Another Exoneration Leads to another Black Mark For Eyewitness Identification

eyewitness-idIt seems that every week or so another wrongful conviction is overturned in the courts somewhere in this country.  The most recent was David Wiggins, who was convicted in 1989 for a sexual assault of a 14-year-old in Fort Worth, Texas.

Mr. Wiggins was convicted and sentenced to life in prison, despite the fact that neither of the fingerprints at the scene matched his.  The girl’s face was covered during much of this attack as the rapist put a towel over her face.  However, she testified that she removed that towel during the attack and subsequently would pick Mr. Wiggins out of a photo lineup and then a live line up, saying that he looked familiar.

He has always maintained his innocence.

The Dallas Star-Telegram wrote: “Even though motions for DNA testing were filed before and after his trial, they were denied because the judge and prosecutors didn’t believe the technology was good enough at the time to get results using the limited amount of biological material available.”

In 2007, the DA’s office agreed to allow DNA testing, however the laboratory “issued three reports with mixed results.”  The Innocence Project would not give up.

In August 2010, the Innocence Project would seek more sophisticated testing.  Finally a California lab was able to exclude Mr. Wiggins as being the rapist.

“I hold no bitterness,” Mr. Wiggins would say in court as reported by the Associated Press following the judge’s ruling. “I’m thankful to Jesus Christ. He said he could move mountains, and surely this was a mountain. … And to the victim: I’m not mad at you. I don’t hold you responsible.”

Barry Scheck of the Innocence Project said in a statement, “While David’s case is an example of how cooperative officials can make an exoneration go smoothly, it is also another tragic example of the fallibility of eyewitness identifications, which have contributed to nearly 75% of the wrongful convictions overturned by DNA. It is also why, in Texas and across the nation, we are pushing reforms that will help protect the innocent and accurately identify the true perpetrators of crime.”

Mr. Wiggins may not be bitter and is understandably relieved, but the rest of us should be concerned and wary.  The real question is, how many other David Wiggins are there out there and how many do not have access to DNA testing because of either improper collection of evidence at the crime scene or lack of DNA evidence to begin with?

States like Texas and New Jersey has at least moved toward policies and jury instructions on the problems and shortcomings of eyewitness identification.  California is largely operating in the stone age.

The current California Jury Instruction on Eyewitness Identification, CALCRIM 315, was adopted in 2006 and modified in 2007.  But in terms of the research and understanding of this issue, that might as well have been the dark ages.

The instruction reads: “You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony.”

The instruction then asks the jurors, in evaluating the identification testimony, to consider a number of questions.

Many of these are good and well-informed questions, asking the jurors to take into account a variety of factors like whether the witness knows or had contact with the defendant, how well they could see the perpetrator, circumstances affecting the ability to observe, etc.

However, there is a notable question that has a problem.  They ask, “How certain was the witness when he or she made an identification?”

Recently, University of Washington professor of psychology Geoffrey Loftus, one of the leading researchers on memory, testified as an expert witness in a Yolo County trial where the issue of eye witness identification was a crucial factor.

Dr. Loftus believes that confidence is largely an artificial construct and it could be based on false information or post-event information which tends to contaminate memory with information that did not come during the event but rather comes into the consciousness later, helping the witness to construct a more coherent but less accurate account of events.

While post-event information makes it seem more “real,” the memory could actually be based on a false premise.  For instance, an eyewitness may hear from someone else that the attacker wore a certain color, and subconsciously accommodate that information to his or her memory of the event.

Because this process works subconsciously, there is a tendency for witnesses to express a high degree of confidence in the identification, when, in fact, it is based on completely false post-event information.

New Jersey is probably on the forefront of states attempting to fix the problems of eyewitness identification.  Researchers like Dr. Loftus believe that eyewitnesses get their identifications wrong by up to 25 percent of the time – and it is really worse than that when you exclude easy cases such as those where the witness is familiar with the subject.

Some of these factors are already in the California jury instructions.

For instance, the New York Times reported in July, “A judge now must tell jurors before deliberations begin that, for example, stress levels, distance or poor lighting can undercut an eyewitness’s ability to make an accurate identification.”

“Factors like the time that has elapsed between the commission of a crime and a witness’s identification of a suspect or the behavior of a police officer during a lineup can also influence a witness, the new instructions warn,” they add.

“You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness’s identification,” the instructions say.

At the same time, the New Jersey jury instructions for the first time express the possibility of doubt, and that eyewitnesses may in fact get things wrong.

“Human memory is not foolproof,” the instructions say. “Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex.”

Even under the best of conditions, eyewitness identification is simply not reliable.  As the instructions indicate, researchers have noted that our minds do not work like tape recorders.

Writes the Innocence Project, “The human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.”

Unfortunately, until researchers provide better ways to test eyewitness memory and states like California catch up to current research, we will likely continue to wrongly convict people based on eyewitness identification.

Many of those cases will not have DNA evidence to exonerate the individual even 25 years after the fact.

More importantly, there are a number of cases, such as one that we will present later this week, where eyewitness identification was the only evidence linking the individual to the crime scene.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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24 Comments

  1. David M. Greenwald

    No. Because sometimes it is. So you do what New Jersey has done (see the middle of the article) and beef up the jury instructions so that they know under what conditions it is and is not reliable.

  2. Nemesis

    “”I hold no bitterness,” Mr. Wiggins would say in court as reported by the Associated Press following the judge’s ruling. “I’m thankful to Jesus Christ. He said he could move mountains, and surely this was a mountain. … And to the victim: I’m not mad at you. I don’t hold you responsible.”

    It really is amazing that the people who were wrongfully convicted are so gracious. To not be better about having so many years of your life wasted is amazing. A lot of people in our society today should take note.

  3. medwoman

    [quote]My guess is you are in there so long that you are just glad to be out rather than bitter than you were in. Just a guess obviously.[/quote]

    From listening to and speaking briefly with Frank Carrillo at the Vanguard event, I think this is probably a fairly accurate guess. It would seem that appreciation for what one has now and the ability to live in the present may be heightened by the degree of deprivation experienced while in prison. I agree with Nemesis that we would all do well to focus on what we have as opposed to what we feel is being taken from us either in the form of taxes or in the form of income inequality. If we were all to experience and express this degree of appreciation and lack of bitterness, I can only imagine what we might achieve.

  4. E Roberts Musser

    [quote]My guess is you are in there so long that you are just glad to be out rather than bitter than you were in. Just a guess obviously.[/quote]

    I suspect that it is also a recognition that the victim in all honesty thought the exonerated was truly the perpertrator, in a difficult situation. After all, the victim was raped, and therefore in a highly emotional state at the time. The exonerated I’m sure blames law enforcement for not doing a proper investigative job rather than the victim.

    [quote]Even under the best of conditions, eyewitness identification is simply not reliable.[/quote]

    No evidence is 100% “reliable”, not even DNA evidence, so I wasn’t sure what you meant by this statement. However in your answer to hpierce, I think you make clearer what you are getting at, to wit:
    [quote]So you do what New Jersey has done (see the middle of the article) and beef up the jury instructions so that they know under what conditions it is and is not reliable.[/quote]

    Even here, I think what you mean is “beef up the jury instructions so that they know under what conditions eyewitness testimony is apt to be more accurate”. Evidence is not “reliable” or “unreliable”, but “more” or “less” reliable under certain circumstances, e.g. lighting, distance, amount of time. What you want is a higher degree of reliability from eyewitness testimony so that the accuracy of such evidence is greater. But it will never, ever be perfect…

  5. David M. Greenwald

    I’ll just point out that Elaine, you are the only one to reference “perfect” and 100% “reliable” – no one else in this discussion has.

  6. David M. Greenwald

    Even reasonable doubt is not said to be 100%.

    I did find this interesting: “those legal authorities who venture to assign a numerical value to “beyond a reasonable doubt” place it in the certainty range of 98 or 99 percent.”

    That number seems quite high to me, but regardless, for our purposes even reasonable doubt is not 100%.

  7. hpierce

    However, I cannot image, how any juror would be able to possess a “shadow of a doubt”, that the young man who was arrested outside the theater in Aurora was in fact, the shooter. One might reasonably argue degree of guilt, due to mental illness, etc., but not identity, yet the fact is that (identity) will be established on the potentially “erroneous” eye-witness testimony of those in the theater and the police who apprehended him. Judging degree of mental competency, I’d argue, is more subjective than being an eye-witness. No one can claim to know the young man’s mental state at the time he carried out his horrific crime (except, perhaps him).

  8. David M. Greenwald

    But hpierce, this is the critical point here – the shooter in Aurora, there is a lot of other evidence linking him to the crime other than the eyewitness. In the rape case, it was really her identification. In a story that we’ll be publishing this week it was only based on identification for one of the defendants. Those are the ones where you have to look really hard at just the witness saw and whether they were really able to make the identification.

  9. Nemesis

    “So you do what New Jersey has done (see the middle of the article) and beef up the jury instructions so that they know under what conditions it is and is not reliable.”

    David this is a good start, but during closing arguments prosecutors tend to stretch the truth about evidence, especially if the case is weak. With no DNA it was a weak case and jury instructions alone aren’t enough. Prosecutors have a huge amount of leeway in what they can say during closing arguments and juries tend to latch on to what they say when there is not much evidence presented.

  10. hpierce

    I wasn’t disagreeing on the New Jersey situation… the key “take-away” is situations are different. The approach to them needs to be as well. Yet, for consistence and fairness, if Aurora was a City in New Jersey, and all the other facts were the same, wouldn’t the defendent be entitled to the same admonition about eye-witness testimony?

  11. hpierce

    BTW, the answer is “yes”. There is a concept of preponderance of evidence… if there are 30 facts, and each has a reliability factor of 80%, the huge odds are that they point to the truth.

  12. David M. Greenwald

    Hpierce: Yes, he would be. The differences would be the number of witnesses and their ability to see him. And I think your point is good as well – the more facts you have connecting the guy, the better you feel about the identification. If you study the wrongfuls you see that the eyewitness ID either stands alone or is accompanied by other critical errors.

  13. E Roberts Musser

    [quote]dmg: But hpierce, this is the critical point here – the shooter in Aurora, there is a lot of other evidence linking him to the crime other than the eyewitness. In the rape case, it was really her identification. In a story that we’ll be publishing this week it was only based on identification for one of the defendants. Those are the ones where you have to look really hard at just the witness saw and whether they were really able to make the identification.[/quote]

    This is key – if the ONLY evidence is eyewitness testimony, then it needs to be looked at with much greater skepticism, than if there is other corroborative evidence. Secondly, if DNA evidence could exclude a defendant, then the defendant should have the right to have the DNA tested. Thirdly, there needs to be greater uniformity across the nation on techniques for eyewitness identification to ensure greater accuracy. For me, the jury instructions are not nearly as important as properly conducting the investigation in the first place…

  14. Nemesis

    I agree with the above statement. Especially about the DNA evidence. It seems too often, especially in older cases that there is a fight about DNA testing when it can exclude the defendant (or by that time the convicted).

  15. E Roberts Musser

    [quote]I’ll just point out that Elaine, you are the only one to reference “perfect” and 100% “reliable” – no one else in this discussion has.[/quote]

    The confusion for me was when you made the statements “eyewitness identification is simply not reliable” and “beef up the jury instructions so that they know under what conditions it is and is not reliable”. Evidence isn’t black and white “reliable” or “unreliable”; it is either “more” or “less” reliable. So like hpierce, I wondered if you were advocating that eyewitness testimony never be used because it is “unreliable” according to your wording; but your answer to hpierce indicated otherwise.

    The reason I am making this important distinction is to highlight the problem with evidence – it has to be taken in its totality, a point made later by hpierce and which you concurred in. If the eyewitness testimony is the only evidence, without any other corroborating evidence, the eyewitness testimony needs to be more closely scrutinized for its degree of reliability. If, on the other hand, there is a lot of other corroborating evidence, to back up the eyewitness identification, then the degree of reliability of the eyewitness identification becomes far less important.

    However, because law enforcement cannot know ahead of time how much evidence there will be for any particular crime scene, IMO proper investigatory techniques should be mandated by law, nationwide as a due process issue.

  16. Mr Obvious

    [quote] Finally a California lab was able to exclude Mr. Wiggins as being the rapist.[/quote]

    I find this sentence interesting. I read this to mean they will try different approaches until they find a conclusion they like. I think the difference between initial testing and subsequent testing should have been explained better. We can go find experts that will say anything. Remember the defense gang “expert” that actually testified that the Norteno gang doesn’t exist?

    How was Wiggins contacted by the police and identified as a suspect?

    Mr Wiggins may very well be innocent but the reporting leaves questions to be answered.

  17. David M. Greenwald

    “I read this to mean they will try different approaches until they find a conclusion they like”

    Obviously since the Judge and Prosecutor agreed to the findings, the wording was probably not the best. Since I was reporting based on other sources, I can’t answer that for you.

  18. Nemesis

    You know Frontline has had a series of shows that deal with the problems of the legal system. One of the problems is what makes an expert and unfortunately according to the courts it is just a certificate that is really meaningless.

  19. Roger Rabbit

    Totality of circumstances: eye Wit alone is very suspect and much like a fingerprint near the crime scene. Neither, on their own proves much, however if you add other facts and circumstances then they both can be made strong.

    Eye witnesses may mean well, but I have seen DA’s and cops go back after a wit cannot make an ID and then by talking and by leaking parts of the investigation or other evidence, can talk (lead) the witness into a proper ID. I remember a rape case where the lady said she was drunk and could ID the person in the photo line up, then another cop went in with the victim and came out with a positive ID on the right guy we had in custody, the DA did not call me to testify or use my information and only used the cop that got the proper ID. Happens all the time.

    The system is only has good as the people enforcing it, using it or manipulating it.

    As for experts, the standard if very low, something like, more knowledge than the average person about the subject matter, so the DA uses COPS, who are part of the prosecution team, and the DEF uses others that are not cops since the cops would support the DA to ensure they keep their “team player” position. Another thing about experts, and both sides do it, is they shop for what they want. A good fix for this would be for the court to have a list of experts and both sides have to use from the list to help level the playing field. A Jury tends to believe cops more and normally the DA is only one that can get working cops to be their expert. IF a cop every helped the defense and was an expert, Reisig would claim he is incompetent and would try and put him on the Brady list so no one can use him. Another trick of the DA, if a cop can hurt you with his testimony you tell the cop to make themselves unavailable and tell them if they testify they will put on the Brady list and will lose their job. That tends to keep cops in line for court.

    Another common term for cops when they go to court or testify is they say “I have to test-a-lie” a play on words for testify. Of course the DA tells cops not to say that since the defense might bring it up and it would hurt their credibility, but it is said all the time among cops part as a joke and part as the truth.

    So if anyone thinks an eye witnesses cannot be impacted or influenced they have never seen the inside of the system at work.

  20. E Roberts Musser

    [quote]You know Frontline has had a series of shows that deal with the problems of the legal system. One of the problems is what makes an expert and unfortunately according to the courts it is just a certificate that is really meaningless.[/quote]

    An expert witness does not necessarily need a “certificate” of any kind. An expert need only know more on the subject matter than the average person. For instance, if there was an issue that arose about plumbing, a local plumber could be called as a witness.

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