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You can't believe your eyes when the innocent are jailed
© St. Petersburg Times, published December 24, 2000 There's a classic joke in which a man who is caught in the act of cheating on his wife defends himself by saying: "Who are you going to believe, me or your lying eyes?" The line is funny because it's so absurd. People know what they see; our eyes don't lie, right? Well, it turns out they do. Ask professionals in the criminal justice system and they'll tell you how imperfect eyewitness accounts often are. Our brain typically does not store images with camera-like precision, especially at a moment of great stress, such as when we're staring down the barrel of a gun. The sad truth is that the very evidence a jury is likely to find most convincing -- a victim pointing across the courtroom at the defendant and saying "He did it, I'd never forget that face" -- is frequently unreliable and prone to error. Recent exonerations due to DNA evidence drive that point home. According to the Innocence Project at Cardozo Law School, of the 78 men whose convictions were overturned after DNA testing proved their innocence, 66 were found guilty because of faulty eyewitness statements. Rob Warden, director of the Center on Wrongful Convictions at Northwestern University School of Law, says "these kinds of mistakes are ubiquitous," and they're particularly acute along racial lines. "A white person or a Hispanic person is more likely to make a mistake in identification if the perpetrator of the crime happens to be black," Warden says. He adds that a witness' degree of certainty has little correlation to reliability. Just imagine being in the shoes of William Gregory. Two women swore he had attacked and raped them. After he had served eight years of a 70-year sentence, DNA evidence exonerated him. Despite the victims' certainty, they had implicated the wrong guy. Experts say memory works differently than we might envision. Rather than storing experiences and observations like a video camera, the mind cherry-picks sensory perceptions to store. According to Elizabeth Loftus, a psychologist at the University of Washington, "memory is constructive" and can be influenced by, "talking to other people, being asked leading questions, from media coverage," and it is particularly maleable over time. Researchers have found that our recollections are highly susceptible to suggestion. In a study conducted by Gary Wells and Amy Bradfield at Iowa State University, subjects were shown a surveillance video of a man who, they were told, shot a security guard. The subjects were then asked to pick the perpetrator out of five mug shots. Every person picked a man he or she thought was the perpetrator, even though the real guy wasn't in any of the mug shots. The subjects' confidence in whom they chose increased if they were given positive reinforcement. But if they were told they picked the wrong guy, the subjects started to doubt their choice. This can translate into real-life mistakes when police give positive or negative signals to witnesses after they pick someone out of a lineup. So what can be done? Obviously, eyewitness testimony is an important component of criminal trials. But defense lawyers should have some opportunity to counter the widespread impression that eyewitness accounts are infallible. Experts on the vagaries of memory should be allowed to testify as a caution, especially when an entire prosecution is built on a single eyewitness. As yet, judges have not been terribly open to this idea and prosecutors hate it, but with DNA evidence exonerating more and more inmates whom eyewitnesses have put away, there will be increasing pressure to fix the system. Just as important, police and prosecutors have to conduct their investigations more responsibly. A research report issued last year by the Department of Justice acknowledged that the way witnesses are handled can influence the accuracy of their memories. The report suggests numerous procedures to keep an investigation as neutral as possible. But that presumes police and prosecutors will act in good faith and are more interested in getting at the truth than in proving the guy they think did it, did it. Unfortunately, that's not always the case. In a tragic Florida case, death-row inmate Frank Lee Smith recently died of cancer in a prison hospital bed. No physical evidence linked him to the 1985 rape and murder of an 8-year-old child of which he was convicted. He was found guilty largely on the word of an eyewitness who, four years after the crime, recanted, saying she had been pressured by police to testify against Smith. Despite this, prosecutors vigorously defended the conviction and refused Smith when he asked for a DNA test. It was only after his death that a DNA test exonerated him. As Laurie Levenson, professor of law at Loyola Law School points out: "prosecutors sometimes want to win too hard." With 2-million people incarcerated in this country, no one knows how many were wrongly convicted on the basis of an eyewitness, but estimates run as high as 8,000-to-10,000 per year. Numbers like this suggest more than a marginal problem, they suggest a national disgrace.
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