Convicting based on eyewitness testimony alone

[CardiacCoug]

http://www.texasmonthly.com/2008-11-01/feature2.php

I happened upon this article and thought it was pretty fascinating. Each little vignette states the race of the victim and the wrongly convicted man, which I found interesting.

It's clear that many of these guys are total dirtbags even if they happen to be innocent of the specific crime for which they were convicted. Nonetheless, these stories also make it pretty clear to me that sending a man to prison for decades solely because he was picked out of a lineup doesn't make sense either. A couple of the guys were identified by victims who were "absolutely positive" -- until they were exonerated by DNA after decades in prison. The story of a guy named Anthony Robinson I found particularly compelling. The guy was a college graduate (USC) who later became a lawyer who just happened to be driving on the UH campus and wearing a plaid shirt when another black guy in a plaid shirt committed a rape. After a positive ID from the victim he goes to prison for ten years:

I was standing in the courtroom, and I was thinking, ‘There is something really seriously wrong with this. This is some kind of sick, twisted joke.’ I mean, you just don’t take people to court and say, ‘Oh, this person raped me’—you gotta have some kind of corroborating evidence. If there’s a rape, there’s gotta be some physical excretion, fingerprints, hairs. I told them, ‘Look, I’ll give you whatever you need. You want semen, you want saliva, you want hair, you want fingerprints? Whatever you want, I’ll give it to you.’ The real problem was, there was no reliance on the facts. I think what the prosecution basically decided was that we don’t need facts; we got a living victim here, and that’ll be persuasive for the jury. We got a cross-racial crime, a white victim and a black defendant.

Any lawyers have an opinion on this?

[ERCougar]

I'm not an attorney, so I'm just going to add to the questions. Eyewitness identification is notoriously unreliable from what I've heard. How much weight is this kind of evidence given in court?

To me, this is just one of the many reasons that I think the death penalty is such a bad idea. Besides the idea it reinforces that vengeance makes everything better, what happens when you make a mistake?

[All-American]

Likewise, not a lawyer.

It would be nice if we had DNA evidence to back up every accusation. For that matter, about thirty eyewitnesses to the crime would be nice too-- or even a confession would be nice. The problem is, what happens if the only evidence that you DO have regarding a crime is an eyewitness? Is it conceivable that the perpetrator cowed the victim to such an extent that she failed to report the crime until well after evidence could be extracted? Or could there be other reasons why other corroborating evidence doesn't exist? Even with no other evidence, could you really proclaim a man not guilty when the victim swears up and down that it was him? Could you let a potential rapist free even as the victim points her finger directly at him?

That eyewitnesses can be mistaken in their identification is indisputable, but the defense *should* then be able to put together a compelling argument as to why the word of the defendant is more reliable than that of the victim. I would like to know more about this line of study, though-- for example, I'd like to know in how many instances the accusation was confirmed as correct, and at what point the unreliability of eyewitness accusation exceeds its utility.

[UtahDan]

It immediately made me think of two model jury instructions from VA:

2.100 Reasonable Doubt and Presumption of Innocence

The defendant is presumed to be innocent. You should not assume the defendant is guilty because he has been indicted and is on trial. This presumption of innocence remains with the defendant throughout the trial and is enough to require you to find the defendant not guilty unless and until the Commonwealth proves each and every element of the offense beyond a reasonable doubt. This does not require proof beyond all possible doubt, nor is the Commonwealth required to disprove every conceivable circumstance of innocence. However, suspicion or probability of guilt is not enough for a conviction.

There is no burden on the defendant to produce any evidence.

A reasonable doubt is a doubt based on your sound judgment after a full and impartial consideration of all the evidence in the case.


2.400 Circumstantial Evidence

It is not necessary that each element of the offense be proved by direct evidence, for an element may also be proved by circumstantial evidence. You may convict the defendant on circumstantial evidence alone, or on circumstantial evidence combined with other evidence, if you believe from all the evidence that the defendant is guilty beyond a reasonable doubt.

When the Commonwealth relies upon circumstantial evidence, the circumstances proved must be consistent with guilt and inconsistent with innocence. It is not sufficient that the circumstances proved create a suspicion of guilt, however strong, or even a probability of guilt.

The evidence as a whole must exclude every reasonable theory of innocence.


I think the real problem often is that people don't adequately understand who has the burden of proof and that is the fault of poor defense lawyering. Every criminal jury should hear exactly the this argument: that human beings, including police, sometimes get it dead wrong and that examples of this abound. That there are people who sat in jail for a long time and had their lives ruined because jurors failed to act upon their reasonable doubts. The prosecution has every advantage in these cases, which is fine, but juries should hear about the fallibility of eye witness testimony and have that be part of what they consider.

[ERCougar]

It immediately made me think of two model jury instructions from VA:

2.100 Reasonable Doubt and Presumption of Innocence

The defendant is presumed to be innocent. You should not assume the defendant is guilty because he has been indicted and is on trial. This presumption of innocence remains with the defendant throughout the trial and is enough to require you to find the defendant not guilty unless and until the Commonwealth proves each and every element of the offense beyond a reasonable doubt. This does not require proof beyond all possible doubt, nor is the Commonwealth required to disprove every conceivable circumstance of innocence. However, suspicion or probability of guilt is not enough for a conviction.

There is no burden on the defendant to produce any evidence.

A reasonable doubt is a doubt based on your sound judgment after a full and impartial consideration of all the evidence in the case.


2.400 Circumstantial Evidence

It is not necessary that each element of the offense be proved by direct evidence, for an element may also be proved by circumstantial evidence. You may convict the defendant on circumstantial evidence alone, or on circumstantial evidence combined with other evidence, if you believe from all the evidence that the defendant is guilty beyond a reasonable doubt.

When the Commonwealth relies upon circumstantial evidence, the circumstances proved must be consistent with guilt and inconsistent with innocence. It is not sufficient that the circumstances proved create a suspicion of guilt, however strong, or even a probability of guilt.

The evidence as a whole must exclude every reasonable theory of innocence.


I think the real problem often is that people don't adequately understand who has the burden of proof and that is the fault of poor defense lawyering. Every criminal jury should hear exactly the this argument: that human beings, including police, sometimes get it dead wrong and that examples of this abound. That there are people who sat in jail for a long time and had their lives ruined because jurors failed to act upon their reasonable doubts. The prosecution has every advantage in these cases, which is fine, but juries should hear about the fallibility of eye witness testimony and have that be part of what they consider.

Makes sense...I guess it's up to the defense to point out the fallibility of eyewitness testimony.

So, to my other question (and partially a threadjack--sorry), what do you think of the appropriateness of the death penalty as a punishment, when you're relying on an effective defense to stop us from wrongfully killing someone? As I said before, this isn't my main problem with the death penalty, but I do think it should raise concerns.

[CardiacCoug]

Even with no other evidence, could you really proclaim a man not guilty when the victim swears up and down that it was him?

If the accused is well-known to the victim of a crime (as in date rape for example) then I think a victim's identification is credible and may be enough to convict. But when the crime involves a complete stranger, it seems like these identifications are much more problematic.

In the cases in the article it seems like the identification was being made in lineups or from photographs and obvious differences (in facial hair, for example) were ignored.

Another observation that is politically incorrect is that a lot of people are very poor at identifying and recognizing people of different races. I'm not sure if that fact is supported by studies or not, but if so, that should cast even more doubt on this type of evidence.

[ERCougar]

Another observation that is politically incorrect is that a lot of people are very poor at identifying and recognizing people of different races. I'm not sure if that fact is supported by studies or not, but if so, that should cast even more doubt on this type of evidence.

I think this is a huge issue, possibly the most important. There must be studies out there to support this. I fully admit that I have more trouble distinguishing members from other races than I do Caucasians.

[CardiacCoug]

To me, this is just one of the many reasons that I think the death penalty is such a bad idea. Besides the idea it reinforces that vengeance makes everything better, what happens when you make a mistake?

I've always been a supporter of the death penalty, but reading about all of those wrongful convictions (even though I recognize it's a very small percentage of total convictions) makes me reconsider, especially in cases like these where the evidence seems like it was so weak.

I admit that I don't have that much sympathy for the scumbags with multiple other criminal convictions. But in the article I linked there is the story of the Cambodian guy whose girlfriend was killed as well as the USC grad I referenced already -- these guys were completely upstanding citizens with no other criminal record. For guys like them to go to prison or worse get the death penalty based on false testimony is especially disconcerting.

[il Padrino Ute]

It would be nice if we had DNA evidence to back up every accusation.

Do we have any idea what % of rape trials are those without DNA evidence? I can't think of any instances where there would be none.

[il Padrino Ute]

I've always been a supporter of the death penalty, but reading about all of those wrongful convictions (even though I recognize it's a very small percentage of total convictions) makes me reconsider, especially in cases like these where the evidence seems like it was so weak.

I admit that I don't have that much sympathy for the scumbags with multiple other criminal convictions. But in the article I linked there is the story of the Cambodian guy whose girlfriend was killed as well as the USC grad I referenced already -- these guys were completely upstanding citizens with no other criminal record. For guys like them to go to prison or worse get the death penalty based on false testimony is especially disconcerting.

I have also alway been a supporter of the death penalty, but I believe that it should only be applied when there is no doubt about the guilt of the accused. And if there is no doubt, carry out the penalty within a week.

[All-American]

Do we have any idea what % of rape trials are those without DNA evidence? I can't think of any instances where there would be none.

Girl is threatened with death should she mention the incedent. She doesn't say anything for three months. Not much evidence in that case.

[il Padrino Ute]

Girl is threatened with death should she mention the incedent. She doesn't say anything for three months. Not much evidence in that case.

Ok, I can see something like that happening.

It's a shame that there are cowards who do that.