An eight-month review by The News of previously closed prosecution files found, however, that the faulty identifications were the predictable consequences of a criminal justice system that ignored safeguards meant to protect the innocent. The files reveal a law-and-order machine that focused on securing and bolstering eyewitness testimony, regardless of the victim's doubt or the lack of corroborating evidence. ...That last bit about judges allowing testimony based on a witness expressing certainty in court is one of the most troubling aspects of this problem. Simply put: certainty is not a metric for accuracy. In fact, recent discoveries in brain science lead researchers to believe certainty is an emotionally based sensation, not generally a result of empirical observation and analysis. (See this prior Grits post on certainty.) Humans actually get a dopamine boost from feeling certain even when we don't really know the answer - an evolutionary adaptation which may stem from confronting abstract choices that have no clear-cut answers in the face of perilous threats.
In addition to an almost slavish reliance on eyewitness testimony, a review of the Dallas County DNA cases showed that:
• Thirteen of the 19 wrongly convicted men were black. Eight of the 13 were misidentified by victims of another race. Police investigators and prosecutors in the cases were all white, as were many of the juries of the 1980s.
• Police officers used suggestive lineup procedures, sometimes pressured victims to pick their suspect and then cleared the case once an identification was made.
• Prosecutors frequently went to trial with single-witness identifications and flimsy corroboration. Some tried to preserve shaky identifications by withholding evidence that pointed to other potential suspects.
• Judges, governed by case law that has not kept pace with developments in DNA testing or research on eyewitness testimony, routinely approved even tainted pretrial identifications as long as an eyewitness expressed certainty in court.
So whether a witness is "certain" in the witness box has virtually nil to do with whether their testimony is accurate. If it's wrong but they've been convinced it's right because they've seen the same photo over and over or police told the witness "we've got the guy," a witness will be just as "certain" either way. Reported McGonigle and Emily:
Because juries respond so well to eyewitness testimony, even discounting strong alibi witnesses when a witness says "He did it," the system seizes on it to the exclusion of other evidence and has, they say, essentially become addicted to it:
If an eyewitness exhibits certainty, records and interviews show, judges do not suppress a prior identification no matter how the photo lineup was conducted.
"The fact that some particular process might not have been as pristine as we'd like it to be does not in and of itself make them wrong," said state District Judge John Creuzot.
U.S. Supreme Court decisions in the 1960s and 1970s set a high bar for withholding an eyewitness identification from a jury. And in 1975, the Texas Legislature amended state law to make it easier to prosecute sexual assaults without evidence to corroborate eyewitness testimony.
The law was part of a national effort by women's groups to remove provisions deemed unfair barriers to the prosecution of sexual assaults. Each of the 19 Dallas County DNA exonerations occurred after that law change.
Except we now know that if the witness saw it, maybe they didn't see it, at least not just the way they remember it. Science has pretty thoroughly debunked the notion that our minds can take snapshots of what we see and catalog them away for future retrieval. The witness who says "I'll never forget that face" may be "certain" that's true, but actually humans don't nearly so much see the world on a moment to moment basis as project it - most of the imagery going to our visual cortex, scientists now believe, comes from the brain's memory banks and supplements what we see with past knowledge.
Eyewitness testimony is the crack cocaine of the criminal justice system.
Law officers know the potential risks but are addicted to its power to convict.
"Eyewitness testimony was gold," said Kevin Brooks, who heads the district attorney's felony trial bureau. "If the witness said they saw it, they saw it."
That's why eyewitness IDs tend to be much more reliable where the witness already knew the offender from elsewhere, but not so much when they didn't previously know each other. Otherwise, as the teaser to an hour-long public radio piece on memory put it last year (highly recommended), "According to the latest research, remembering is an unstable and profoundly unreliable process. It’s easy come, easy go as we learn how true memories can be obliterated and false ones added."
A sidebar to the News story titled "Rape victim studying science of memory after man dies serving wrongful sentence" (Oct. 12) explores this budding science of memory in the context of the tragic Timothy Cole/Michelle Mallin case out of Lubbock, chronicled on Grits here, here, and here.
Dallas District Attorney Craig Watkins has concluded from his experience that the same problems with misidentification undoubtedly still continue today and that these DNA exonerations likely represent just a fraction of the total number of innocent people who've been convicted because of it:
Really good stuff from McGonigle and Emily; here's their full series on Dallas DNA exonerations.
Eyewitness testimony is not always flawed, but no one really knows how often it's wrong. But because the same identification procedures were routinely used in cases that lacked biological evidence to test, Mr. Watkins said, the number is "a lot more than 19."
It is likely, he said, that an innocent person has been convicted by faulty eyewitness testimony during his first two years in office. He is trying to instill in his prosecutors the need to be more skeptical and to seek out corroboration, Mr. Watkins said.
"We know that eyewitness identification is faulty," he added.
RELATED: See an excellent public policy report from The Justice Project detailing problems with eyewitness identification procedures and suggesting reforms.