Trayvon Martin

[StrangeSox]

It's not unreliable. CSI has warped your people's minds about the requirements of evidence.

 

It's really, really unreliable.

 

It's not unreliable because it doesn't meet CSI super-forensics evidence standards but because people often and easily mis-remember things and get it wrong. This is an active area of research in legal and psychological fields e.g.:

http://agora.stanford.edu/sjls/Issue%20One...amp;tversky.htm

[Jenksismyhero]

I have no doubt that people misconstrue what they see. But a juror is informed of this. It's their job to determine if what the person saw is what they saw based on how they explain it, if there's any doubt in their minds, etc. It's one of MANY pieces of evidence used at a trial.

 

The fact that eye witness testimony by one witness is unreliable does not mean eye witness testimony generally is unreliable.

Edited May 23, 2012 by Jenksismybitch

[StrangeSox]

You can pop on over to google scholar and browse a bunch of the studies on this. Eyewitness testimony really is generally unreliable under some circumstances but not all. Obviously you're not likely to mis-remember or mis-identify your mother, but if it's a random stranger that you witnessed, it's pretty likely.

 

edit: As usual, Frontline has an excellent episode on one of the most prominent cases of the failure of eyewitness testimony, Robert Cotton.

Edited May 23, 2012 by StrangeSox

[Jenksismyhero]

You can pop on over to google scholar and browse a bunch of the studies on this. Eyewitness testimony really is generally unreliable under some circumstances but not all. Obviously you're not likely to mis-remember or mis-identify your mother, but if it's a random stranger that you witnessed, it's pretty likely.

 

edit: As usual, Frontline has an excellent episode on one of the most prominent cases of the failure of eyewitness testimony, Robert Cotton.

 

A good attorney would be able to punch holes in the reliability of eye witness testimony if it was that questionable. And i'm sure most of the time people testifying would readily admit they are not 100% certain if they're not 100% certain.

[StrangeSox]

Good defense attorneys are aware of the decades of research on the unreliability of eyewitness testimony, but jury members often are not and place a lot of weight on it. As in the Robert Cotton case, the victim can be 100%, absolutely certain and still be wrong.

 

Are you saying that all of the academic background on the reliability of eyewitness testimony is bulls***?

[Jenksismyhero]

Good defense attorneys are aware of the decades of research on the unreliability of eyewitness testimony, but jury members often are not and place a lot of weight on it. As in the Robert Cotton case, the victim can be 100%, absolutely certain and still be wrong.

 

Are you saying that all of the academic background on the reliability of eyewitness testimony is bulls***?

 

No, i'm saying that the average person is going to have many experiences in life where their own recollection is not 100%, so they will take that information into account when rendering a verdict, and they'll accurately and reasonably understand the level of importance eye witness testimony provides.

 

I just don't think it's that big of a deal. Eye witness testimony doesn't do much in 99% of cases without other corroborating evidence. If i'm dead wrong about seeing you at X place other evidence needs to actually establish that you were at X place in order for you to be found guilty.

 

[StrangeSox]

That simply isn't true and what you're claiming is 100% the opposite of what the research shows. It's been shown that juries place an undue weight on eyewitness testimony even if it contradicts physical evidence. The case I already referenced, Ronald Cotton, had a man sentenced to Life + 54 years based mainly on the victim's testimony, which turned out to be wrong. You can read an interview with Jennifer Thompson, the victim who wrongly identified Cotton despite going to great lengths during the crime to try to commit her assailant to memory. If you're dead wrong about seeing me at X place, the jury doesn't know that if you're a great liar or earnestly believe I was there.

 

Here's another article that's a couple of years old from Scientific American.

 

Surveys show that most jurors place heavy weight on eyewitness testimony when deciding whether a suspect is guilty. But although eyewitness reports are sometimes accurate, jurors should not accept them uncritically because of the many factors that can bias such reports. For example, jurors tend to give more weight to the testimony of eyewitnesses who report that they are very sure about their identifications even though most studies indicate that highly confident eyewitnesses are generally only slightly more accurate—and sometimes no more so—than those who are less confident. In addition to educating jurors about the uncertainties surrounding eyewitness testimony, adhering to specific rules for the process of identifying suspects can make that testimony more accurate.

 

 

 

 

[Jenksismyhero]

That simply isn't true and what you're claiming is 100% the opposite of what the research shows. It's been shown that juries place an undue weight on eyewitness testimony even if it contradicts physical evidence. The case I already referenced, Ronald Cotton, had a man sentenced to Life + 54 years based mainly on the victim's testimony, which turned out to be wrong. You can read an interview with Jennifer Thompson, the victim who wrongly identified Cotton despite going to great lengths during the crime to try to commit her assailant to memory. If you're dead wrong about seeing me at X place, the jury doesn't know that if you're a great liar or earnestly believe I was there.

 

Here's another article that's a couple of years old from Scientific American.

 

Of course eye witness testimony is important. It's the best evidence available, even if it CAN BE, but is not ALWAYS unreliable. Lots of evidence can be unreliable in your distorted view of how jurors analyze evidence before them. s***ty cops screw up investigations. Numerous cases have been overturned because cops were found to have done illegal things with evidence/witnesses/whatever. Does that mean all evidence in the hands of the police is unreliable? That all facts discovered by the cops are unreliable? No. It means that jurors should be - and are - skeptical of that evidence, but not necessarily to the point of not believing that evidence. It's a weighed opinion in their minds as to how credible they think the cop (witness) is and they weigh that determination with other evidence in the record.

 

Again, you're asking for 100% CSI-level certainty in a system where 100% certainty is impossible.

[Jenksismyhero]

And this:

 

Error-Prone IDs

A number of factors can reduce the accuracy of eyewitness identifications. Here are some of them:

 

Extreme witness stress at the crime scene or during the identification process.

Presence of weapons at the crime (because they can intensify stress and distract witnesses).

Use of a disguise by the perpetrator such as a mask or wig.

A racial disparity between the witness and the suspect.

Brief viewing times at the lineup or during other identification procedures.

A lack of distinctive characteristics of the suspect such as tattoos or extreme height.

 

Those are things that a good defense attorney would bring up to the jury in order to discredit what a witness says they saw. It's up to the juror to decide if they think that's important or not.

 

[StrangeSox]

Of course eye witness testimony is important. It's the best evidence available, even if it CAN BE, but is not ALWAYS unreliable. Lots of evidence can be unreliable in your distorted view of how jurors analyze evidence before them. s***ty cops screw up investigations. Numerous cases have been overturned because cops were found to have done illegal things with evidence/witnesses/whatever. Does that mean all evidence in the hands of the police is unreliable? That all facts discovered by the cops are unreliable? No. It means that jurors should be - and are - skeptical of that evidence, but not necessarily to the point of not believing that evidence. It's a weighed opinion in their minds as to how credible they think the cop (witness) is and they weigh that determination with other evidence in the record.

 

Again, you're asking for 100% CSI-level certainty in a system where 100% certainty is impossible.

 

No I'm not. I'm asking you to recognize well-documented problems with eye witness testimony because you keep hand-waving it away as "not a big deal" despite the people in legal academia saying that, yeah, it is a big deal.

[Jenksismyhero]

No I'm not. I'm asking you to recognize well-documented problems with eye witness testimony because you keep hand-waving it away as "not a big deal" despite the people in legal academia saying that, yeah, it is a big deal.

 

You're arguing something that's basic common sense and an issue that has been handled by attorneys in trials forever. Eye witness testimony can be faulty, and SOME jurors are terrible jurors. What's your solution? Exclude all eye witness testimony? Do you seriously believe that the average juror ignores credibility issues when a witness claims they're 100% certain about what they saw?

 

[StrangeSox]

Have you read any of the papers on this issue? It's not "basic common sense" but an actual problem that leads to bad verdicts by juries. I seriously believe that decades of research has shown that juries rely far too much on eyewitness testimony, that the average person isn't a particularly great judge of the sincerity of a witness, that the average person has a very flawed understanding of human memory and that numerous people have been falsely convicted based on eyewitness testimony.

 

I don't know why you think this isn't a possibility or a real issue. It's an active area of research and concern. What do you have to say it's "basic common sense" and that people aren't overly reliant on eyewitness testimony and that eyewitness testimony itself isn't often reliable? So far you're just saying "no it isn't" without actually supporting your claim.

[Jenksismyhero]

Have you read any of the papers on this issue? It's not "basic common sense" but an actual problem that leads to bad verdicts by juries. I seriously believe that decades of research has shown that juries rely far too much on eyewitness testimony, that the average person isn't a particularly great judge of the sincerity of a witness, that the average person has a very flawed understanding of human memory and that numerous people have been falsely convicted based on eyewitness testimony.

 

I don't know why you think this isn't a possibility or a real issue. It's an active area of research and concern. What do you have to say it's "basic common sense" and that people aren't overly reliant on eyewitness testimony and that eyewitness testimony itself isn't often reliable? So far you're just saying "no it isn't" without actually supporting your claim.

 

 

Come on, stop being disingenuous. I never said it's not a possibility or that it's not an issue. I'm saying it's not a big deal in the grand scheme of things. You're pointing out a problem that arises in very few cases because by the nature of the trial system eye witness testimony is just one of MANY forms of evidence that leads a juror to conclude guilty/not guilty. Numerous people have been falsely convicted because of s***ty jurors, faulty police investigations, whathaveyou. Yet people don't make blanket statements like "police evidence is unreliable" or "jurors are unreliable." It's still an acceptable form of evidence, even if it's shown that SOME eye witness testimony is wrong. That's my point. No study is going to establish how a juror weighs eye witness testimony in rendering a verdict because it's done on a case by case basis. Great, you've provided a study that eye witness testimony is important. Of course it is, it's the best evidence you can have.

 

But what's the end game here? You've argued that eye witness testimony is faulty on occasion. So what? Are we excluding all of it now? What do you want to happen? Jurors need to be apprised of the fact that eye witnesses can be wrong? You're completely ignoring the fact that credibility of eye witness testimony is already an issue. Go rewatch My Cousin Vinny to see how attorneys can address this issue and let the jurors know that just because someone says they're 100% certain doesn't mean they truly are. You're pretending like people don't understand that sometimes they see something they don't really see. That not all eye witness testimony is 100% accurate. That's common sense.

 

 

 

 

[StrangeSox]

Of course it is, it's the best evidence you can have.

 

No it isn't. That's the point.

 

I'm going to rely on legal academic research instead of "My Cousin Vinny." You're arguing against a substantial body of work with appeals to 'common sense' while missing what the issue actually is.

Edited May 24, 2012 by StrangeSox

[Jenksismyhero]

No it isn't. That's the point.

 

I'm going to rely on legal academic research instead of "My Cousin Vinny." You're arguing against a substantial body of work with appeals to 'common sense' while missing what the issue actually is.

 

Dude, you're out of your element here. Eye witness testimony is the best evidence available, period. Citing a study that says eye witness testimony isn't always reliable doesn't refute that. You're talking about a small number of cases, and you're ignoring how attorneys and jurors combat that problem.

 

I'll ask for the 3rd time: what are you going to do about this problem? The answer is that it's already been taken care of - you attack the credibility of the witness. Absent that, there's nothing you can do, so it's "not a big deal."

[StrangeSox]

You're still not getting it. It's not about specific witnesses that aren't credible but about human memory itself and its fallibility. Go read about the Ronald Cotton case, then go read any number of reports and studies on this issue. Go read the DoJ report from 98 or 99 on the issue.

 

Continuing to believe that "eyewitness testimony is the best evidence available, period" is exactly the problem. You've made my argument by stating that plainly. You, an educated lawyer, believe this despite quite a bit of evidence to the contrary that's out there. An overwhelming majority of jurors believe this and put an undue weight on eyewitness testimony just as you have done. That is the problem, and that's what has led to wrongful convictions.

 

Attacking the credibility of a specific witness doesn't take care of basic misunderstanding of the capabilities of human memory. Jennifer Thompson was a completely credible witness and made a specific effort during the rape to remember her assailant's face. She was 100% sure that she had identified the right man, and her testimony led to his conviction. It was later overturned by DNA evidence. Jennifer Thompson's credibility couldn't be impugned beyond the very issue you're rejecting--fundamental problems with what you've termed 'the best evidence available.' There are solutions to this problem, such as the reforms recommended by the DoJ in the 98 report. Many of the papers and studies contain recommendations. Another important aspect is education and raising awareness of the problems with eyewitness testimony so that the general public is aware of what the research has shown and jurors are less likely to believe in false ideas like 'eyewitness testimony is the best evidence available, period.'

 

How much of the literature on this issue have you read?

Edited May 24, 2012 by StrangeSox

[illinilaw08]

You're still not getting it. It's not about specific witnesses that aren't credible but about human memory itself and its fallibility. Go read about the Ronald Cotton case, then go read any number of reports and studies on this issue. Go read the DoJ report from 98 or 99 on the issue.

 

Continuing to believe that "eyewitness testimony is the best evidence available, period" is exactly the problem. You've made my argument by stating that plainly. You, an educated lawyer, believe this despite quite a bit of evidence to the contrary that's out there. An overwhelming majority of jurors believe this and put an undue weight on eyewitness testimony just as you have done. That is the problem, and that's what has led to wrongful convictions.

 

Attacking the credibility of a specific witness doesn't take care of basic misunderstanding of the capabilities of human memory. Jennifer Thompson was a completely credible witness and made a specific effort during the rape to remember her assailant's face. She was 100% sure that she had identified the right man, and her testimony led to his conviction. It was later overturned by DNA evidence. Jennifer Thompson's credibility couldn't be impugned beyond the very issue you're rejecting--fundamental problems with what you've termed 'the best evidence available.' There are solutions to this problem, such as the reforms recommended by the DoJ in the 98 report. Many of the papers and studies contain recommendations. Another important aspect is education and raising awareness of the problems with eyewitness testimony so that the general public is aware of what the research has shown and jurors are less likely to believe in false ideas like 'eyewitness testimony is the best evidence available, period.'

 

How much of the literature on this issue have you read?

 

This argument has happened before on this board...

 

SS, what is the end game? Obviously there are situations where eye witness testimony is given more weight than it should. And obviously there are plenty of examples of the mind playing tricks on memory. But that doesn't make all eye witness testimony unreliable. There are plenty of situations where that isn't an issue. Take a domestic violence case. Abused wife is on the stand. The question is: What happened that night? The answer: My husband beat the crap out of me. Do we say, "Wait a second! Eye witness testimony isn't reliable!" In that case, of COURSE it's reliable. She knew the assailant. She was there. Those factors make her testimony extremely reliable. If you asked her to re-create every minutae, every single detail of what happened, then yes, reliability becomes a bigger issue.

 

Not all eyewitness testimony is the same, but to echo Jenks, what is your solution: Do you want to exclude all eyewitness testimony? Do you want jury instructions in every case that cite to the inherent unreliability of human memory?

[StrangeSox]

This argument has happened before on this board...

 

SS, what is the end game? Obviously there are situations where eye witness testimony is given more weight than it should. And obviously there are plenty of examples of the mind playing tricks on memory. But that doesn't make all eye witness testimony unreliable. There are plenty of situations where that isn't an issue. Take a domestic violence case. Abused wife is on the stand. The question is: What happened that night? The answer: My husband beat the crap out of me. Do we say, "Wait a second! Eye witness testimony isn't reliable!" In that case, of COURSE it's reliable. She knew the assailant. She was there. Those factors make her testimony extremely reliable. If you asked her to re-create every minutae, every single detail of what happened, then yes, reliability becomes a bigger issue.

 

I made this distinction in one of the first posts. Identifying someone whom you know is a different case than identifying someone you have only ever seen briefly.

 

Not all eyewitness testimony is the same, but to echo Jenks, what is your solution: Do you want to exclude all eyewitness testimony? Do you want jury instructions in every case that cite to the inherent unreliability of human memory?

 

Better police procedures when gathering evidence and questioning witnesses was one of the major recommendations from the DoJ report. It summarizes some of the issues and offers guidelines for establishing procedures.

 

I am not pretending to know the answer myself; my issue is with jenks' insistence on eyewitness testimony being the best possible evidence period and that 'it's not a big deal' when legal and psychological academia clearly and resoundingly disagree. My personal opinion is that widespread awareness of the unreliable nature of human memory would be greatly beneficial in reducing the undue weight juries tend to place on eyewitness testimony. A problem being difficult to solve doesn't mean it "isn't a big deal" and we should ignore it or pretend that it isn't really a problem after all because juries have "common sense."

 

In one sense, jenks is correct in that juries do treat eyewitness testimony as the best possible evidence. In that regard, from the litigator's POV, it is the "best possible" evidence they can present. But from a neutral point of view, it is far from the best possible evidence in determining what actually happened. That disconnect between how juries view EWT and the unreliable nature of EWT is the source of the problem.

[Texsox]

As flawed as our legal system is, we generally allow the flaws to benefit the accused moreso than the prosecutor. That is good.

[Balta1701]

As flawed as our legal system is, we generally allow the flaws to benefit the accused moreso than the prosecutor. That is good.

However, "Eyewitness testimony is the strongest type of evidence" is generally a flaw that strongly benefits the accuser.

[StrangeSox]

Also "prosecutorial immunity"

[Texsox]

However, "Eyewitness testimony is the strongest type of evidence" is generally a flaw that strongly benefits the accuser.

 

 

Doesn't that depend on what the eyewitness says?

[Balta1701]

Doesn't that depend on what the eyewitness says?

This case is loaded with multiple, contradictory eyewitness statements, which basically are on all sides of the fight. And yet, prosecutors were still able to bring charges. And this is a high profile case, where everyone is crossing their t's and dotting their i's.

 

If the justice system worked well, then in every case like this, the eyewitness testimony would be ripped apart by both sides as inconsistent, and the story would be about how well the testimony of a few eyewitnesses fits with the hard evidence (timeline, physical evidence).

 

However, the system rarely works like this when the eyes of the nation aren't on the case. Inadequate, poorly funded representation combined with the fact that police are the ones doing the interviews and finding the eyewitnesses makes them regularly be how the prosecution makes their case, and a generic public defender won't have the resources to put together their own "eyewitnesses" to make the counter-argument.

 

There's a reason why the "one or two eyewitness" cases are the ones that give the worst rates of having major convictions overturned.

[illinilaw08]

In one sense, jenks is correct in that juries do treat eyewitness testimony as the best possible evidence. In that regard, from the litigator's POV, it is the "best possible" evidence they can present. But from a neutral point of view, it is far from the best possible evidence in determining what actually happened. That disconnect between how juries view EWT and the unreliable nature of EWT is the source of the problem.

 

Eyewitness testimony may not be the BEST evidence. But in a sense, it's the most important evidence because you need someone to tie the accused to the scene of the crime.

 

When I was a prosecutor, we had to dismiss many a DV case because the abused would refuse to comply with a subpoena to testify (back together with the Defendant, scared about the consequences, etc.). The officer's testimony as to what the victim told him is inadmissible. So without that eyewitness that actually IDs the person, the State can't meet their burden.

 

Eyewitness testimony IS important, but it's probably equally important that defense attorneys are schooled in some of the unreliability of eyewitness testimony and that jurors are advised to understand some common sense issues with eyewitness testimony.

 

Taking the example you cited a couple posts back about the mistaken ID by a rape victim who was 100% sure that she had ID'd the right person, that's an extremely difficult situation. She is a witness to the crime, she should be allowed to take the stand and her testimony is going to be extremely powerful. It's a tough sell for the defense attorney to have to say to jurors, "don't think emotionally, think scientifically" and ask them to ignore that powerful testimony.

 

Better education of the police is absolutely a must though.

[StrangeSox]

I don't take issue with what you're saying. That Ronald Cotton case is the textbook example because of how difficult it is to resolve it satisfactorily especially in the pre-DNA era that the case took place in.

 

edit: well there was some pretty important evidence in favor of Cotton that wasn't allowed at trial, but it still represents a strong example of the dilemma.

Edited May 24, 2012 by StrangeSox