Police

SCOTUS Rulings Highlight Problems With Eyewitnesses

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This week the Supreme Court decided two cases that highlight the risks of relying on eyewitness testimony to convict people of crimes. On Tuesday the Court overturned the conviction of Juan Smith, who was charged with killing five people during an armed robbery of a New Orleans home in 1995. The only evidence connecting him to the crime was the testimony of Larry Boatner, who was visting the house at the time of the robbery. During the trial Boatner identified Smith as the first gunman to push his way into the house, saying he looked him in the face immediately afterward. As part of the appeals process, Smith's lawyers obtained police records that contradicted Boatner's testimony. According to notes taken by the lead investigator on the night of the murders, Boatner "could not…supply a description of the perpetrators other then [sic] they were black males." Five days after the robbery, the same detective noted, Boatner said he "could not ID anyone because [he] couldn't see faces" and "would not know them if [he] saw them." In a typewritten report, the detective said Boatner "could not identify any of the perpetrators of the murder." Under the 1969 decision Brady v. Maryland, the Supreme Court ruled in an opinion by Chief Justice John Roberts, Smith had a due process right to those records because they were favorable to the defense and there was a "reasonable probability" that they would have changed the outcome. The sole dissenter, Justice Clarence Thomas, conceded that the conflicting statements could have been used to impeach Boatner's testimony but argued that they would not have led to an acquittal. "When weighed against the substantial evidence that Boatner had opportunities to view the first perpetrator, offered consistent descriptions of him on multiple occasions, and even identified him as Smith" out of a photo array, Thomas wrote, "the undisclosed statements do not warrant a new trial."

The other case dealing with eyewitness testimony also produced an 8-to-1 decision, this time against the defendant. Barion Perry was arrested in 2008 for breaking into cars at a Nashua, New Hampshire, apartment building in the middle of the night after a tenant identified him as the perpetrator while looking out a fourth-floor window at the parking lot. At that point Perry was the only black man in the area, and he was standing next to a police officer. Perry argued that the judge should not have allowed the jury to hear this eyewitness testimony because it was tainted by impermissible suggestion. He cited Supreme Court rulings saying eyewitness testimony should be excluded when it is the product of unnecessarily suggestive procedures that create a "substantial likelihood of misidentification." The Court, in a majority opinion by Justice Ruth Bader Ginsburg, rejected Perry's analogy, noting that the circumstances of his arrest were not deliberately arranged by police, so a rule excluding such evidence would not deter improper procedures. Generally speaking, the Court said, the remedy for inaccurate eyewitness testimony, like the remedy for other kinds of potentially unreliable evidence, is convincing the jury that it should be discounted.

That seems reasonable to me, as long as defense attorneys have the means and opportunity to present expert testimony about the perils of eyewitness testimony. I think there remains a substantial gap between public perceptions and scientific research on the question of how much trust to put into someone's confident in-court identification of a defendant. Even when the witness is completely sincere, there are so many ways in which memories can be biased or manufactured, whether intentionally or unintentionally, that such testimony probably should never be enough by itself to convict someone. The research suggests eyewitness identifications are wrong about a third of the time.

In Perry's case, there was other evidence: When a police officer arrived at the parking lot, she heard what "sounded like a metal bat hitting the ground." Then she saw Perry standing between two cars, a metal bat on the ground behind him. He was holding two car-stereo amplifiers, which he claimed to have found on the ground. But in Smith's case, there was no physical evidence and no witness testimony except Boatner's. It seems to me the contradictory statements withheld by the Orleans Parish District Attorney's Office would have created plenty of reasonable doubt. Yet Clarence Thomas disagrees, and I worry that a lot of jurors may likewise be unreasonably impressed by eyewitness testimony.

In a column last August, I explained how fallible memories send innocent people to prison. In November I noted that the Smith case is part of a pattern of Brady violations in Orleans Parish.

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  1. Sullum alt text #WIN!

    1. Also: FST! i! s! R! one!!

    2. Full on win for Sullum.

  2. One witness is not enough to convict a man accused of any crime or offense he may have committed. A matter must be established by the testimony of two or three witnesses. — Deuteronomy 19:15, NIV

    1. KEEP YOUR THEOCRACY IN CHURCH!!!

    2. RICK SANITARIUM LOVER!

    3. Qur’an (24:13) – “Why did they not bring four witnesses of it? But as they have not brought witnesses they are liars before Allah.”

      1. How many witnesses did Muhammad provide for his book? Always amusing seeing how many of his own rules that he broke (see 4 wives limit). Same with John dumb dumb dumb dumb dumb Smith.

        1. That’s Joseph Dumb Dumb Dumb Dumb Dumb Smith.

          1. I guess I’m the dumb dumb dumb dumb dumb one today.

  3. I think there remains a substantial gap between public perceptions and scientific research on the question of how much trust to put into someone’s confident in-court identification of a defendant…… such testimony probably should never be enough by itself to convict someone.”

    ^^this^^

    Did a ton of research in this area in college and after. Your best bet re: eyewitnesses is “trust none of them. Counterintuitive, sad, but the research and evidence is far too overwhelming to ever trust only eyewitness testimony – particularly when there is only one witness.

  4. You mean the prosecution didn’t share those police records during the trial?

    I’m shocked! Shocked I tell you!

    1. withholding exculpatory evidence from the defense is clear prosecutorial misconduct subject to state bar discipline including possible license suspension or disbarrment.

      1. I’ll believe it when I see it enforced.

  5. There are black people in New Hampshire? Who knew?

    1. Beat me to it. Damn you! Damn you to hell!

    2. Sure there are. I must know like 3.

    3. Our own commenter Heroic Mulatto lives in Manchester, I’m pretty sure.

      And I knew one black guy who was a part-time resident of Nelson.

      He was probably the first ever, though.

  6. I am dissapoint in Thomas. He also disappointed mightily in Safford United School District v. Redding.

  7. The sole dissenter, Justice Clarence Thomas, conceded that the conflicting statements could have been used to impeach Boatner’s testimony but argued that they would not have led to an acquittal.

    WTF, Clarence? You don’t think multiple records showing that the key witness’s testimony was at best unreliable, and very likely perjury, wouldn’t/shouldn’t have created reasonable doubt?

    1. He never misses a chance to keep the brother down.

      Really though, watching 10 seasons of Law and Order has taught me that the police are always diligently working for our best interests, the DA is a great guy, and sincere eye witnesses are always right. Who are you going to believe: the liberal LAMEstream media, or a great fucking TV show?

      1. Yes it is.

        1. Also, he is a racist.

        2. Resurrection baby !

      2. Everybody is guilty which is why I beat the shit out of them.

        That and my small penis makes me sad.

    2. Thomas is easily the most confounding SCOTUS judge.

      His defense of individual rights in cases like Raich or Heller are outstanding, but then he goes and does this shit.

      I don’t get it.

      1. Here is my theory on Thomas. He was a poor black guy who literally was the only black person in his high school in Georgia in the early 1970s. I think for that reason he tends to side with authorities on law and order issues. If it hadn’t been for really strong authorities the mob probably would have killed him back in the day.

        So if it is a question of cops or administrators he tends to side on giving them more power. If it is a question of individual rights, he sides with the individuals.

        1. Sounds about right. It would explain his vigorous defense of Heller too.

  8. As someone who was an eyewitness to an attempted murder — of me — and who correctly ID’ed the guy before other evidence was found confirming my identification was correct, it seems to me that general propositions about potentially flawed eyewitness testimony aren’t necessarily probative regarding any particular witness.

    1. I’m going to go on record as saying that I know, for a fact, without having any other knowledge about your case than what you just provided, that your eye witness testimony was flawed, that you put an innocent man in prison, and somewhere the person who really tried to murder you is laughing and enjoying his ill-gotten gains.

    2. Cool. So each time an eye witness is to testify, without other evidence confirming the id, we can tell the reliable ones from the unreliable ones by……wait, huh?

      1. So we presume unreliability? Wait, huh?

    3. Anecdotal evidence aside…care to give us the story?

      1. Reader’s Digest version:

        Guy broke in to my girlfriend’s apartment while I was spending the night to get an early start on helping her move the next morning. Phone had been shut off for the move. Pre-cell phone.

        He stabbed her in the heart. We fought, he sliced me in the liver. We fought some more. He ran.

        While covered from the abdomen down in blood, stlylin’ in nothing but underwear, got the poor bastard cashier at the convenience store across the street to call 911. I sat outside and watch him mopping up the blood while I waited for the ambulance. Like I said, poor bastard.

        Gave the cops a description on the way to the hospital and before surgery. Turns out during our fight his wallet, with drivers license, had fallen out at the scene. And he told his girlfriend “I just killed two white people over at the apartments.”

        One of the beauty parts was that at the trial his attorney asked me, “You’re 6’9″, right? Do you ever intimidate people so that they might need to defend themselves?” I answered, “Not unless they’re breaking into an apartment and trying to kill people.” “No further questions, Your Honor.”

    4. Well, if eyewitnesses are wrong 2/3 of the time, they are right 1/3 of the time. Which is a good batting average.
      The trick is figuring out which is which.

      1. Actually they’re wrong about 1/3 of the time according to the cite in the post.

        1. Right. I think the point still stands. 1 in 3 being wrong is pretty good grounds for reasonable doubt.

          1. If you’re talking about a random witness to a random event. There are ways of testing how reliable a witness’ testimony is.

          2. As NEF posted:

            and who correctly ID’ed the guy before other evidence was found confirming my identification was correct

            The takeaway here is that they found other evidence backing up NEM’s identification.

            The trouble starts when all you have is the identification.

            1. Yeah, but I was right even without the further evidence.

    5. Sometimes witnesses do get it right. The point is that they don’t always get it right. And absent other evidence confirming their description, one man’s word alone probably doesn’t reach the level of beyond a reasonable doubt.

    6. I was held up at gunpoint but ID’d the wrong guy. Long story short – the Philadelphia police are a bunch of assholes. But you knew that already.

      1. Did they microaggress against you and make you feel othered?

        1. philly cops? not micro, but marco-agression.

    7. Story time, then?

  9. Hey now. I am fat. I am Italian. I am from New York. And I am a Supreme Court Justice. And don’t forget I went to better schools than use people.

    So don’t you worry your little libertarian heads in the least. The professionals are on this. Our police are too professional to ever be swayed by faulty eye witness testimony.

    Now if you will excuse me, I have to get to Mass.

    1. i feel mass-othered

  10. So, a question for the lawyers. Is there any real definition of “reasonable doubt”?

    It seems to me that in any case where the only evidence is eye witness testimony, there will always be reasonable doubt. I think it is always reasonable for an impartial juror to think that a person might be lying or mistaken about what they saw, no matter what.

    1. I will give you my definition of reasonable doubt. This is how I explained it to jurors. “Reasonable doubt” means that given the known facts in the case is there any plausible explanation for those facts other than the accused being guilty. If so, then there is reasonable doubt.

      1. I like that definition. And under that definition, I don’t think I could ever convict someone based on a single eyewitness. It is always plausible that someone is lying.

        1. Without circumstantial evidence, say the accused admitting to being near the scene, having no alibi or such, yes.

  11. such testimony probably should never be enough by itself to convict someone.

    That’s going too far. There are ways of separating reliable eyewitness testimony from unreliable (lineups are one technique, and there are many others).

    Yes, yes, better that ten guilty men go free blah blah blah. We should make sure the errors skew toward letting people go free, but we should also strive to not make errors at all.

    1. Well, I still think that it is always reasonable to think that a witness might be lying. If I’m on the jury, there needs to be some other evidence.

  12. I sat in court and watched a man get convicted on a charge that carried up to 10 years ( he was a 70 y/o diabetic) with no eye witness, no evidence of any kind whatsoever. The prosecutions case rested on the accuser’ s insistence that ” I know he did it! I know it was him!”

    1. Actually there was one eye witness. His testimony amounted to ” yeah I saw him on the bridge. He threw something over. I thought it was a coke can, but I couldnt really tell what it was.”

      1. What was the crime?

        1. Briefly;

          Land owner finds a dog collar hanging on his gate. The dog collar has some blood and a transmitter on it. Land owner has a history of complaining about hunters running dogs on his property. Said hunters have several times burned many square miles of woods and at least one building i n retaliation against timber companies and private owners who will not let them run dogs.

          Land owner thinks ” oh shit, I better remove this collar to another location” . He drives a mile away and tosses the collar off of a bridge into a creek. Someone sees him do it. Before he can drive back to his property hunters come along and see him, stop him, and accuse him. He is the only one around, they cant find their dog, so he must have shot it. Sheriff is called, land owner is arrested.

          Land owner is an old man with no family, but a friend of mine so he calls me to get him out of jail. Arriving at the jail I ask the jailer if I they have his gun. Yep, they do. Can I see it? Sure its oveer there…..

          In an office with an open door, in full view of the trustees is his 1911 colt laying on a desk. The spare mags and the mag out of the gun are laying there, and one single round from the chamber is standing next to the gun. I check the mags, they are all full. I think, ” no sweat, they cant get him on this.”

          Foolish me.

          1. I should mention, though I am sure it has no bearing on the case;

            Twenty years ago the judge in this case got himself elected the first time by spending a million bucks of his own money on his campaign. Before he could be seated, the accused landowner spearheaded the “merit selection of judges” movement in LA. It nearly succeeded.
            I could make a long list of mistakes landowner made to get himself a conviction, but the first was accepting a bench trial with that judge. What was he thinking? I have no idea.

            1. Did he have a defense attorney?

              1. Mistake #2. He is too clever for that, and besides, all lawyers feed each other and cant be trusted.

            2. Holy shit. That is like out of a novel. Did they ever find the dead dog? I can see getting convicted of murder without a body. But a dog?

              1. No, they never found the dog. I am not convinced that there even was one. I know the prosecution played it up in court that the dog was worth $10,000 bucks and had breeders testify to that effect. The whole thing was a farce.

                1. I am pretty sure the whole thing was a set up, revenge for landowner refusing to let hunters run dogs. He has the best hunting property as it is mostly native trees and everything around there for miles has been planted monoculture. He also has a large creek…making it primo hunting property. Most of the game in the surrounding area essentially comes from his property. his revenge was to cut the whole acreage and replant in monoculture. He took the money from the timber, and last I heard was in costa rica.

                  Nice footnote;
                  he sent a postcard to his accuser with a picture of himself on a beach in costa rica with 3 or 4 chics in bikinis. The accuser is a super duper hill billy redneck with no money. The post card said ” Here is what I am doing now. What have you been up to?”

                  1. Nice. The best revenge against people like that is to live a happy life. Good for him.

                  2. Well, he served that dish cold.

                    Ice cold.

                    Well played, cranky old landowner dude.

              2. Hey, in Louisiana dogs are sacred. I feel that way myself. If you deliberately deprive someone of their dog, permanently, you can get ten years.

                1. I kind of think dogs are sacred too. But so is private property. Sacred or not keep you damned dogs off my property.

                  And as the grandson of rural landowners, I fucking hate hunters.

                  1. Agreed. I have 600 or so acres of prime hunting land. I have lots of trouble with same hunters as he did. Private property is sacred. Mine, and yours. I hunt, but I would never dream of trespassing on someone else’s property.

                    The problem is that as recently as my own childhood, there was so much wild land and so few people, that you could essentially hunt anywhere you wanted and not bother anyone. Those days are gone, but the habits remain.

                    1. The worst out where I am from are the great white hunters from the city. They all charge out every fall leaving gates open, trespassing, harassing cattle and such.

                  2. Agreed. I have 600 or so acres of prime hunting land. I have lots of trouble with same hunters as he did. Private property is sacred. Mine, and yours. I hunt, but I would never dream of trespassing on someone else’s property.

                    The problem is that as recently as my own childhood, there was so much wild land and so few people, that you could essentially hunt anywhere you wanted and not bother anyone. Those days are gone, but the habits remain.

    2. Did the prosecutor get lynched by an angry mob of justice-seeking decent people, or is his sorry as still employed?

      1. *ass

      2. By an angry mob of who? It was in Catahoula parish.

        1. “Catahoula parish”

          Great hounds.

    3. The problem with a jury of ones peers is that, in modern America, our peers are utterly convinced that everyone has done something wrong, and the the accused wouldn’t be on trial if he wasn’t guilty. I blame this on all those shows like Law and Order and NCIS which show the cops as all but infallable.

      Essentially the “guilt or innocence” phase is now the police investigation, not the trial (which obvious notable exceptions).

      1. I don’t know about that. My criminal defense attorney friends get acquittals. Most of the time their clients are convicted. But that is because most of the time their clients are guilty.

        1. I deal with real estate law, not criminal, so I don’t really have first-hand experience. I was basing that comment on the last stats I saw for federal convictions v. aquittals, which is massively one-sided in favor of convictions.

          1. The feds won’t take a case to trial unless they’re convinced they’ll win. Plea bargaining is the order of the day with them.

          2. My experience is that most guys are guilty of something but usually not all the government thinks they are guilty of. Most criminals are stupid and are caught damn near red handed. It takes real police work to catch a smart criminal or frame an innocent man. And that is beyond most cops.

            I would say the innocent people who go to jail go because they are in the wrong place at the wrong time. Your meth head boyfriend is making the shit in the basement and one day the cops show up. No one is going to believe that you were not involved. That kind of thing.

            1. Some years ago I saw a chart showing the average policeman’s IQ at around 90 and the average criminals at around 85. A reporter was asking a lawyer outside a courthouse about it.
              ” Does this mean that criminals are stupid?”
              The lawyer answered ” No. that is not what it means at all. ” Then he turned around and walked away. I laughed so hard I nearly peed myself.

      2. i’ve never watched any NCIS-type shows since lab techs dont conduct homicide investigations. maybe on the starship atlantis, or on deep space nine, or on 7 of 9.

        1. I know from watching CIS, not only do lab techs conduct homicide investigations they are regularly involved in shoot outs with rich white men who would have gotten away with it if it wasn’t for those meddling kids and their magic “science”.

    4. I served on jury. People are biased, emotional, irrational creatures, especially when it comes to making decisions for or about other people.

      The way to make the justice system actually “just” is to actually make all actors in it accountable. Not the kind of immunity we have now. If you get it wrong, if you accidentally (or worse, willfully) ruin someone’s life, you–the prosecutor AND the jurors, and perhaps the judge–should be responsible for it.

      It’s the free market principles applied. Of course, this would require making jury duty voluntary.

      This also solves the eyewitness issue. Everyone involved has a stake in deciding who to trust.

      1. Then no one would ever serve on a jury. Why would you assume that kind of liability for free?

      2. I know my 18 year old self thinks differently than my 34 year old self. Oddly enough, my 34 year old self is less likely to convict anyone than my young self who did believe the police and prosecutors were not malicious and aiming for victory at all costs. I’m less trusting of them now.

  13. “Even when the witness is completely sincere, there are so many ways in which memories can be biased or manufactured, whether intentionally or unintentionally, that such testimony probably should never be enough by itself to convict someone. The research suggests eyewitness identifications are wrong about a third of the time.”

    I disagree with the first part. I witnessed an armed robbery up close.

    I had seen the two teens twice before and both times they clearly were casing potential victims. The first cased individual was my neighbor as he walked along the otherside of the street. They saw me and aborted their efforts.

    The second time was me at the bus stop. One kid came within a foot of me, but there were three other people at the stop and I know how to project strength in the ghetto, so they headed down the street about 140 feet and held up woman using a gun and an approach technique just like the one they initiated, but aborted, in my first example. There is no way in the world I would not have been able to identify them.

    Which places me in the two thirds grop that get it right. I would contend that my eyewitness identification on its own would be sufficient to convict.

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