Nothing is more compelling than an eyewitness who says in court, "that's him" and points at the defendant. But a growing body of evidence now shows the unreliability of eyewitness testimony -- and the horrendously wrong jury verdicts that eyewitnesses produce.
"Unfortunately, given the length of time cases may take to get before a jury, eyewitness testimony can be influenced by numerous factors resulting in a completely different version of events then what was previously known," says attorney Robert Squire of Miami. "In civil cases, they may be involved in an auto accident, slip and fall, product liability or a construction disaster. In criminal cases, they may be called on to identify a robber or describe a fraud."
Squire, a trial attorney with Akerman Senterfitt, says eyewitnesses forget 40% of what they recall in less than 20 minutes. He presented new approaches to handling eyewitness testimony at an educational program for lawyers at the Network of Trial Law Firms.
Falsely convicted by an eyewitness
Recent headlines illustrate the unreliability and damage of eyewitness testimony. In Los Angeles a man named Kash Delano Register of Los Angeles was freed this month after serving 34 years in prison. He was convicted of a 1979 murder based on discredited eyewitness testimony, in a case that had no physical evidence or a murder weapon.
The sister of the eyewitness told detectives that the eyewitness wasn't close enough to get a good look at the shooter, and was in the process of covering up a theft. Prosecutors never revealed that the eyewitness was discredited. Years later the sister approached the defense lawyers. A judge found the sister's testimony more credible than the eyewitness, who had repeatedly changed her story.
Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in nearly 75% of convictions later overturned through DNA testing, according to the Innocence Project.
According to Squire, psychologists have determined that an eyewitness is simply not taking a mental photograph of the event. "It is a complex and delicate process of perception, storage and retrieval, which is vulnerable at every stage."
He recounted a lawsuit where an employee at a donut show reported a huge fire, caused by a firecracker thrown through a drive-up window. But evidence showed it was caused by a malfunctioning receipt printer. The eyewitness was questioned at a deposition, and now said it thrown object was a Gatorade bottle. Then without warning, he changed his recollection to say he saw a Molotov cocktail. The case was dismissed.
"Experiments confirm the elasticity of memory," Squire says. "False information can be introduced into a person's recollection and later this information is reported as if it actually occurred." Witnesses pick up new information by talking to other witnesses, from social media or watching news reports, and "the potential exists for new information to contaminate recollection," he says.
Even the form of questions put to witnesses can profoundly influence the answer. He played a video of a large car driving down a test track and hitting a smaller car. The question, "About how fast were the cars going when they smashed into each other?" elicited estimates of high speed from test subjects, compared to questions using the verbs "collided," "contacted" or "hit" in place of "smashed." Asked later, "Did you see any broken glass?" the same test subjects recalled seeking broken glass - even thought it was not present in the video.
Key steps in a case
Squire says the single most important factor in getting reliable eyewitness testimony is to preserve, either in writing or recording, eyewitness statements as close in time to the event as possible.
If there is no recording, he urged lawyers to research the eyewitness, their employment, family and education to tailor questions for them. Squire says varying words like "smashed" and "collided," for example, can elicit the truth. "The eyewitness is unreliable," he says. "Your star witness may turn into an adverse witness."
But even a handwritten account may not record the truth. He cited another lawsuit where a pallet of 36 boxes fell on a man, causing him to have six surgeries for his injury. Yet an eyewitness had filled out an anonymous form saying she saw none of the boxes even strike him. She was later located and admitted at a deposition that she didn't know what she saw:
THE WITNESS: "I'm really upset that I'm, you know - but, you know, I - I did see what I saw. There's a possibility that, you know, I didn't see what I thought I saw. You know, like - you know, anything is possible. Anything is possible."
Under further questioning, she said she could not dispute her words written just after the incident. She said her memory was better months earlier than the present, and that her written statement spoke for itself.
"People's recollection of events is influenced by time, stress, environment, bias and virtually anything else which they may interact with," he says. "To protect your client, lawyers need to be prepared for anything."