Monday, March 09, 2009


Like Churchill 's lonely warnings about Germany through the 1930's, we've often, singularly,  and loudly decried the inherent unreliability about Eyewitness testimony. Finally, a news media outlet has reported on the issue. 

The title of the post links to the 60 minutes piece on eyewitness testimony

In a nutshell, the piece starts off by examining the case of a young man twice convicted of raping a woman. He was convicted, got a new trial, his attorneys brought the real rapist into the courtroom, and the woman still identified the person from the first trial. After serving ten years in prison Ron Cotton was released when his attorneys located DNA from the crime and it matched the person who they accused of the rape at the second trial. 

How can a person misidentify her assailant in a courtroom twice, even when being shown the real assailant? 

If you don't know the answer to that question then you've never read The Seven Sins Of Memory. 
Click on the title to the Amazon link to the book. If you are a conscientious prosecutor,  judge, or defense attorney, you will spend a weekend reading this book and will realize that just about everything that happens in an identification case is not only done incorrectly, but is done in a manner that just about guarantees that the witness's testimony is scientifically worthless. 

Memory is not like a video tape that is replayed of the event. It is something far less tangible and far more subject to influence than most of us realize. 

In the case reported on by 60 Minutes one of the crucial errors made by the police, unintentionally for sure, was the detective verifying to the woman that the person she picked out of the photo lineup was the same person she identified at the live lineup. That made the courtroom identification a foregone conclusion, and yet as science will tell us, the courtroom identification under those circumstances was basically worthless and totally unreliable.  Yet there isn't a Judge around with the guts to sustain a defense attorneys challenge to these types of procedures.  With so many people convicted on such unreliable evidence, what judge wants to let the genie out of the bottle? 

It will only be when the police are better trained,  that eyewitness identifications will become more reliable. So while innocent people are shuffled off to prison daily on the basis of what is considered the strongest evidence, but is in fact the weakest and most unreliable garbage,  it will only be when the police find it in their self interest to start arresting the right people that change will occur. 

And how sad is that? 


Anonymous said...

I bet Kathy FR and Don H wouldn't be able to push people around if ASAs sacked up and unionized....teachers do it.

Anonymous said...

You raise an important point, one worthy of serious discussion. I just can't understand why you would detract from it by unnecessarily and gratiutiously condemning the police.

You say, "it will only be when the police find it in their self interest to start arresting the right people that change will occur." That's ridiculous. Cops ARE motivated to catch the right guys. That's not the issue and you know it.

When you get past the nonsense and rhetoric, the truth is that most cops and prosecutors want to do the right thing. Among other things, we need to do a MUCH better job hiring qualified personnel(difficult to do when we as a society don't want to pay for that.........if you think today's SAOs are weak, watch who applies/stays when the state starts furloughing them) and training them (again, difficult to do when we don't want to pay for that).

I believe that the deterioration of relationships between prosecutors and defense attorneys also contributes to the problem. When people can't sit down and talk about cases (or issues like this) without getting crazy, people dig in. We've ALL been guilty of that. It's human nature (and often occurs subconsciously). Guys who do that like Clinton Pitts, Reemberto Diaz (he was a great defense attorney before becoming a judge), Michael Matters (I tried a case against him as a prosecutor; the man is as honest as the day is long), etc. get much further than the folks who are so contentious that the prosecutors won't give them the time of day.


CAPTAIN said...



It was a great story on 60 Minutes last evening and I only wish that every prosecutor and detective got to see it.

The positives that came out of the incident are reaching way beyond the State of North Carolina. The victim Jennifer Thompson and the "defendant" Ron Cotton have recently written a book called "PickIng Cotton" and the victim is speaking to conferences of prosecutors, detectvies and defense attorneys all over the country about eye witness "mis-identification".


Do you know whether our "finest", the police agencies here in South Florida are using the new photo line-up techniques that were recommended in the 60 Minutes piece; namely the one at a time photo versus the old style six perp spread that we have seen for all these years?

Cap Out ....

Anonymous said...

This sad, sad story has been around for many, many years. Below is the link for PBS Frontline's Program "What Jennifer Saw." This is the program about Mr. Ronald Cotton's wrongful conviction for the rape of Ms. Jennifer Thompson. The program discusses How eyewitness Identification can go wrong and includes interviews with Barry Sheck, Peter Neufeld and memory experts Elizabeth Loftus.


Anonymous said...

The one-at-a-time method ("serial" presentation) is old news and was recommend by the Department of Justice years ago. Wake up, people.

Anonymous said...

In case anyone is really interested in the facts of Mr. Cotton's wrongful conviction and 10 1/2 year imprisonment:

RONALD COTTON (Burlington, North Carolina)

Factual Background. In two separate incidents in July 1984, an assailant broke into an apartment, severed phone wires, sexually assaulted a woman, and searched through her belongings, taking money and other items.

On August 1, 1984, Ronald Cotton was arrested for the rapes. In January 1985, Cotton was convicted by a jury of one count of rape and one count of burglary. In a second trial, in November 1987, Cotton was convicted of both rapes and two counts of burglary. An Alamance County Superior Court sentenced Cotton to life plus 54 years.

Prosecutor's evidence at trial. Cotton's alibi was supported by family members. The jury was not allowed to hear evidence that the second victim failed to pick Cotton out of either a photo array or a police lineup. The prosecution based on its case on several points:

A photo identification was made by one of the victims.

A police lineup identification was made by one of the victims.

A flashlight in Cotton's home resembled the one used by the assailant.

Rubber from Cotton's tennis shoe was consistent with rubber found at one of the crime scenes.

Postconviction challenges. Cotton's attorney filed an appeal. The North Carolina Supreme Court overturned the conviction because the second victim had picked another man out of the lineup and the trial court did not allow this evidence to be heard by the jury.

In November 1987, Cotton was retried, this time for both rapes. The second victim had decided that Cotton was the assailant. Before the second trial, a man in prison, who had been convicted for crimes similar to these assaults, stated to another inmate that he had committed Cotton's crimes. The superior court judge refused to allow this information into evidence, and Cotton was convicted of both rapes and sentenced to life.

The next year Cotton's apellate defender filed a brief that did not argue the failure to admit the second suspect's confession. The conviction was affirmed. In 1994 two new lawyers, at the request of the chief appellate defender, took over Cotton's defense. They filed a motion for appropriate relief on the grounds of inadequate appeal counsel. They also filed a motion for DNA testing that was granted in October 1994. In the spring of 1995, the Burlington Police Department turned over all evidence that contained the assailant's semen for DNA testing.

DNA Results. The samples from one victim were too deteriorated to be conclusive, but the samples from the other victim's vagainal swab and underwear were submitted to PCR testing and showed no match to Cotton. At the defense attorney's request, the results were sent to the State Bureau of Investigation's DNA data base containing the DNA patterns of convicted, violent felons in North Carolina prisons. The state's data base showed a match with the convict who had earlier confessed to the crime.

Conclusion. After Cotton's attorneys received the DNA test results in May 1995, they contacted the district attorney, who joined the defense attorneys in the motion to dismiss the charges. On June 30, 1995, Cotton was officially cleared of all charges and released fron prison. In July 1995. the governor of North Carolina officially pardoned Cotton, making him eligible for $5,000 compensation from the state. Cotton had served 10 1/2 years of his sentence.

Anonymous said...

The first step would be to have a courageous judge actually let a defense witness testify regarding the (un)reliability of eyewitness testimony...current Florida law states it is in the "discretion" of the trial court...which usually means it stays out and the jury doesn't even get a chance to hear about the unreliability of eyewitness testimony...

Anonymous said...

The agencies in Broward are now using this new method, with a detective who knows nothing about the case presenting the 6 photos (one at a time) so as to remove the possibility of any suggestion of LEOs

Rumpole said...

BTDT here is my view of the cops- yes many are motivated to obviously catch the right person. BUT what happens is that they work a case. They have no leads. Someone says something like "you should look at john smith. I saw him hanging around and he's a bad guy" The cop checks out smith and sees he has a not guilty for robbery and an open assault case. The cop decides smith is the guy. The cop picks up smith and decides that his mission in life is to take the case out of the hands of lawyers and judges that the cop resents and the cop goes out of his way to get a "confession." He won't tape the confession and he won't tape the "pre-statement".

So my point is this- many cops make snap judgments at the scene or after speaking to a witness and decide from that point forward to skewer their investigation against the suspect, Thus in Cotton's case, although it was probably unintentional, when the detective told the victim she had picked out the right guy, or more accurately the person she had previously identified in a photo line up, he was skewering any chance the defendant had for a meaningful in court identification.

With the problems of witness ID proven, and cops unwilling to change their techniques, I can only draw the conclusion that rather than have a meaningful ID, they would prefer to decide for themselves if the suspect is guilty and then work the case from the angle of not giving the defense anything to work with, rather than use a real and valid ID technique.

Anonymous said...

Rump---I have no problem with that comment. That's very different from suggesting that the police aren't motivated in finding the right guy.

Cops are like the rest of us. Except for a couple of important distinguishing and routine experiences. They see this stuff every day. They deal with dangerous people on a constant basis, deliver bad news to victims and their families more often than most of us could stand, and work with the traumatized regularly. As much as they may try, they can't separate these experiences from their work. None of us could.

This doesn't excuse any rush to judgment, but does explain why some have lapses in judgment (when I was a prosecutor I handled two cases where such lapses occured...........and it made me sick).

Cops may be more willing to listen to us if we discussed the issues rationally. Again, the rhetoric doesn't help. I believe that most would welcome serious attempts to improve the likelihood that the guilty will be caught. We just need to approach them in a more constructive manner. The adversarial system is great for motions and trials, but doesn't create good/thoughtful policy. I myself have experienced the failure of good ideas because people were too busy fighting each other instead of focusing on the solution.

Leifman's mental health court is a perfect example. Leifman, as everyone knows, is a longstanding advocate for the mentally ill. When he proposed a specialized court, the PDs loved it. But, the SAO refused to allow it to go forward. Finally, Leifman prevailed on the SAO to allow a pilot, which worked exceptionally well. The SAO became very supportive. What happened next? The PDs decided that if the SAO liked it, it must be a problem and began badgering Leifman. Go figure.


Anonymous said...

8:12............you have no idea what you're talking about. The union idea was floated off and on for a couple of years in the early part of this decade. This issue isn't the prosecutors' chutzpah. In fact, several ranking prosecutors openly pushed the idea (and with KFR's blessing, nonetheless!). The union could've worked WITH the SAO to push for increased salaries, pensions, etc.

The fact is that turnover was (and remains) so high that more than half the prosecutors couldn't be bothered with filling out cards. Why? Because they have no reason to unionize (they wouldn't be around long enough to obtain any benefit).

Anyone is/was in the administration or has good friends who were/are knows that the office is overly cautious about disciplining anyone (which creates a more fair, but far less efficient system). In fact, I'd argue that the office could and should crack down on the lazy prosecutors more than it has (ie. KFR and Don H could be pushing harder!). Ask any hardcore prosecutor (I've been gone for a while).........they'll tell you the same thing. The number of lazy prosecutors is way too high (of course, given the paltry sums the office can pay its employees, it's easily understood why).


the anonymouse said...

Unionize without a right to strike? Quite a valuable tool, eh?
Perhaps the prosecutors could align with the Teamsters. That would get lots of press. Just like the teachers, they would pay dues and get nothing in return.

We little mice have thought this through -- and it could never work!

Fake Jimmy Hoffa said...

Miami-Dade ASAs (and the AUSAs from the Southern District of Florida) should be represented by none other than the Teamsters. Then I can come out of hiding, move to Miami and not have to worry about some asshole prosecutors trying to send me to prison again.

Anonymous said...

BTDT at 2:58 p.m., those prosecutors are not lazy. They just perform the exact amount of work that they are compensated for performing.

Anonymous said...

4:24 said, "those prosecutors are not lazy. They just perform the exact amount of work that they are compensated for performing."

I say that's baloney (to put it nicely). When I started I was paid squat and still worked my butt off. Poor pay is not an excuse for laziness. If they had even an inkling about the importance of their jobs and a modicum of self-pride, they'd put it real hours despite the pay.


Shumie Rules said...

The Shumie Gang wants to know what's the 411 with you and your Latin twitter mistress?

Anonymous said...

christ will be the next republican president.

the dow will hit 5800k and then rebound

sleepy brummer will rise from the dead.

the ultimate male

Anonymous said...

I for one am pro-defense on most issues only because asa's get it wrong way too many times. However, Rumpole any good writer or at least one that wants to be taken serious should try and balance the view and let the readers decide from the facts. Even if you harbor as I do pro-defense views still try and be neutral on some subjects.

Anonymous said...

Let me get this straight....

Eyewitness testimony is "inherently unreliable".....

We know this because "Mr. Cotton was exonerated".....



What exactly are you suggesting then?

Should the State be precluded from proceeding against an identified defendant absent corroboration?...

Is that what you are really suggesting?

So...correct me if I am wrong... In your perfect world, if a really really really sinister individual feels compelled to kill somebody ( and I mean he or she really really really feels strongly about KILLING somebody. He or she has been thinking about it and planning it with meticuluous forthought for a considerable amount of time), all he or she has to do is perform his or her foul deed without: leaving fingerprints, DNA, or video surveillance of his or her atrocity and even if someone sees him or her do it, they're in the clear.

Is this what you think the standard should be?

Have a nice day...Feel free to kill again?


Hide your wives and daughters, hide the groceries too.....


Aren't you bored with this nonsense?



Anonymous said...

Dear Ultimate Male,

Before Christ can run for President does he not first have to resurrected and descend from heaven. Besides, other than being our Lord and Savior, what are his qualifications?

Anonymous said...

not MY lord and savior, i can tell you that much.

Anonymous said...

I handled a burglary case where the victim was 100% sure my client did it. She said was goi g to rape her. Client just drove by house after the crime. Client was gay male. Burglar left blood on window. Dna said not him. He sat in jail two months