The Democrat Thread

[Balta1701]

Again, the burden is on the State to prove its case, and a good defense attorney will poke holes in unreliable testimony on cross examination.

And now you've gotten onto another major issue in the unfairness of the death penalty as currently used in this country...the fact that quality of representation varies hugely, and lower quality initial representation is directly correlated with increased use of the death penalty.

[illinilaw08]

And now you've gotten onto another major issue in the unfairness of the death penalty as currently used in this country...the fact that quality of representation varies hugely, and lower quality initial representation is directly correlated with increased use of the death penalty.

 

Now this is a good topic for discussion. Lots of states have minimum certification requirements to defend an indigent defendant in a capital case. That's the only real solution to that problem is try to ensure that the best of the best are defending capital cases.

[Balta1701]

Now this is a good topic for discussion. Lots of states have minimum certification requirements to defend an indigent defendant in a capital case. That's the only real solution to that problem is try to ensure that the best of the best are defending capital cases.

Of course...to have the best of the best defending a capital case requires a lot of money, and enforcing the death penalty is already ridiculously expensive compared to normal prison sentences.

[StrangeSox]

That's fine; you can believe eye witness testimony is unreliable (and you're right... it can absolutely be unreliable - I remember reading a federal prosecutor's book and him saying something along the lines of "in 90% of cases, the police officer is lying and the defendant is guilty"). But that wasn't my point. In the vast majority of criminal cases, there just isn't physical evidence. In most cases, it is cost prohibitive (if every criminal case had to have some sort of DNA evidence to get a conviction, the system would literally fall apart). Ergo, eye witness testimony is, literally, the best evidence.

 

My question for you is if eye-witness testimony is "worthless" and hard, physical evidence just doesn't exist most of the time, how is the State supposed to try a case? Do we just assume everyone is innocent? I'm sorry victim of a crime... eye witness testimony is unreliable and I have STUDIES that back this up so unless you managed to swab some DNA off your attacker, there's nothing we can do for you.

 

Again, the burden is on the State to prove its case, and a good defense attorney will poke holes in unreliable testimony on cross examination.

Juries should be more educated on the reliability of witness testimony and that an eyewitness saying "that's the guy!" doesn't necessarily mean that that is, in fact, the guy, even if that person earnest believes it. And yeah, if the state can't compile a strong enough case on solid evidence, sorry victim of a crime, we shouldn't try to push a weak case on someone who has a good chance of being innocent.

 

[Balta1701]

Juries should be more educated on the reliability of witness testimony and that an eyewitness saying "that's the guy!" doesn't necessarily mean that that is, in fact, the guy, even if that person earnest believes it. And yeah, if the state can't compile a strong enough case on solid evidence, sorry victim of a crime, we shouldn't try to push a weak case on someone who has a good chance of being innocent.

The real issue is that it is up to the defense to raise doubt on eyewitness testimony, and even in the case of coercion, that's really hard to do.

 

Best answer I can give is that there needs to be well designed procedures that allow for overturning a conviction, particualrly a death sentence, in these cases. In Georgia, there are not.

 

The other thing I should point out is...this isn't necessarily a constitutional issue. The Constitution doesn't require fairness or logic, it requires Due Process, and in this case...the level of "Due Process" granted by the state of Georgia is not up to the task.

[StrangeSox]

The slate article re: scalia and this case I posted earlier highlighted that last part.

[southsider2k5]

Juries should be more educated on the reliability of witness testimony and that an eyewitness saying "that's the guy!" doesn't necessarily mean that that is, in fact, the guy, even if that person earnest believes it. And yeah, if the state can't compile a strong enough case on solid evidence, sorry victim of a crime, we shouldn't try to push a weak case on someone who has a good chance of being innocent.

 

In reality, how many times is eyewitness testimony actually wrong? The odds have got to be minuscule in reality, otherwise the defense would have a very easy way out of it.

[StrangeSox]

I linked to a recent paper that examines the issue, its prevalence, its causes and possible solutions. Here is another article on the issue from the Stanford Journal of Legal Studies.

 

It's hard to get an accurate estimate of the number of real-world trials with inaccurate testimony that led to convictions, but what these studies do are create controlled situations with known facts and examine how accurate a witness's memory is.

[StrangeSox]

PS please note my mea culpa a few posts back that I overstated my position!

[illinilaw08]

Juries should be more educated on the reliability of witness testimony and that an eyewitness saying "that's the guy!" doesn't necessarily mean that that is, in fact, the guy, even if that person earnest believes it. And yeah, if the state can't compile a strong enough case on solid evidence, sorry victim of a crime, we shouldn't try to push a weak case on someone who has a good chance of being innocent.

 

What do you think the state should have to convict? If there is no physical evidence (and I just explained why, in the vast majority of cases, there is no physical evidence), isn't eye-witness testimony the best evidence available?

 

Yes, lineups can be unreliable. Yes, eye-witness testimony can be unreliable. Neither of those statements mean that eye-witness test is ALWAYS unreliable or even that it is unreliable in a significant percentage of cases.

[Balta1701]

In reality, how many times is eyewitness testimony actually wrong? The odds have got to be minuscule in reality, otherwise the defense would have a very easy way out of it.

I really don't think we have a clue, but the evidence out there says that eyewitness only testimony is going to be unreliable a significant minority of times. Probably a lot more than 10%. it's way too easy to be co in Ed you saw something that you really didn't see.

 

Eyewitness only convictions are a mess. He'll, eyewitness testimony is a mess since witnesses can be impacted by other evidence.

[Balta1701]

What do you think the state should have to convict? If there is no physical evidence (and I just explained why, in the vast majority of cases, there is no physical evidence), isn't eye-witness testimony the best evidence available?

 

Yes, lineups can be unreliable. Yes, eye-witness testimony can be unreliable. Neither of those statements mean that eye-witness test is ALWAYS unreliable or even that it is unreliable in a significant percentage of cases.

The standard is "reasonable doubt" though. If you told me on a jury that eyewitness id had a 10% failure rate and the case was eyewitness based, that's reasonable doubt o me.

[southsider2k5]

I linked to a recent paper that examines the issue, its prevalence, its causes and possible solutions. Here is another article on the issue from the Stanford Journal of Legal Studies.

 

It's hard to get an accurate estimate of the number of real-world trials with inaccurate testimony that led to convictions, but what these studies do are create controlled situations with known facts and examine how accurate a witness's memory is.

 

If a defense attourney could get up and say one in a thousand cases the eyewitness is wrong, they would. It would be the easiest out ever.

[StrangeSox]

What do you think the state should have to convict? If there is no physical evidence (and I just explained why, in the vast majority of cases, there is no physical evidence), isn't eye-witness testimony the best evidence available?

 

Yes, lineups can be unreliable. Yes, eye-witness testimony can be unreliable. Neither of those statements mean that eye-witness test is ALWAYS unreliable or even that it is unreliable in a significant percentage of cases.

 

If the best evidence available is questionable and based solely on the frailties of human memory, I'm going to have a hard time voting to convict.

 

Bias creeps into memory without our knowledge, without our awareness. While confidence and accuracy are generally correlated, when misleading information is given, witness confidence is often higher for the incorrect information than for the correct information. This leads many to question the competence of the average person to determine credibility issues. Juries are the fact-finders, and credibility issues are to be determined by juries. The issue then arises whether juries are equipped to make these determinations. Expert testimony may not be helpful. Indeed, since the very act of forming a memory creates distortion, how can anyone uncover the "truth" behind a person’s statements? Perhaps it is the terrible truth that in many cases we are simply not capable of determining what happened, yet are duty-bound to so determine. Maybe this is why we cling to the sanctity of the jury and the secrecy of jury findings:

 

We can put such questions before the jury entirely without fear of embarrassment, because the way the jury resolves the questions and, in all likelihood, the soundness of its answers will remain forever hidden. Perhaps the allure of the black box as a means toward apparent certainty in an uncertain world has tempted us to entrust the jury with more and harder questions than it has the power to answer.9

The courts’ reliance on witnesses is built into the common-law judicial system, a reliance that is placed in check by the opposing counsel’s right to cross-examination—an important component of the adversarial legal process—and the law’s trust of the jury’s common sense. The fixation on witnesses reflects the weight given to personal testimony. As shown by recent studies, this weight must be balanced by an awareness that it is not necessary for a witness to lie or be coaxed by prosecutorial error to inaccurately state the facts—the mere fault of being human results in distorted memory and inaccurate testimony.

[Balta1701]

If a defense attourney could get up and say one in a thousand cases the eyewitness is wrong, they would. It would be the easiest out ever.

I guarantee you that the failure rate of eyewitnesses is higher than that.

[StrangeSox]

If a defense attourney could get up and say one in a thousand cases the eyewitness is wrong, they would. It would be the easiest out ever.

 

It's a hell of a lot higher than 1-1000. No one's memory is a perfect recollection of an event even moments after that event. Many, many studies have been done showing that false memories are relatively easy to implant with simple, subtle and even unintentional suggestions and interactions.

[NorthSideSox72]

In reality, how many times is eyewitness testimony actually wrong? The odds have got to be minuscule in reality, otherwise the defense would have a very easy way out of it.

 

I don't know that I would go as far as "miniscule", I am sure that it is wrong more than that. I've read some of the studies that SS is talking about indirectly or directly, and they show you how powerful emotions and built-in constructs in the psyche can be. I think prosecutors need to be very careful with such testimony.

 

PS please note my mea culpa a few posts back that I overstated my position!

 

I did, thank you.

 

[StrangeSox]

I don't know that I would go as far as "miniscule", I am sure that it is wrong more than that. I've read some of the studies that SS is talking about indirectly or directly, and they show you how powerful emotions and built-in constructs in the psyche can be. I think prosecutors need to be very careful with such testimony.

 

In another life, I might go into neuroscience or some sort of cognitive studies. For as much as we like to think of ourselves as having this big, powerful, logical brains, its really a big mess up there.

 

From that Stanford article:

Several studies have been conducted on human memory and on subjects’ propensity to remember erroneously events and details that did not occur. Elizabeth Loftus performed experiments in the mid-seventies demonstrating the effect of a third party’s introducing false facts into memory.4 Subjects were shown a slide of a car at an intersection with either a yield sign or a stop sign. Experimenters asked participants questions, falsely introducing the term "stop sign" into the question instead of referring to the yield sign participants had actually seen. Similarly, experimenters falsely substituted the term "yield sign" in questions directed to participants who had actually seen the stop sign slide. The results indicated that subjects remembered seeing the false image. In the initial part of the experiment, subjects also viewed a slide showing a car accident. Some subjects were later asked how fast the cars were traveling when they "hit" each other, others were asked how fast the cars were traveling when they "smashed" into each other. Those subjects questioned using the word "smashed" were more likely to report having seen broken glass in the original slide. The introduction of false cues altered participants’ memories.

[illinilaw08]

If the best evidence available is questionable and based solely on the frailties of human memory, I'm going to have a hard time voting to convict.

 

Then you would acquit in the vast, vast majority of cases that are not related to DUIs (where there is always physical evidence - but, but there's a statistical rate of error in breathalyzers so... unreliable!) or capital cases (where the State will pursue all manner of physical evidence). The problem I have with your stance is that you are using an idea, that eye-witness testimony is always questionable, and making it a general rule. Obviously not all eye witness testimony is accurate. But again, that doesn't make every eye witness testimony inaccurate.

 

But, then again, if you answered honestly in voir dire that you would have a hard time convicting in an eye-witness case because of "frailities of human memory" you would never reach the jury box in the first place.

[StrangeSox]

The standard is "reasonable doubt" though. If you told me on a jury that eyewitness id had a 10% failure rate and the case was eyewitness based, that's reasonable doubt o me.

 

Right, the context here is a murder conviction with the possibility of a death penalty. I'd comfortably state that I don't think I'd ever convict anyone on eyewitness testimony alone for something like that.

[StrangeSox]

Then you would acquit in the vast, vast majority of cases that are not related to DUIs (where there is always physical evidence - but, but there's a statistical rate of error in breathalyzers so... unreliable!) or capital cases (where the State will pursue all manner of physical evidence). The problem I have with your stance is that you are using an idea, that eye-witness testimony is always questionable, and making it a general rule. Obviously not all eye witness testimony is accurate. But again, that doesn't make every eye witness testimony inaccurate.

 

The problem is that this places an awfully difficult burden on juries, above and beyond simply determining if someone is credible and telling what they honestly believe is the true version of events without coercion or suggestion.

 

But, then again, if you answered honestly in voir dire that you would have a hard time convicting in an eye-witness case because of "frailities of human memory" you would never reach the jury box in the first place.

 

Probably true. I'm not sure why frailties of human memory is in scare quotes though. It's really an interesting subject in more avenues than just criminal trials.

 

[illinilaw08]

The standard is "reasonable doubt" though. If you told me on a jury that eyewitness id had a 10% failure rate and the case was eyewitness based, that's reasonable doubt o me.

 

No, that's not reasonable doubt. A 10% failure rate of eye-witness testimony does not mean that there is a 10% chance the person on the stand is lying or remembering incorrectly. You, as a juror, would take the facts as presented and give that testimony its weight (more credibility if they knew the person, less credibility if it comes from a lineup and the person was wearing a mask when the attack occurred). But to stand up as a juror and say "I'm sorry, eye-witness testimony is flawed! Reasonable doubt!" is just an incorrect interpreation of that legal standard.

[illinilaw08]

The problem is that this places an awfully difficult burden on juries, above and beyond simply determining if someone is credible and telling what they honestly believe is the true version of events without coercion or suggestion.

 

That's the whole point of juries though. They weigh the evidence and determine if it's credible. If it is, they convict. If it isn't, they acquit.

 

Example, in a DUI trial where the officer used a breathalyzer instead of a blood draw, the defense attorney will call a witness who will tell the jury that the entire science of breathalyzer technology is flawed (and it's true that it isn't as accurate as a blood draw). It is then up to a panel of people who may or may not have a science background to determine if the State's expert is more credible than the defense's expert as to the science involved.

 

Likewise, in a murder trial where the defendant has someone testify as to an alibi. The jury has to weigh the credibility of that person's statements. Polygraphs aren't admissible as evidence, so the jury has to become the polygraph and determine who they believe.

[Jenksismyhero]

The real issue is that it is up to the defense to raise doubt on eyewitness testimony, and even in the case of coercion, that's really hard to do.

 

Best answer I can give is that there needs to be well designed procedures that allow for overturning a conviction, particualrly a death sentence, in these cases. In Georgia, there are not.

The other thing I should point out is...this isn't necessarily a constitutional issue. The Constitution doesn't require fairness or logic, it requires Due Process, and in this case...the level of "Due Process" granted by the state of Georgia is not up to the task.

 

Sorry Balta, but this is beyond bulls***. MILLIONS of dollars and THOUSANDS of hours were spent by every level of the judicial and administrative system to make sure this guy was guilty. You guys are just asking for "one more chance" despite the fact that the guy was given about 15. Is that not enough? Seriously? How is that not due process?

 

Seriously people. READ THE OPINION. Look at the actual details of this case. We're not talking about simple facts like A sees B shoot C. A tells cops B did it. B put to death even after A says no i was wrong. There are HUNDREDS of underlying facts in this case that showed that a lot of what the people were recanting/saying was complete bulls***. They changed their story 15 years down the road.

 

 

 

[StrangeSox]

Sorry Balta, but this is beyond bulls***. MILLIONS of dollars and THOUSANDS of hours were spent by every level of the judicial and administrative system to make sure this guy was guilty. You guys are just asking for "one more chance" despite the fact that the guy was given about 15. Is that not enough? Seriously? How is that not due process?

 

Seriously people. READ THE OPINION. Look at the actual details of this case. We're not talking about simple facts like A sees B shoot C. A tells cops B did it. B put to death even after A says no i was wrong. There are HUNDREDS of underlying facts in this case that showed that a lot of what the people were recanting/saying was complete bulls***. They changed their story 15 years down the road.

 

I did, and so have many others that don't agree with you. It's not as clear-cut as you're presenting it.