty is wrong, then it’s wrong for everyone, including the monsters who commit unspeakable horrors against their fellow human beings, sometimes for no other reason than prejudice.

If the problem is with the application, then how do we fix it?  Lobby legislatures?  Call for one uniform application of the death penalty, which would be forced on all states by the federal government?  I don’t pretend to have the answers.  I will leave that to minds greater than my own.  But I find it an interesting dichotomy that the folks who oppose the unequal application of the death penalty are themselves unequal in their passion of whom they choose to rally for.

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