Injustice, In Plain Sight

The trouble with eyewitness testimony


In 1989, a Waukegan, Ill., woman was raped after three men invaded her apartment. She told police the rapist had a tattoo, wore an earring in a pierced ear, and spoke English. Two days later, the cops took her to an office and said, "Watch the one sitting on the chair."

Alejandro Dominguez, age 16, had no tattoos or pierced ears, and he reportedly could speak only Spanish. The woman, however, said he was the attacker, and largely on the strength of her testimony, he was convicted. Not until 2002 did DNA analysis prove Dominguez was innocent.

It's a dismally familiar tale: a victim making an eyewitness identification that later turns out to be horribly mistaken. This type of mistake is universally known as the most common cause of false convictions. Yet law enforcement authorities, courts, and juries continue to treat it as pure gold.

But change is on the way in New Jersey, where last week, the state Supreme Court ran out of patience with a method that puts so many innocents behind bars. It mandated new rules that will help to prevent errors while giving defendants more avenues to expose them.

The justices said that "courts must carefully consider identification evidence before it is admitted to weed out unreliable identifications" and "juries must receive thorough instructions tailored to the facts of the case to be able to evaluate the identification evidence they hear."

Like other evidence, it must be subject to careful scrutiny and challenge. The burden of disproof will still fall on the accused, but it will be easier to meet. Chances are good that, as a result, some blameless individuals will be spared.

It's the least the courts can do, and it's something the U.S. Supreme Court will get to consider this fall, hearing the first major case on the issue since 1977. Since then, the fallibility of eyewitness evidence has been confirmed by a mounting pile of data.

In one experiment, a "customer" went into a convenience store to buy a soft drink with a traveler's check, which required him to provide an ID and spend a few minutes conversing with the clerk. Later, the clerks were asked to find the person in a group of photos. Forty-one percent made a wrong pick.

Errors don't happen because crime witnesses choose to lie. Most of them sincerely believe what they say. But their memories may be addled by shock, colored by a desire to punish the villain, or led astray by police suggestions.

The palpable certitude of someone who was present during a crime makes for powerful evidence to a jury. But as the New Jersey court opinion noted, "accuracy and confidence may not be related to one another at all."

Jennifer Thompson can vouch for that. In 1984, as she was being raped at knifepoint, she forced herself to study and note "every single detail on the rapist's face" so she would be able to identify him.

At the police station a few days later, Thompson found her attacker in a gallery of photos. She picked him again out of a physical lineup. She took the stand in court to point him out, and he was convicted.

But 11 years later, DNA evidence pointed to someone else. "The man I had identified so emphatically on so many occasions was absolutely innocent," she wrote later.

Thompson had many minutes to get a closeup view. Often, arrests are made on the basis of brief glimpses, sometimes in dim light or at a far remove. But even in these instances, eyewitness testimony can obliterate other evidence, as well as common sense.

In 1990, a jury convicted David Dowaliby of suburban Chicago of killing his 7-year-old daughter, largely on the basis of a witness who, on the night of the murder, saw someone in a parking lot where the body was later found.

He was 75 yards away, the lighting "wasn't that great," and the witness wasn't sure if the person was male or female, or black or white. All he knew was that the "nose structure" matched Dowaliby's. A jury voted to convict. It took an appeals court to throw out the case.

But many times, mistakes go undetected and uncorrected. We all know it's dangerous to believe everything we hear. The criminal justice system ought to acknowledge that the same holds for what we see.


NEXT: Anthony Randazzo Discusses the Obesity Epidemic, a Flash-Mob at Bachmann's Clinic, and Chuck Norris

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  1. Soft on crime! Better a thousand innocent persons be punished than one guilty person go free. If you can’t do the time, don’t be a guy prosecutors think looks close enough to give them a conviction so they can close the book on the crime.

    1. It’s not our fault! The prosecutors made us do it!

      1. 12 citizens, good and true, trying to decide who has the best lawyer.

        1. We can’t help it! Reality is unknowable!

        2. In one of my favorite episodes of “Third Rock from the Sun” the Solomon family travels to another dimension. In this new dimension Dick Solomon is a lawyer. The Dick Solomon from our dimension shows up at court and apparently wins the court case by pleading with the jury to remember how brilliant a lawyer he is.

  2. I might be a little scared of the criminal justice system if I weren’t middle class and white.

    1. middle class and white

      And law-abiding? Or do your middle class and white superpowers enable you to commit crimes at will without detection?

      1. Yes and yes.

        1. I hate that there are so many brown criminals in jail, and most of them totally innocent!

      2. Slaughtering then Occupying the First Families land, with Land Title from a big-government entitlement program called privation property.

        Oh, right, genocide of a whole people isn’t a crime in America.

        “[Indians are] nothing human except the shape…the gradual extension of our settlements will as certainly cause the savage, as the wolf, to retire; both being beasts of prey, tho’ they differ in shape.” ~George Washington

        “If we are to wage a campaign against these Indians the end proposed should be their extermination, or their removal beyond the lakes of the Illinois River. The same world would scarcely do for them and us.” ~Thomas Jefferson

        “If the savage resists, civilization, with the Ten Commandments in one hand and the sword in the other, demands his immediate execution.” ~Andrew Johnson

        “I don’t go so far as to think that the only good Indians are dead Indians, but I believe nine out of every ten are, and I shouldn’t like to inquire too closely into the case of the tenth.” ~Theodore Roosevelt

        “The American Indians were meaner to themselves than anybody was ever mean to them. The people were savages. It’s true, they damn well were ? these people were out there destroying timber, they were out there conquering and killing each other, scalping people.” ~Rush Limbaugh

        1. What goes around comes around.

        2. “the First Families land, with Land Title from a big-government ”

          1) Why is it the “First Families land?” What property of being on it first grants eternal ownership?

          2) The so called, but historically inaccurate “First Families” have no title at all. None, so they have no ownership whatsoever.

          1. I wonder how humans lived for 2 million years in the Original Affluent Society on the Land without having a paper title from big government. Squirrels, crows, and elephants are still doing it. Amazing!!! How do they manage to stay alive?

            The Land does not belong either to one or the other; but the GREAT BEING above allow’d it to be a Place of Residence for us. ~Tanacharison

            (quoted by George Washington, in the book “His Excellency: George Washington” by Joseph J. Ellis)

            1. Re: White Imbecile,

              The Land does not belong either to one or the other; but the GREAT BEING above allow’d it to be a Place of Residence for us. ~Tanacharison

              The GREAT BEING above is, obviously, the Tax Assessor.

            2. You didn’t answer the question.

            3. Slaughtering then Occupying the First Families land

              The Land does not belong either to one or the other

              You say they own it, then quote someone who says they don’t.

              So, you’re a liar then?

              1. If you support agricultural civilization, the City-State system, then you’re a Statist.

                It’s the State, and only the State, that grants abstract ownership of the Earth’s surface, which was once shared without near the violence that civilization brings.

                1. You still didn’t answer the question.

                2. Slaughtering then Occupying the First Families land

                  The Land does not belong either to one or the other

                  You say they own it, then quote someone who says they don’t.

                  So, you’re STILL a liar then?

                3. ownership of the Earth’s surface, which was once shared without near the violence that civilization brings.

                  You need to read what this guy has to say:


                  Basically, studies have shown that violence has decreased throughout all of history and on all time scales. The natural conclusion is that civilization arrests violence. (Yes, that last bit was a pun.)

                  1. In a sense, yes, but it is economics that ultimately does it. It just doesnt pay to drive $10M tanks and $50M airplanes to take over…say…..Guatamala. If you go after bigger game, you are liable to lose many of those multi-million dollar machines and thus, it doesnt pay.

            4. Silly rabbit. My gun gives me title just like the Indian’s tomahawk did before me and the animal’s teeth, claws, or beak did before that. So far, the GREAT BEING hasn’t put in a claim.

              1. I reserve the right to make future claims. I might need your land to make ‘better use’ of it in the future. Also, you must keep paying me taxes.

        3. Never heard of the Romans, the Huns or the Mongols? How about the Lakota who were called the Sioux, or Snakes, by the other tribes, whose lands they conquered, because of their warlike ways

          1. You are applying logic the white imbicile. He is immune to these concept. Repetition is his mantra.

          2. All plains tribes were warlike also the Snakes were(are) the Shoshone.

  3. Isn’t this really a human thing? People in general give much more credit to eyewitness testimony. Isn’t this the root of all those email forwards that go around and breathlessly credit a friend of a friend that this happened to and no amount of facts will ever change some people’s minds because it happened to someone they know!

    1. No.

      1. As a spider, I’m going to have to disagree. Maybe it’s not a human thing, per se, but mammalian at the least.

  4. or led astray by police suggestions

    This is the guy, right? Are you sure it wasn’t this guy? Take a look again. Are you really sure?”

    From the police perspective it is better that someone go to jail than a crime go unsolved. And if the guy who did it can’t be found, put a known scum bag behind bars.
    After all, he’s guilty of something.

    1. Your powers of self-persuasion are impressive.

      1. Don’t you mean Pocket Hulk?

        1. No.

    2. ah, the broadbrush anti-cop bigotry canards ensue.

      never fails.

      fwiw, one thing i love about the “current era” is that so many witnesses (i encourage this for chronic problems and it works) now present VIDEO evidence of crimes, since thye all have cell phone video cameras on them most of the time

      better than any witness testimony

      helps exonerate the innocent and convict the guilty

    3. oh, sarcasmic. still bitter about your perceived injustice (which was nothing of the sort) and venting your bigotry and prejudice from it as usual

      very sad. does it eat you up inside?

      fear may be the mind killer, but hate, especially unjustified hate you can never exorcise through revenge, is pretty fucking bad, too

      get over it

      1. Yes I’m still pissed about being forced to fix the car that hit me after running a red light and almost killing me, thanks to the officer not giving the guy a ticket and making no mention of the running of a light in the report. I believe it was intentional, and I believe he took great satisfaction from it.

        I still think you’re a pig fucker for being proud that you would give someone a ticket (after a long lecture I presume) for running a light when there’s nobody around, and not give them a ticket after they run a red light and almost kill someone.

        Cops are all the same. You would be an empty shell without the authority that comes with the badge. Not being able to command respect, not being able to instill fear, not being able to commit acts that if done by a citizen would be criminal.
        You would be nothing.

        1. Anyone who says cops are all the same isn’t paying attention. If you are always having the same experience with the cops, consider that you are the common factor in those experiences.

          1. Different jobs attract different kinds of people.
            Police work attracts people who like to force people to do things against their will.
            Control freaks.
            That’s the common thread.

            1. Every population has variation. Look at Lawyers. With most – no brains, balls, guts, heart or spine, with the head and ass being interchangeable – some actually defy this norm and buck the trend and demonstrate they have guts.

            2. not really. most cops realize that the job is primarily about interacting with people and trying , when necessary to get cooperation, to get it via verbal persuasion, etc.

              that’s why uses of force ARE so rare, as the stats show. a very small %age of police encounters, and a small %age of arrests.

              and the previous poster is right. many people really do create their own reality. and when you are a hammer, everything looks like a nail.

              but it’s much harder to step back, do a little self reflection and recognize that just maybe YOU are the problem. so, you won’t do that. you’ll continue to be a bitter, prejudiced, bigoted fool who does the same thing that racists do – broadbrush a group of people based on a PERCEIVED injustice, that based on what you told me – actually isn’t

              it’s really sad. get over it.

            3. sarcasmic, you are one seriously delusional puppy. Try to taper off on whatever it is that you’re using.

            4. I don’t like forcing people to do things against their will. I ask them nicely and 99% of the time that is all that is needed. The other 1% is made up of either asking a second time or telling with a firm voice. The extremely rare occurrence is having to make them. I don’t like doing that, in fact it’s one thing I dislike about the job. I became a police officer because I’m good at interacting with people and that’s what the job is about. I don’t sit behind a desk and interact with a computer all day like a lot of other jobs.

              1. well put.

                1. I was watching COPs last night for a little bit. I have a difficult time watching that show. It makes me physically ill.
                  Anyway, with two exceptions people were detained not for committing an act against another citizen, but for not showing sufficient respect to the officer.
                  It made me want to puke.
                  You guys think you’re fucking nobility or something. Off on this hero’s quest, putting the sword to anyone who gets in your way.
                  If someone doesn’t let you have the last word, looks away when you’re lecturing them, or shows any disrespect at all, the dick gets all hard and the power trip begins.
                  God I hate pigs.

                  1. “it makes me physically ill”

                    iow, your mental illness, and yes imnsho it has progressed to that point, is resulting in physical ailments

                    seriously man, get help

                  2. The lesson I take away from Cops is that if you’re white, sober and wearing a shirt you won’t get arrested.

    4. After all, he’s guilty of something.

      The big problem is that in the modern Welfar State, we’re all guilty of something…

  5. Why hasn’t Dunphy posted yet to tell us that it didn’t actually happen?

    1. He has a life?

    2. No, he’d tell us out it’s just a handful of outliers, while completely missing the point…

      1. no, i wouldn’t. because the article is correct. it’s a serious problem

        unlike the reason ignorati, i don’t deny the obviously correct.

        the article is spot on. one could quibble about some minor points, but in general, it’s exactly correct.

        it’s a serious problem

  6. Those guys really seem to know what they are talking about. Wow.

  7. The problem I have with eyewitness testimony is that I leave too many witnesses…

    1. This is why no legal system is better than the one we have. Better yet, let’s have competing systems! Yeah, individualist anarchy!

      1. the CSI effect has made witness testimony less “counted upon” and to some extent that’s a good thing.

        juries now often want to see DNA evidence on EVERYTHING. they’ve learned to expect it from teevee shows e.g. CSI (which is ridiculous in MANY cases), otoh they have come to realize that witness testimony needs to be taken with a big grain of salt , which si a good thing

        of course, the war on DV, where “no woman lies about domestic violence ” (lol) has worked in the opposite regards. again, imo it’s worse than the war on drugs for the average innocent joe, and in some cases, josephine

  8. I’ve heard of calls for all police interrogations with suspects to be videotaped (or, more likely these days, recorded and stored in an electronic format, etc).

    Maybe we should also require that for questioning witnesses and/or victims as well. A completely honest cop who isn’t intentionally pressuring a witness to identify a specific suspect might still accidentally push a witness towards a certain suspect with cues that they don’t realize they’re giving off.

    In the long run this might help police better work with witnesses, reduce the number of wrongful convictions, AND help to convict guilty parties.

    1. i note the article ONLY mentions “But their memories may be addled by shock, colored by a desire to punish the villain, or led astray by police suggestions.”

      doesn’t mention led astray by DEFENSE suggestions, of course

      that would be a bit unbiased. can’t have that.


    See last paragraph

    1. i heard the whole thing on the radio. i think it was on “the men’s room”


  10. i note the article ONLY mentions “But their memories may be addled by shock, colored by a desire to punish the villain, or led astray by police suggestions

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