Your Lying Eyes

How fallible memories send innocent people to prison


In 1986 Tim Cole, a student at Texas Tech University in Lubbock, was sentenced to 25 years in prison for a rape he did not commit. He was exonerated in 2009, a decade after he died behind bars from a severe asthma attack at the age of 39.

Like three-quarters of the defendants who are cleared by DNA evidence, Cole was convicted based on sincere yet inaccurate eyewitness testimony—a problem the New Jersey Supreme Court highlighted last week when it revised the state's rules for pretrial hearings and jury instructions based on three decades of research exposing the fallibility of human memory. That decision, together with a case the U.S. Supreme Court will hear this fall, reminds us that the most powerful testimony jurors hear may also be the weakest, subject to hidden influences that can send an innocent man to prison if they remain unexposed.

"Memory does not function like a videotape, accurately and thoroughly capturing and reproducing a person, scene or event," writes Geoffrey Gaulkin, the former judge who prepared a report on the science of eyewitness testimony for the New Jersey Supreme Court. "Memory is, rather, a constructive, dynamic and selective process" that includes three stages: acquisition, retention, and retrieval. "At each of those stages," Gaulkin notes, "the information ultimately offered as 'memory' can be distorted, contaminated and even falsely imagined."

Tim Cole's wrongful conviction involved several of the memory-corrupting factors cited by Gaulkin. Cole's accuser, Michele Mallin (who later supported his posthumous exoneration), was held at knifepoint while she was raped, and the presence of a weapon can distract a victim's attention from facial features. High stress also impairs an eyewitness's ability to encode details.

Police claimed Cole resembled a composite picture they produced based on Mallin's description. "The broad consensus within the scientific community is that composites produce poor results," writes Gaulkin, "because people recognize others holistically, not feature-by-feature in the manner composites are constructed."

Mallin is white while Cole was black, and cross-racial identifications are substantially less reliable than intra-racial identifications. Police presented Mallin with a photo lineup in which Cole's picture stood out because it was the only Polaroid and Cole was the only man looking directly at the camera. The detective who oversaw the lineup was conducting the investigation and may have unconsciously steered Mallin toward Cole, his only suspect.

Mallin was not told that her attacker might not be in the lineup or that she did not have to choose anyone if she was unsure. The photos were presented simultaneously instead of sequentially, encouraging "relative judgment"—the tendency to pick the person who most resembles a perpetrator. Instead of recording the doubts Mallin expressed, police made notes that suggested she chose Cole without hesitation.

The following day the police did a live lineup in which Mallin picked Cole again, reinforcing her initial misidentification. By the time of Cole's trial five months later, she confidently and convincingly identified him as her attacker, which was the only real evidence against him.

Gaulkin observes that courtroom identifications, for all their drama and emotional impact, merely recapitulate whatever errors led to an initial misidentification, hardened by feedback from police and prosecutors. He also notes that memory decays irreparably over time: According to a 2008 meta-analysis of 53 studies, memory quality falls by 50 percent after one month.

Due to these and other factors, eyewitness testimony is wrong about one-third of the time, judging from laboratory experiments, field studies, and analyses of real cases. Almost all of the relevant evidence has emerged since the U.S. Supreme Court last addressed the due process implications of eyewitness testimony in 1977.

In November the Court will revisit the subject, considering whether eyewitness testimony can be suppressed when it is biased by factors other than "improper state action." However the justices rule, jurors in most cases will still have to decide not only whether eyewitnesses are honest but also whether they are telling the truth.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2011 by Creators Syndicate Inc.

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  1. It’s ridiculous that someone can be convicted based solely on eye-witness testimony from a single person. At that point it’s his word versus her word. Any jury that puts someone in prison under these conditions, with no other significant evidence, deserves to rot in the same kind of hell.

    I know some people are going to say that the jury was probably led to its decision by an over-zealous prosecution, but people can think for themselves. Whether they choose to use their heads is ultimately up to them.

    1. Any jury that puts someone in prison under these conditions, with no other significant evidence, deserves to rot in the same kind of hell.

      How about the prosecutors (overzealous or regular zealous) who bring charges based on nothing? You really want to put a check in place, take away civil immunity for prosecutors and police. There must be real consequences for doing a poor job, especially when a poor job means the guilty go unpunished and the innocent get locked up.

      1. Agreed. Might we also reform the jury selection process? I’d love to see someone like Sullum talk about how much freedom the attourneys have to strike individuals from juries. I get a feeling that this power is abused, but I have no data to back that feeling up…

  2. The detective who oversaw the lineup was conducting the investigation and may have unconsciously steered Mallin toward Cole, his only suspect.

    More likely “This is him. You know it was him, don’t you? Take another look. This is your guy. Let’s get this guy off the street before he hurts someone else.”
    Can’t let a crime go unsolved when there’s an opportunity to get a known scum bag off the street. So what if he isn’t the guy?
    He’s guilty of something.

    1. May Have? What bull shit. Yeah, let’s trash the detective who was trying to do his job.
      You people hate the cops so much you trash them regularly. Next time you need a cop, call that moron Sullum. Maybe he can help you….. assholes.

      1. “Next time you need a cop”…

        Hahahahahaaaaa… Good one, John.


        1. I will never NEED a cop. 8+1 .45 ACP hollow points can handle any trouble I may come across. (unless theres 10 of ’em)

      2. Yeah, let’s trash the detective who was trying to do his job.

        If I thought his job was to find the guilty party and put them in jail then I wouldn’t trash him. But that’s not his job. His job is to put someone in jail.
        He is rewarded when someone is convicted, and immune if the wrong person is convicted. This gives him an incentive to put any scum bag in jail if the real perp can’t be found.
        And why not? The dirt bag is guilty of something.

    2. A “known” scumbag? In this case, I thought the second victim (Cole) was a rather upstanding college student with no criminal history.

      Also, these days, everyone is guilty of something.

      1. Didn’t you read the article. Cole was black. In Texas, that means he must be guilty of something.

  3. Our adversarial justice system works on evidence presented and rebutted. This work is done by humans. And judged by humans. It’s the best we have. There is no infallible, omniscient referee. Yeah, it’s too bad that DNA identification hadn’t been invented in 1927. I’m sure a few innocent men went to jail. Eyewitness testimony is but one tool that both prosecutors and defenders utilize. And the jury’s decision is not the final word. It’s just the beginning of the process. That’s how seriously we Americans take the concept of justice.

    Short of abolishing law enforcement and jury trials for want of irrefutable evidence (and who, exactly, would be the judge of that, since humans are not infallible?) defendants are at the mercy of their fellow citizens’ sense of honor and justice. Libertarians want perfection in the justice system. As long as humans are involved in the process, perfection is not possible. Wishing for it anyway is pointless and neurotic.

    1. I don’t think anyone here is asking for perfection. What I want (and I’m the final arbiter of libertarianism as far as I’m concerned) is for the system that disincentivises prosecutors from raising doubts about their own case, sharing exculpatory evidence with the defense or otherwise taking actions that would lead to fewer convictions of innocents to be changed. It starts with limiting prosecutorial immunity. That won’t lead to perfection, but it will lead to many fewer cases of malfeasance.

      1. ed doesn’t care what you have to say.
        He’s too busy arguing with a straw man.

      2. The law already requires that the prosecution share any exculpatory evidence with the defense. There is no logical or moral basis for expecting the prosecution to raise “doubts about their own case.”

        1. Yes, but when they don’t, there usually aren’t consequences for the prosecutor. The defendant may be granted a new trial, but the prosecutor will continue on practicing, or will be appointed a judge. I agree, get rid of immunity yesterday.

  4. I once had a cop knock on my apartment door, and after I opened it, he asked “Could you step outside for a minute, sir?” I stepped out, and the woman who lived next door was standing there looking at me, and all the cop said was, “Is this him?” It was like my head exploded with what would happen next if she said yes – arrest, jail, and then what if she had been raped? Interrogation, a trial, years in jail, my life ruined? I’ve never had a gun held on me, but I bet it feels similar, knowing that somebody holds your life in their hands and can destroy it with the tiniest action. I kept my face calm, but in my head I was screaming “You better not say yes, you better not fucking say yes!”

    Luckily after about 10 seconds (which felt more like 10 minutes) she said, no, she didn’t think it was me. After that the cop visibly relaxed, and told me that some guy had broken into her apartment, she had surprised him coming home, and he had jumped out the window in the back, and asked if I had seen anything, and so on. So it ended well but HOLY SHIT that was one of the scariest moments of my life.

    1. See, Fatty. It was a good idea to put that stocking over your head after all, wasn’t it?

    2. I had a similar incident. While walking at night I suddenly became a suspect in a convenience store robbery. Interesting experience.

      she said, no, she didn’t think it was me.
      Fortunately the cop didn’t say “Don’t be hasty. Are you absolutely sure? Take another careful look.”

      I’ve never had a gun held on me, but I bet it feels similar
      Oh, it’s wonderful. “An armed society is a polite society.”

      1. Fortunately the cop didn’t say “Don’t be hasty. Are you absolutely sure? Take another careful look.”

        The power of suggestion. Cops use it a lot.

  5. The real question is: will police testimony, often eyewitness testimony in its own right, continue to be treated as infallible even in the absence of corroborating evidence?

    1. In matters of observation — not just firearms — the police are trained professionals.

  6. I wonder how many page clicks are generated by people reloading to see if the Morning Links are up yet.

  7. I learned a new word the other day=

    …which technically means when you ‘remember’ something but think at the time that its a completely new thought (i.e. mistake ‘memory’ for inspiration)…

    …but I think the term can also sometimes cover False Testimony-type incidents – particularly when, say, you think you witnessed an incident happen in a certain way, but then later realize that what you’d described was actually something you’d seen on TV, and confused the two…

    Anyway; cool word

  8. Mallin is white while Cole was black

    That’s how it is when it comes to rape. He obviously wasn’t loved either. Seriously, who names their black kid Cole?!

  9. A big part of the problem is lack of penalties for false accusations. The system is bogged down with countless false accusations, which does not leave enough resources to properly investigate real crime. False accusers know that there is virtually no chance that they will serve hard time, so they accuse with impunity.

    When a real crime such as this one comes along, the system does not have the resources to find the right culprit. The real rapist went free, an innocent man died in prison, and who knows how many victims the real rapist may have subsequently claimed.

    Reduce the number of false accusations by prosecuting false accusers, and there will be more resources available to protect citizens from violent offenders.

    1. Unless, of course, OJ’s jury is in the pool.

  10. memory quality falls by 50 percent after one month

    And after a few years, libertarians propertarians forgets the genocide of a people to establish the big-government entitlement program of privation property rights.

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