Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

Hopefully by now everyone recognizes the problems with eyewitness identifications - the problem being that they are not always reliable. A substantial amount of research has been conducted, and they all reach the same result. Even the National Institute of Justice weighed in several years and acknowledged the problems, and suggested reforms.

Just how unreliable (or reliable) are eyewitness ID's. No one will ever know the true number. We do know that 75% of the DNA exonerations involved eyewitness IDs. Since DNA is available in only a handful of cases, you have to figure the percentages are pretty high. Some have suggested its roughly 50% - or the equivalent of chance.

We do know there are a number of factors that  cause eyewitness IDs to be less reliable. Those include the presence of a weapon, and identifying someone of another race. We also know the manner in which the line-up is conducted has a tremendous influence - the ideal is individual pictures, presented by someone who knows nothing about the case. We also know something about how witnesses view their testimony; most are absolutely convinced they are right. The research is clear that certainty does not equate with accuracy.

So what impact has all this knowledge had on the criminal justice - absolutely none. Only a few states have implemented changes in procedure. More importantly, courts appear to have completely ignored this knowledge.

A recent law review article attempted to study the impact the research has had on judicial decisions. They chose cases where the ID was challenged, and there was no (or little corroborating evidence). In all the cases the defendants were convicted, and appealed. The goal was to determine whether the courts were applying the research in deciding these cases. The answer was an overwhelming NO. Not only were the courts not recognizing the problems with eyewitness, they were using factors that have been soundly rejected. In upholding the identifications a number of courts noted the witness was certain about the identification. A total of 96 cases were studied - all decided within the last year. Relief was granted in only two of those - and that was not based on problems with the ID.

So what does that tell you? According to the author of the article it suggests that innocent people are  still being convicted on bad IDs. And it looks like that is not going to change anytime soon.

I think we have to recognize that the general public still sees eyewitness testimony as sound. While they are willing to acknowledge people can be mistaken, they are not willing to say the witness in their case is mistaken. We have all seen cases where the evidence  presented by a defendant was almost overwhelming, but not enough to overcome the eyewitness. That means you cannot  simply leave these cases to juries.So what's the answer?

The final responisibility is with the courts and the legislature. The legislature needs to mandate changes to cut dowon on the possiblity of error. That's not going to be enough to solve the problem though. Judges still have to do their jobs - that means throwing out IDs in bad cases. They can't simply take the easy road, and leave it the jury. Lawyers also have to keep pressing the issue, and challenging IDs.

So let's get out there and do something.

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Several people have already discussed the case of Timothy Cole. Cole was a Texas Tech student when he was convicted in 1985 of rape and sentenced to 25 years in prison. Cole died in 1999 from asthma complications. He maintained his innocence, even it meant he wouldn't be paroled. His family never doubted, and never gave up.Their results paid fruit in 2003 when DNA evidence cleared him, and pointed to the guilt of another man. As with over 75% of wrongful convictions, this one involved a bad identification.

The identity of the actual rapist was not a mystery. He had been trying to admit his guilt for several years. Although its rare that someone would admit to committing such a serious offense, investigators didn't believe him. They probably didn't care - after all, they had a conviction in the case. When the DNA evidence came back his confession could no longer be ignored.

Cole's family initiated a court of inquiry in Travis County, and presented evidence seeking Cole's exoneration. They were successful, and former Court of Criminal Appeals justice Charlie Baird granted the request. The family will not seek a pardon from Governor Perry, and also seek to have the conviction expunged from his record. Even though he's no longer with us, it is a formal recognition that he is in fact innocent, and should have never been convicted.

In connection with the hearing, Cole's family appeared at the legislature, and received what has been described as a truly warm reception. Several bills have already been introduced dealing with innocence issues, and maybe this year they have a chance of passage. It helps to put a face on an issue. Several other exoneree's also were in Austin to support the bills. While I'm all for anything that possibly prevent the conviction of an innocent person, I have doubts about how effective these bills will be without a fundamental shift in the system.

Mistaken identifications have been targeted as a major cause of wrongful convictions.  Some states and local police departments have changed the way line-ups are conducted. With traditional line-ups, the danger is that the individual who most closely resembles the assailant will be picked. An identification can almost be assured by the other pictures included in the line-up. That appears to be what happened with Cole; it was either going to be him or no one. Research has shown that showing pictures one at time will improve accuracy. Other changes include having an investigator not associated with the case do the lineup so there is no way to influence the selection.

I have no doubt such changes will improve the process. Even with better procedures though, I think you still have to accept that mistakes are going to be made. Human memory is not like a camera; you cannot simply go back and recreate what you saw. It is influenced by a number of variables. most of which you are not aware of. The bottom line is that identifications are not perfect, and everyone seems to know that except prosecutors and investigators. Personally, I think they know it, they just don't care. The easy way to close a case is with an identification. Usually any further investigation stop, and the case is closed. Often times, as in Cole's case, investigators ignore evidence which should have caused them to question the identification.

Maybe we need a corroberation requirement, like we have with accomplice witnesses. You cannot obtain a conviction without other evidence that supports guilt. Over time, perhaps that would cause a change in tactics. Instead of throwing someone into a line up with nothing more than a hunch, maybe they would wait until they had other evidence. More importantly, maybe investigation would continue after the identification is made. Identifications would be treated as nothing more than circumstantial evidence.

Until we recognize the inaccuracy of identifications, the problem is going to remain. No matter how many cases of mistaken identification  are reported, police and the general public still believe its accurate. The tendency is to look at those cases as aberration. If we could ever get accurate statistics, the truth may be that an accurate identification is the exception. After all, think of all the things going in most crimes; its no wonder that the ability to accurately recall what someone looks like is diminished.

I hope these changes come about. However, I also hope that's not the end, and everyone expects the problem is fixed. As long as police can close a case without a substantial amount of work they are going to do; its only human nature. Cases will continue to be closed with identifications, and probably many will be wrong. We still have a long way to go.

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I've written before about the unreliability of eyewitness testimony. Most people (including jurors and prosecutors) believe eyewitness testimony is generally reliable. In fact, most prosecutors are ecstatic when they have a case with an eyewitness. We have seen countless examples during the last several years of identifications that were clearly wrong. Even with that knowledge, the reliability of eyewitness testimony is still accepted, and difficult to overcome.

A humorous example of a mistaken identification occurred in a Dallas Courtroom. The following is from a story in Texas Lawyer:

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."

This case points out something more than the unreliability of eyewitness testimony. It points out something all defense lawyers know - the witness knows someone seated at the other side of the table is the defendant. It's generally not to hard to figure out which one it is - you can usually tell which one is the lawyer and which one is the defendant. Here, the witness was apparently confused. There is no doubt she wasn't basing her identification on what she saw at the time - she was basing it on who in the courtroom was fit the description the best.

This also points out a problem with lineups - witnesses pick the person who best fits the person they saw. This is why everyone recommends sequential lineups, where the witness is shown one picture at a time.

One of the things that bothers me about this case is the action of the prosecutor. The job of the prosecutor is to see that justice is done. If the only evidence was the victim's identification, is it justice to prosecute someone whose identity is suspect? Too often prosecutor's rely on juries to make the decision on guilt, and they did so here. In doing so, they abdicate their responsibility. More importantly, most jurors believe prosecutors have no doubt about a defendant's guilt. Too often, that enters their decision, and could have done so in this case. Thankfully jurors saw the case for what it was, and returned a not guilty verdict.

I wish that the more of these stories that come out, the more the public would start question the reliability of eyewitness identification. Unfortunately, there hasn't been much impact so far, and I don't see it changing. That is why it is critical that we adopt practices that will ensure identifications are as accurate as possible.

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Dallas County is scheduled to release another person based on DNA evidence. The individual is the 19th person released since Dallas County started reviewing cases, and has been in jail for 26 years.

Unfortunately, this story is a familiar one. The victim identified the defendant, and that was all the evidence that was needed. The identification was questionable, since a lineup was mailed to the victim, and two of the pictures were of persons without a shirt, which was the description provided. Obviously, that was not enough to convince a jury.

It is also a familiar story of investigation. Not only did they conduct a questionable identification procedure, they also refused to look into what appeared to be solid alibi evidence. The defendant was ablet o produce a time card showing he was working at the time, and his employer testified for him.

it amazes me that even with all the exonerations, eyewitness testimony is still viewed as almost infallible. Jurors rarely question the identification made by a victim, especially when they point out the person. Even when they are told about the problems with such identifications, they still are not willing to reject it. There are no telling how many people are in prison because of bad identifications. The vast majority of those will have to stay there, because there is no physical evidence that will exonerate them.

We have to come up with a better way to handle these cases. Presenting expert testimony is a start; jury instructions may also help. The best way to deal with the problem though is to avoided it the first. Investigators need to stop blindly accepting eyewitness identifications, and look into evidence to the contrary. After all, that is what investigating is all about.

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A Florida youth minister and father of four, Tallie Gainer,  ended up as the defendant in a felony bad check case. He was arrested in front of his family, exhausted his savings, and lost out on a business opportunity. On the surface, the story doesn't sound that remarkable. However, there is more to it, and the rest of the story points out several problems with the criminal justice system.

The ordeal started when Gainer left his wallet at a restaurant. Someone using his ID subsequently went into a bank, and tried to cash a check. The transaction didn't go through, but the attempt was the basis of the criminal charge. Gainer was subsequently arrested after he was identified through photographs, and the teller identified him. What followed was unfortunately not uncommon for a criminal case. Gainer's lawyer tried to explain his wallet was taken, but of course, who is going to listen to a criminal? Fortunately for Gainer, the teller took a fingerprint because she suspected something was not right. Unfortunately for Gainer, the fingerprint did not get examined for 8 months. When it came back as not Gainer's, the charges were dismissed. That was not before his life was turned upside down, and he was financially bankrupted.

So what went wrong. Clearly, there was something less than a thorough investigation.  As with many cases, the police got an eyewitness ID, and closed the case. Despite all the research pointing out the fallibility of such identifications, police still accept them without question. If they had tried to verify the ID, Gainer would have been spared the embarrassment and costs of being charged in a criminal case.

Gainer is suing the police department, but that probably is not going to be successful. Police have immunity from such suits, unless they act intentionally. They can make serious mistakes - like here - and there is nothing anyone can do about. Hopefully, he at least got an apology......

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I just got back from a program on Actual Innocence at the Center For American and International Law in Plano. This was one of many seminars that have been conducted the last several years. (the impact of those seminars needs to be the subject of another post)

The focus was on DNA evidence, false confessions, and eyewitness issues. Education on eyewitness testimony is sorely needed, since mistaken identifications have been involved in a substantial majority of wrongful convictions (around 75%) Unfortunately, most jurors, and many lawyers, have mistaken beliefs about the reliability of eyewitness testimony.

There were two points I thought were significant. One concerns juror's beliefs about such testimony. Research has established that most people believe a person is more attentive when they have a gun pointed at them, or are otherwise under stress. They also believe witness' who are certain of their identification are more accurate. They also believe most people are able to accurately estimate time. Research has also established that the truth about those factors is exactly the opposite; you are less accurate when under stress, witness' who are certain of their identification are no more accurate than those who have doubts, and people are terrible at estimating time.

A more disturbing issue was a discussion of the inability of cross-examination to reveal mistaken identifications. Cross-examination is generally effective at uncovering witnesses who are lying, or trying to shade the truth. Eyewitnesses seldom intentionally lie; instead, they sincerely believe they are testifying truthfully. While you can point out the problems with eyewitness identifications, as discussed above, jurors beliefs about many of those problems are exactly the opposite, and as a result, they are unwilling to accept expert testimony. That leaves you with no effective way to uncover a mistaken identification.

Every lawyer knows how powerful eyewitness testimony is. If you don't have something really compelling to rebut it, it is impossible to overcome. There have been many great lawyers who have been unable to convince jurors that an eyewitness was mistaken.

So how do you handle the problem? One solution is to change people's beliefs about eyewitness identification. That requires aggressive education, and time; even with that, it is doubtful that will ever be successful. An easier fix is for Courts to become more aware of these issues, and scrutinize identifications more carefully. Prosecutors also need to be more skeptical, and not blindly accept all eyewitness identifications, even where they appear sincere. Instructions might also help, and are being given in some jurisdictions.

Defense lawyers have a difficult job in handling an eyewitness case. We can no  longer rely on cross-examination. We must use the research and experts that are available, and do the best we can to show jurors the view the witness had. Maybe if enough lawyers consistently take this approach, public awareness will start to slowly increase.

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