In a recent trial, our main witness was a self-confessed drug addict, a man aged about 50 with (it turns out) poor eyesight. During direct examination, and in the usual manner, the ADA paused then asked him:From the research I've seen, eyewitness errors primarily occur because our eyes capture less than we imagine and much of what we "see" is actually filled in by our memory. So witnesses who knew an offender prior to the incident are much more likely to ID the right person. That's why, in cases where witnesses are ID'ing strangers, I'm increasingly convinced such testimony cannot legitimately be relied upon "beyond a reasonable doubt." That's particularly true in light of scientific findings that certainty by eyewitnesses doesn't necessarily correspond to the accuracy of their testimony. To prevent ever-more false convictions based on mistaken eyewitnesses, IMO corroboration should be required in such cases that independently ties the defendant to the crime.
"And the man who fired the gun, do you see him in the courtroom today?"
The witness took his time looking around the court, eying the judge, the jury and then finally... a wavering finger pointed towards the defense table:
"There, I think that's him."
The finger had shifted and a surprised deputy looked up, identified as the man firing off shots the night of the murder.
A surprised female deputy, in full uniform.
Tuesday, December 01, 2009
More on the fallibility of eyewitness testimony
Mark Pryor over at the new blog DA Confidential supplies this example from personal experience demonstrating the fallibility of eyewitness testimony and the risks of making a case based primarily on eyewitness evidence: