Thursday, December 04, 2008

'He did it': Eyewitness misidentifications still happening

Dallas has witnessed a large number of exonerated defendants based on DNA evidence, nearly all of whom were convicted because of faulty eyewitness testimony. And if you think that's not still happening, check out this tale told by Texas Lawyer about a crime victim who identified defense counsel as the perpetrator while testifying in court:
On Nov. 11, George Milner Jr., a partner in Dallas' Milner & Finn who many consider the dean of the Dallas criminal-defense bar, was defending Marc Needham, who was accused of misdemeanor deadly conduct. According to a trial transcript, when Dallas County Assistant District Attorney Brian Poe asked a witness during direct examination to identify the defendant, she pointed to Milner. Poe asked her if she was sure, to which she replied: "He's the only one in the blue suit with blue tie. He stood up and objected. Him -- that's him there." After Poe passed the witness, Milner didn't miss a beat, telling Dallas County Criminal Court No. 6 Judge Angela King: "Your honor, first of all let me enter a plea of not guilty." Then Milner began cross-examining the witness. When Milner asked her what she remembered, she said: "Well, sir, I hate to tell you this, but the first thing I heard was you pointing a gun at me and saying, 'Now do you want to F with me?' Don't you remember that?" "No. My memory is about like yours," Milner said. "No, mine is very sharp, sir," the witness replied. During redirect examination Poe asked the witness, "Would you be surprised that the person you've been talking to for the last 25 minutes is actually named George Milner? He's a prominent attorney here in town, and he represents Marc Needham?" The witness replied, "Well, that's a good trick they played, because he looks just like him to me." The jury found Needham not guilty. Poe believes the reason the witness misidentified Milner is she saw him when she testified at a grand jury hearing. For Milner, it was just another great story he has accumulated during his 50 years practicing criminal law. "It was funny -- one of those once-in-a-lifetime deals," Milner says. "There's no rule as to what you do when that happens."
If the prosecutor's theory is right that the witness saw defense counsel at the grand jury proceedings and thus assumed he was the defendant, that shows how strongly such post-event associations can influence who a witness identifies. Milner thought it was funny, and I suppose it was, but the problem of juries relying on unreliable eyewitness testimony without corroboration is no laughing matter.

H/t to Bill Baumbach for pointing me to this story.



Anonymous said...

Milner has been practicing for 50 years? I don't think so. Maybe his memory might not be as good as he thinks it is

Holly said...

Awesome. I have a case that was actually ridiculously indicted.... Victim says man who attacks him has brown hair and white sweatshirt. My guy shows up at establishment 2 months later and victim calls cops...HE IS HERE! Ids him as attacker. My guy arrested on the spot, etc. Problem is that 2 other persons who saw perp said he had orange sweatshirt on. client has "alopecia"....he can't grow hair. hmmmmm. Good 'ole reliable eyewitness testimony of the victim....

Anonymous said...

This is not surprising. But despite the numerous exonerees and the numerous people convicted everyday based on faulty eye-witness testimony nothing will change. The State will continue to use this as evidence of guilt and the innocent will continue to go to prison.