Have the Eyes Had It?

From Slate.com:

Describe the last person who served you a coffee. What if I helped refresh your memory? Showed you some photos of local baristas? Pulled together a helpful lineup? Cheered exuberantly when you picked the "right" one? Now imagine that instead of identifying the person who made your venti latte last week, we had just worked together to nail a robber or a rapist. Imagine how good we would feel. Now imagine what would happen if we were wrong.

Last month, a Texas judge cleared Timothy Cole of the aggravated sexual assault conviction that sent him to prison in 1986. Although his victim positively identified him three times—twice in police lineups and again at trial—Cole was ultimately exonerated by DNA testing. The real rapist, Jerry Wayne Johnson, had been confessing to the crime since 1995. Unfortunately, Cole died in prison in 1999, long before his name was cleared.

Our eyes deceive us. Social scientists have insisted for decades that our eyewitness identification process is unreliable at best and can be the cause of grievous injustice. A study published last month by Gary Wells and Deah Quinlivan in Law and Human Behavior, the journal of the American Psychology-Law Society, reveals just how often those injustices occur: Of the more than 230 people in the United States who were wrongfully convicted and later exonerated by DNA evidence, approximately 77 percent involved cases of mistaken eyewitness identification, more than any other single factor.

Wells has been studying mistaken identifications for decades, and his objection to the eyewitness identification system is not that people make mistakes. In an interview he explains that eyewitness evidence is important but should be treated—like blood, fingerprints, and fiber evidence—as trace evidence, subject to contamination, deterioration, and corruption. Our current criminal justice system—blessed by a 30-year-old Supreme Court precedent—allows juries to hear eyewitness identification evidence shaped by suggestive police procedures. In a 1977 case, Manson v. Brathwaite, the Supreme Court held that evidence that was a product of suggestive identification procedures need not be excluded if the identification was nevertheless deemed "reliable." Five criteria for determining whether that identification could be reliable were laid out—including how much opportunity the witness had to view the perpetrator and how certain she was of her identification. In the intervening years, social scientists have called into question much of the science underlying these five factors. Today we know, for instance, that you can have a good long look, be certain you have the right guy, and also be wrong. But Manson is still considered good law.

Jennifer Thompson was 22 the night she was raped in 1984. Throughout the ordeal, she scrupulously studied her attacker, determined to memorize every detail of his face and voice so that, if she survived, she could help the police catch him. Thompson soon identified Ronald Cotton in a photo lineup. When she—after some hesitation—again picked Cotton out of a physical lineup a few days later, a detective told her she'd picked the same person in the photo lineup. As Thompson told Leslie Stahl on CBS last weekend, that assurance led her to think: "Bingo. I did it right. I did it right."

But in this case Thompson got it wrong, although Cotton served 10 and a half years before DNA evidence exonerated him and decisively implicated another man, Bobby Poole. The curious part of the story is that despite Thompson's determination to memorize every detail, when she first saw Bobby Poole in court she was certain she had never seen him before. Indeed, according to Wells and Quinlivan, "Even after DNA had exonerated Cotton and Thompson herself had accepted the fact that Poole was her attacker, she had no memory of Poole's face and, when thinking back to the attack she says, 'I still see Ronald Cotton.' "

Full article here.

Gary Wells Hompage.