Different Perspective: How Ferguson Demonstrates the Pitfalls of Eyewitness Identification

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Professor Ronald Rotunda at Chapman University, Fowler School of Law, writes this week in Justia’s Legal Analysis “Verdict” that the Ferguson confrontation between Michael Brown and Officer Darren Wilson, among other factors, “also illustrates the problems with eyewitness identification.”

Professor Rotunda writes, “Next to a DNA match, many people probably think that eyewitness identification is most persuasive. Yet, this persuasive evidence is often wrong. It is not wrong because witnesses lie, although some of them may. It is wrong because our memories play tricks with us.”

According to the Innocence Project, “Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.”

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.”

“Robert McCulloch, the St. Louis County Prosecutor, used the grand jury to investigate the incident to determine if the tragedy was a crime,” Professor Rotunda writes. In releasing the grand jury testimony, Mr. McCulloch unwittingly “warned us of the dangers of eyewitness identification”

Quoting from the grand jury:

Many witnesses to the shooting of Michael Brown made statements inconsistent with other statements they made and also conflicting with the physical evidence. Some were completely refuted by the physical evidence.

As an example, before the results of the private autopsy were released, witnesses on social media during interviews with the media and even during questioning by law enforcement claimed that they saw Officer Wilson stand over Michael Brown and fire many rounds into his back.

Others claim that Officer Wilson shot Mr. Brown in the back as Mr. Brown was running away. However, the autopsy findings were released showing that Michael Brown had not sustained any wound to the back of his body. No additional witnesses made such a claim. And several witnesses adjusted their stories in subsequent statements.

Some even admitted that they did not witness the event at all but merely repeated what they heard in the neighborhood or others or assumed had happened. Fortunately, for the integrity of our investigation, almost all initial witness interviews including those of Officer Wilson were reported.

Professor Rotunda asks, “Was Brown running away from Office Wilson, charging towards him, or staggering?” He shows that the witnesses were actually in contradiction. For example, one witness said, “I thought he was trying to charge him at first because the only thing I kept saying was is he crazy?” In contrast, another witness testified, “I didn’t get the impression of a charge because it wasn’t fast enough to be a charge.”

Rotunda adds, “While eyewitness accounts varied, that was not the case with the two two autopsy reports provided to jurors. St. Louis County performed one autopsy and Michael Baden, a nationally known forensic pathologist, performed the other, at the family’s request. Both concluded that Mr. Brown was shot in the head, face, chest area and arms; he was not shot in the back.”

Empirical evidence supports a conclusion that eyewitness identification is unreliable. The professor cites a study of eyewitnesses who are intoxicated. Using a control group, the study measured eyewitness abilities at various levels of alcohol consumption and amazingly, after staging a kidnapping, “One week later, the study asked everyone to pick out the kidnappers out of a line-up. All three groups performed about the same, which was slightly better than chance. There were no significant effects of alcohol intoxication with respect to performance.”

He again cites the statistic that the Innocence Project cites, that in 250 convictions overturned by DNA evidence, for three-quarters, “the error was attributable to misidentifications by eyewitnesses. In criminal cases, 38 percent of the exonerations involving mistaken identify included multiple eyewitnesses. Exonerations show that misidentification is involved in 27 percent of homicides but in 80 percent of sexual assault cases.”

A Report by the National Registry of Exonerations found that that there were 873 exonerations entered in the Registry as of March 1, 2012. The most common causal factors that contributed to the exonerations are (1) perjury or false accusation (51 percent), (2) mistaken eyewitness identification (43 percent), (3) official misconduct (42 percent), (4) false or misleading forensic evidence (24 percent), and (5) false confession (16 percent).

“Some courts are starting to take notice,” writes Professor Rotunda. “In 2012, the Oregon Supreme Court considered the case of a criminal defendant who seeks to exclude eyewitness identification evidence in a pretrial motion. If the defendant argues that the witness lacks personal knowledge, the opposing side ‘must offer evidence showing both that the witness had an adequate opportunity to observe or otherwise personally perceive the facts to which the witness will testify, and did, in fact, observe or perceive them, thereby gaining personal knowledge of the facts.’”

The National Association of Criminal Defense Lawyers has encouraged the use of “double-blind” lineups. Professor Rotunda notes, “Double-blind tests are routine in the sciences but not in line-ups. With a double-blind sequential lineup procedure, the police show the suspects, one by one, to the witness. That reduces the possibility of a witness picking the person who looks most like the culprit even if that person is not the culprit. Moreover, the ‘double-blind’ procedure means that the police officer who conducts the procedure does not know the identity of the suspect. That prevents the officer from (unconsciously or consciously) providing visual cues to the witness.”

In October 2014, the National Research Council of the Academy of Sciences published a report evaluating eyewitness identification.

 

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He writes, “The Report warns us many factors compromise our memory, from the time we initially process the event to the time later when we retrieve it. ‘Unknown to the individual, memories are forgotten, reconstructed, updated, and distorted.’ The Report also recommends adopting ‘blinded’ eyewitness identification procedures.”

He concludes, “Police, prosecutors, victims, and the public are all interested in apprehending the guilty. However, a wrongful conviction does nothing to deter wrongful conduct because the wrong person is found guilty. If anything, it can encourage wrongful conduct because the guilty person is still loose. That guilty person still on the loose is the only party with an interest in not improving eyewitness identification.”

—David M. Greenwald reporting

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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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28 thoughts on “Different Perspective: How Ferguson Demonstrates the Pitfalls of Eyewitness Identification”

  1. PhilColeman

    Eyewitness identification–especially without any corroboration–has always been known for its high degree of unreliability. Criminal investigators are inherently reluctant to even submit such a weak case to the prosecutor. Sexual assault and child molestation cases are the prime example; two parties to the action, no witnesses, countered by strong prevailing public sentiment against such despicable behavior.

    Historically, prosecutions and convictions under these circumstances were fairly common, only to later discover the accused was innocent. Refinement of physical evidence gathering and analysis has helped immensely. Yet, there still exists occasions where a highly publicized outrageous crime is prosecuted when the only evidence is the identification of one victim. The case is charged primarily because of political consequences, rather than legal sufficiency.

    1. TrueBlueDevil

      Interesting feedback. For decades we have been told that those who claim rape are reliable the vast majority of the time, I saw one claim of 98%!

      But recently we have had two high-profile cases blow up.

      Rolling Stone Magazine did an article on a horrific gang rape at a fraternity at the University of Virginia. Someone started checking the facts, and nothing added up. The night of the alleged party, there was no party. Because of the details that were given in the story, they were easy to check, and nothing added up. Rolling Stone and the author have had to backtrack.

      Lena Dunham, who is a writer and TV producer / indie comedy biggie, penned a book (“Not that Kind of Girl”) where she claimed to have been raped at college (Oberlin). (Random House gave her $3.7 million for this piece of work.) Well, at first she said it was consensual. She later described it as something different. She named the rapist (Barry), described him as flamboyant, with a huge mustache, wild boots, and oh yes, he was a big-time white conservative. Three times she mentioned his politics. A reporter went to the college, a small liberal school, and followed all of the detailed facts. Again, nothing added up. They did find a “Barry”, who is now considering legal action, and the author is back tracking from what she wrote and the publisher has a red face.

      In looking up the title of the book, I now see that this author also describes illegal sexual behavior she claims to have tried on her own little sister which is now characterized as molestation. Yuck.

      1. David Greenwald Post author

        “Interesting feedback. For decades we have been told that those who claim rape are reliable the vast majority of the time, I saw one claim of 98%!”

        I think you have to be careful here. There is a difference between eyewitnesses being poor observers of critical events and victims fabricating incidents. Part of the problem with rape was that you had victims reluctant to come forward because of the legal process, scrutiny, etc. I’d be cautious on statistics just as I would cautious on drawing too close a parallel between high profile cases and global patterns.

        1. TrueBlueDevil

          And who decides what is high profile, or what just happens to get ink? I stumbled into another 3 apparent false cases when I looked up the former UC Davis wrestling coach, Michael Burch, a few months back.

          Burch coached a student-athlete, William R. McCormick III, at Brown University. McCormick was accused of raping his friend Marcella “Beth” Dresdale in a dorm room at Brown in 2006, and the campus quickly expunged McCormick off the campus without any due process, formal complaint, or proper investigation. The accuser has an extremely wealthy father who was also a major donor to Brown. Some of the basic facts just didn’t seem to add up. When Burch provided support to the awkward McCormick, Dresdale’s father went after him with a private detective.

          Later in the article (see below), it is revealed that this young lady pulled the same false accusation against a teacher in high school who caught her cheating on a test. A third apparent trumped up charge at Brown was also pushed by another female student with wealthy parents. McCormick allegedly received a settlement offer of over $1 million and his lawsuit was dropped, and I’m not sure what happened to the other two cases.

          The Brown Spectator:  A University’s Shame: How Brown betrayed one of its students

          http://brown-spectator.com/2012/05/a-universitys-shame-how-brown-betrayed-one-of-its-students/

          http://www.golocalprov.com/news/brown-mccormick/

          1. David Greenwald Post author

            “And who decides what is high profile, or what just happens to get ink? ”

            That’s something I’ve always wondered, because it’ pretty easy to find identical cases except one gets covered, one doesn’t. Why is that? Couldn’t tell you.

            BTW, we’ve covered a number of false rape cases in Yolo during the last five years.

        2. TrueBlueDevil

          I think the old axiom works well. “Dog bites man, no story; man bites dog, story.”

          If there is something unusual or titillating or notable, it is more likely to be covered. Then add in new media, and political promoters to the equation. At about the same time that Michael Brown was killed, an African American young man, and Caucasian American young man, were shot (separate incidents) in the same vicinity and received markedly less coverage. The white young man died, I’m unsure about the other gentleman.

          There was a third victim of the shooting rampage in Sacramento last month that took the lives of two sheriffs. There is an African American man who was shot during an attempted car jacking and should have died, but with the heroic efforts of police, emergency personnel, and doctors, he survived his massive injuries. I think we do the police a disservice when we don’t mention the many lives they save while endangering their own.

    2. hpierce

      Would appreciate your “take”, Phil.

      Thought juries are instructed to “weigh” the evidence, and depending on type of case, decide based on “reasonable” doubt. “Reasonable” doesn’t mean 0.5% doubt.  If you can accept those as givens, wouldn’t it be reasonable to instruct juries as to the limitations of ALL evidence… “eye-witness” has benefits AND limitations, DNA could be contaminated/misinterpreted/”fudged”, photographic could be deleted/”photo-shopped”/wrong angle, confessions might be coerced/hallucinations/false.  It seems, at the end of the day, ALL evidence has to be “weighed“, but if we reject all evidence based on extreme “what if’s”, nobody could be convicted of ANYTHING, no matter how culpable.  Am thinking, all we can do is our best, and no-one should expect ‘perfection’.

      1. PhilColeman

        Within the constraints of California’s “Rules of Evidence” and applicable case law, both prosecutor and defense attorney can argue merits of any evidence entered. For me to speak more specifically, it become mind-numbing boredom that only trial lawyers could find relevant to the primary topic at hand.

  2. Barack Palin

    This wasn’t a case of confused eyewitnesses, it was a case of some witnesses lying in order to push the white cop shooting black man for no reason agenda.  The evidence showed them to be liars.  Luckily there were other witnesses, including six who are black, who collaborated Wilson’s version.

    1. David Greenwald Post author

      Well the author made that point, and a lot of times eyewitnesses intentionally deceive police and prosecutors. Whether that happened here, I don’t know.

      1. TrueBlueDevil

        I have no doubt there were liars on both sides.

        The physical evidence corroborated the officer’s story, as well as 6 or 7 African American witnesses.

        1. Davis Progressive

          the physical evidence corroborated some of the officer’s story, but the kill shot is actually still in question as to how far away he actually was from brown.

  3. Frankly

    Put cameras up in as many public spaces as possible.   Require cops to wear them.  There are, of course, problems with this too… but it is better than the alternative of relying on citizens that routinely lie, cheat and steal.

    1. hpierce

      Have to assume you mean those “selfish unionized public employees” as the citizens who “lie,cheat and steal”. [Tongue firmly in cheek][Would not like to think that you meant that in a predominately black, Southern, lower middle class community you were singling out any/all of those folk]

    2. Davis Progressive

      i think you missed the point – this isn’t just about lying, it’s about honest mistakes.  the research on the ability of individuals who have been drinking versus those not, demonstrates that.

    3. Tia Will

      Frankly

      Agree with your comment whether those doing the cheating and lying are civilians or police. The same constraints and laws should apply to all and should not depend on whether or not you happen to wear a uniform.

  4. Anon

    Since eyewitness testimony is very unreliable, all the more need for cameras.  Cameras aren’t a perfect solution either, but probably far more credible than eyewitness testimony.

    1. Davis Progressive

      cameras didn’t settle the garner killing.  i don’t disagree with you that cameras are helpful, but there are times when we will only have eyewitnesses and we need to understand the limitations of eyewitness testimony.

      1. Anon

        I don’t think we are in disagreement.  Eyewitness testimony has its limitations, as does video footage.  Better to have both than one or the other only.  And probably better to have video footage than eyewitness testimony alone.

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