Eyewitness Testimony: The Eyes Can Be Deceiving

BY DIANE DIMOND

How many times have you heard someone say, “Believe me; I know it’s true. I saw it with my own eyes!” When someone passionately tells us he or she was an eyewitness to an event we are programmed to believe his or her story.

It happens in courtrooms all across the country every day. An eyewitness takes the stand, puts a hand on the Bible and swears to tell the truth about what he saw. In sometimes-vivid detail, he recounts the story, points the finger of blame at a defendant and proclaims 100 percent certainty about the identification. This compelling, first-hand testimony sways juries and has resulted in countless convictions. Some include sentences of death.

So how trustworthy is an eyewitness, anyway?

Not very, it turns out. Various studies show that eyewitness misidentification frequently happens and for a variety of reasons. Witnesses tend to want to be helpful, but they might have seen the perpetrator for just an instant or from a long distance or in bad lighting yet they make an ID anyway. Accurate identification also depends on the witness’s age, eyesight, race bias and whether he or she was under the influence of drugs or alcohol.

You might think that people caught up in an active crime scene would have a razor-sharp memory of what happened. But a paper published by the American Bar Association reports that those involved in violent high-stress crimes — especially when a weapon is used — suffer from impaired recall, because their focus is diverted to the weapon and not the face of the person holding it.

Witnesses not interviewed at the scene — those who come forward later — may have seen suspects on television, subconsciously tainting their choices. And there are attention-seekers who appear because they want to be part of the action and not because they actually witnessed anything.

Then there are the things that can go wrong with handling witnesses at the station house. The witness (or victim-witness) is often shown a photo array of suspects, but if the pictures aren’t all of similar size and color the witness’s choice could be affected. If only one photo is in color, for example, it is more likely to be chosen over all the others. The ABA paper concludes, “Witnesses select the wrong suspect from a photo lineup roughly a quarter of the time.”

During a lineup detectives might inadvertently telegraph who they think the criminal is. Or an officer might congratulate a witness for the “good job” in picking the “right person.” That pat on the back could then reinforce a witness’s erroneous identification.

Aileen P. Clare, a Columbia, South Carolina, attorney who has studied witness misidentification says, “When the suspect is left out of a lineup, witnesses pick an innocent person more than a third of the time — even when told that the suspect may not appear in the lineup.”

That’s pretty chilling odds and proof that some witnesses are highly motivated to help police find justice even if they aren’t crystal clear about what they saw.

According to the Innocence Project, the biggest factor in wrongful convictions later proven by DNA testing is faulty witness identification. Misidentification plays a role in more than 70 percent of convictions that are overturned by DNA. And this includes victims who were face-to-face with their attackers yet later identified the wrong person.

Take the case of Jennifer Thompson of North Carolina. In 1984, during a vicious sexual attack, she promised herself she would memorize everything she could about her rapist and, if she lived, repeat it in court. She positively identified Ronald Cotton as the man who had put a knife to her throat and been on top of her for 20 minutes. Cotton spent 11 years in prison before another man confessed to the crime when confronted with new DNA evidence. Thompson and Cotton wrote a book about the case and give speeches about witness frailties.

Also in 1984, Kirk Bloodsworth of Maryland was convicted of the rape and murder of a 9-year-old girl even though there was no physical evidence against him. He was sentenced to die in the gas chamber after (SET ITAL) five eyewitnesses (END ITAL) identified him as the killer. But once DNA testing evolved it proved Bloodsworth was innocent. He was released after serving nine years. So much for eyewitness accounts!

Television crime dramas often feature dramatic eyewitness court testimony that neatly wraps up a criminal case. In real life it is much more complicated. Maybe it’s time judges include instructions to juries about the fail rate of eyewitness accounts.

Rockland resident Diane Dimond is a syndicated columnist, author, regular guest on TV news programs, and correspondent for Newsweek/Daily Beast. Visit her at www.DianeDimond.net or reach her via email [email protected].