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.
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