Study after study has proven over and over again that mistaken eyewitness identification is the primary cause of the conviction of innocent people in the United States. In all most every DNA exoneration case tracked by the Innocence Project at the Cardozo School of Law shows that over 75% of the people eventually exonerated by DNA evidence were convicted at trial by people who testified based on their eyewitness identification. Eyewitness identification is powerful testimony and unless the jury is advised of the vagaries of such testimony most juries will convict.
Although New Jersey has modified its jury charge on eyewitness identification to alert the jury to certain variables that might affect a witnesses memory, such instructions are not the magic bullet, and these instructions do not completely solve the problem. Therefore, in defending the eyewitness identification case, the best practices in handling those cases must focus on the new model jury charges as applied to the facts of the particular case. A jury sitting in these types of cases must be educated that they cannot place too much weight on this type of testimony.
By way of example, in 1975 while attending undergraduate school at the George Washington University I conducted an experiment in a public/speaking criminal justice course. For my assignment without the professor’s or students prior knowledge I had a fellow student and friend (Jay Swartz), not enrolled in that course, run into the class room while I was standing in front of my the class giving my presentation with a fake gun and pretend to rob me in front of the professor, and approximately 25 students. (Footnote, experiment obviously could not be done in 2013, since if something like this would happen the school would be in lockdown, and the entire George Washington University would be closed down with the school surrounded by the entire DC police not including every other federal police agency in the city, with Jay and I being arrested for some stupid charge)
Since it was in 1975 and not 2013, after Jay had left with stealing my book bag, and I continued to do my presentation, which including within minutes a survey of the professor and students to see whether they could identify Jay. Not surprisingly, although Jay ran up to me in well lighted class room, in front of everyone, not one student or professor could give an accurate description of what Jay looked like, what he was wearing. They by-in large could not remember his height, weight, whether he had facial hair etc. It is interesting to note, that not one of the real students that were the unexpected observers in the experiment were subject to the stresses of a real crime such as fear, stress, anxiety, visual handicaps such as distance, lighting or obstructed view. It has been empirically proven over and over again that fear, stress and anxiety does not improve or focus memory since the survival mechanism under such strain is “fight or flight”, which shuts down to a large extent or cognitive memory. Fearful stimuli causes are brain to go into a flight or fight mode, and is not contusive to forming a clear memory of the incident. In that experiment many of the students were focused the fake handgun and thus they took little notice of Jay facial features or his other physical description.
Therefore, in any potential eyewitness case the initial description of the assailant may or may not be reliable. Whether more than one-witness was involved and whether the second alleged suspect was involved are issues which can lead to serious misidentification and a wrongful conviction. This is particularly true, since a victim, even when mistaken, will normally make a powerful and convincing witness, and most juries will be empathic to the victim’s plight. This is especially true when the victim/witness uses language such as “I am certain that it is him”, or “I am 100% sure that this is the person that robbed me.”
In summary it is essential that the criminal defense attorney do all that is possible to educate the jury by using as reference the model eyewitness identification instructions in his summations to the jury. The criminaldefense lawyer must apply the facts of the case (or lack of facts of the case) to those instructions so that the jury will understand that eyewitness’ to a crime might not be as reliable as they seem at first, and that the jury must exercise their legal duty and find the defendant not guilty, if there is reasonable doubt as to the eyewitness identification.
Even the best cross-examination (“Cousin Vinny”) moments, when the eyewitness is shown to be unreliable through faulty eyesight, or the cooking of grits, is rare in real life criminal trials.
Law Office of Vincent J. Sanzone, Jr.
Tel. No. (908) 354-7006
Dated: December 30, 2013
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Quote of the Day:
“To sleep perchance to dream: ay, there’s the rub; For in that sleep of death what dreams may come when we have shuffled off this mortal coil must give us pause ... For who would bear the whips and scorns of time, the oppressor’s wrong ... the pangs of despised love ... the law's delay, The insolence of office and the spurns that patient merit of the unworthy takes, When he himself might his quietus make With a bare bodkin? who would fardels bear, To grunt and sweat under a weary life, But that the dread of something after death, The undiscovered country from whose bourn no traveler returns, puzzles the will and makes us rather bear those ills we have than fly to others that we know not of? Thus conscience does make cowards of us all.”