To Free the Truth

A pointing finger of blame has a powerful hold on even the most informed and intelligent of juries.

                                        –Dr. Elizabeth Loftus

It astounds me that anyone, especially in a court of law, can still put so much weight on eyewitness testimony. Our system recognizably puts incredible faith in the accuracy of a person to see, perceive, and recall events and people. The very thought is rather disturbing. With all the current information available about the fallibility of human memory, you would think people would recognize the need to take such testimony with a grain of salt. This simply isn’t what happens, though. In a mock trial study conducted by Dr. Elizabeth Loftus, mock jurors were presented with a murder case. In the first trial, prosecutors presented circumstantial evidence alone. Conviction rates were less than 20%. With the addition of an eyewitness, conviction rates increased to more than 70%. Even when that witness had 20/400 vision, which is far past the mark for legal blindness at 20/200, conviction rates were still 68%. That alone speaks volumes about the impact a witness can have, even an unreliable one. It is imperative, though, that juries recognize that misidentification can and does happen as a result of the imperfect processes of our memories. Without doing so, there is a clear danger that anyone can be wrongly convicted of a crime–an ending that can lead to tragic results.

One of the biggest problems here is that most of society has no real concept of how our memories operate. These misconceptions greatly impact a jury’s ability to fairly judge a trial in a court of law–especially in cases where the defendant’s life is on the line. We do not, as popular belief would have it, store images and events like a video recorder to be played back whenever we feel the urge or need to use a particular memory. Instead, long term memories are placed in mental drawers. These drawers are tightly packed and are constantly rifled through in search of this information or that. Things are unloaded, milled about, and replaced in no particular order. As Dr. Loftus states in her article Witness for the Defense: The Accused, the Eyewitness, and the Expert Who Puts Memory on Trial, “As new bits and pieces of information are added into long-term memory, the old memories are removed, replaced, crumpled up, or shoved into corners. Little details are added, confusing or extraneous elements are deleted, and a coherent construction of the facts is gradually created that may bear little resemblance to the original event.” Mistakes are inherent, too, because “we consciously fill in any gaps in the information with inferences to make the memory whole.”

Memories both diminish and grow. The initial perception fades. With each recalling or retelling of the information, the memory is changed. Each time later events are stored in the drawer on top of that initial memory, things change. According to Dr. Loftus, “We interpret the past, correcting ourselves, adding bits and pieces, deleting uncomplimentary or disturbing recollections, sweeping, dusting, tidying things up.” Memory, then, is not a permanently fixed part of our human processes. It is a constantly shifting and changing reality. Memories often hold a great power over us in this way even to the extent that we believe we saw something we did not.

Memory should also be understood to occur in 3 stages. Mistakes or errors can occur at each of these stages alone or in combination. The first stage involves perceiving and encoding the information to be stored. There are many factors which can greatly affect how we perceive, acquire, and encode information. Event factors have enormous power over perception. In terms of witnessing a crime, the lighting, distance between the witness and event, the duration of the viewing of the event, arousal/stimulation/stress levels, presence of a weapon, witness’ intake of prescription medications (e.g. Xanax), existence of prior expectations, personal biases and more affect the way the crime is perceived.

The second stage involves storage. The storage of information is affected by both decay and interference. Decay is just the natural loss of information over time. Memory is not static. Forgetting is fact. Interference occurs when new information replaces old information. This can be caused by misleading questions, suggestibility, and more. A study by Gorenstein and Ellsworth showed that the likelihood of an eyewitness correctly identifying faces was decreased after they viewed mugshots. Dr. Loftus also conducted a study in which participants viewed a car crash and were then asked several questions. One of these questions involved false information about a barn–there was no barn in the film. When questioned a week later, 17% of the participants remembered seeing a barn. Even the tiniest bit of new information has the power to corrupt and change a memory. Police questioning, when constructed the right way, can certainly alter the original memory leading to misidentification.

The third stage of memory is retrieval. This stage involves recalling the information we’ve stored in our memory drawers. Again, suggestive questions can have a great impact here as can feedback from investigators. Dr. Loftus conducted yet another study about memory in which participants were asked to view a film of an auto accident and were then asked to estimate the speed of the approaching vehicle. Some participants were asked how fast the car was going when the two vehicles ’smashed’ together while others were asked when the vehicles made contact. The first group answered an average of 40.8 mph while the others answered 31.8 on average. While this doesn’t seem like a great difference, depending on the speed limit in the area, that 9 mph difference could make or break the case in a civil trial or even possibly even a vehicular manslaughter case. Positive feedback can also change the memory. A study conducted by Wells and Bradfield asked participants to watch an 8 second security camera video taken at the scene of a real murder shows a male walking into a store. Right after he passes the field of the camera, he shoots and kills a security guard. The video was of bad quality but was slowed considerably to allow the viewers to intake as much as possible. Participants were then asked to identify the person in  a 5 photo lineup that did include pictures used during the actual investigation but not of the true perpetrator. All participants were told the gunman was in the photo lineup and each one layed finger on 1 of the 5 photos. The participants were divided into 3 groups–no feedback, negative feedback, and positive feedback. After identifying a suspect, each person was asked how sure they were of their choice and about how well they could see the perpetrator and make out the details of his face. The feedback was enough to alter information. Those who were given negative feedback were only certain of their choice about 15% of the time while 50% of the positive feedback group was certain they had identified the right man. Almost all the participants stated that the feedback had no effect on their certainty level, yet there is an obvious difference.

There are other factors too which can affect our memories. In a criminal investigation, we are affected by our own eagerness to please investigators. There is often a reward we gain from this and we attempt to obtain it even if that reward is simply thinking good of ourselves or gaining the respect of the investigator questioning you.  Even when the witness isn’t sure about an identification they will still try hard to make one and often choose a person who best fits their perception of the criminal. All too often, that choice is wrong. Also, when we’ve made an identification, even when wrong, there is very little chance that identification will be recanted. We have constructed a new memory and it has taken hold replacing the actual sequence of events. Unconscious transference is another issue. This occurs when a witness will identify a person they have seen previously or see regularly as the perpetrator in a crime. A study conducted by Robert Bukhout in 1974 shows how this occurs. An assault was staged in view of 141 observers. Several weeks later, these observers were asked to identify the person in a 6 photo lineup 60% chose the wrong person. Of those who misidentified the perp, over 60% chose someone else who was in the crowd at the scene.

It is or should be reasonably easy to see the flaws of relying on eyewitnesses in a case. Juries have historically put too much emphasis on this kind of evidence leading to far too many wrongful convictions. In a study of 65 such convictions performed by Edwin M. Borchard, 45% could be attributed to false identification. In another similar study by Arye Rattner in 1983, out of 200 erroneous convictions, 52.3% could be attributed to misidentification by eyewitnesses. Of course, it’s not saying that all or even most witnesses intentionally lie, but they are human and it’s accurate to say that human memories have high chances of being completely wrong. When you’re discussing cases involving the death penalty, it must be pointed out that a mistake by a witness can’t be reversed. The person doesn’t go to prison for a few years and return home. That person is strapped to a bed and injected with a combination of drugs which permanently stops the processes of life. A tragic end for them, for those that love them, and for the entire system as justice as tossed in the garbage.

So, how does all this relate to a case like Robert’s? As you’ve likely read in his story, the state’s case against him was almost solely based on the testimony of 5 inmate witnesses. For one, as we’ve related, each and every one of those witnesses were offered rewards for testifying. The obvious assumption here is that these 5 people lied in order to get ahead…to profit, persay, off the TDCJ’s focus on Robert. If, for one reason or another, that seems hard to believe, then simply look at the facts presented here. Take into consideraton that 1 of his accusers saw him commit the crime yet this person had obvious vision problems. He couldn’t identify Robert correctly to begin with, pointing, instead, at the attorney seated at the defense table. He couldn’t correctly identify Robert until he was about 5 feet away from him…I wouldn’t have counted on his ability to see the crime as it occurred and correctly identify the witness. He probably had no idea what he was looking at…if he saw anything at all. Knowing that any legitimate witness has a great likelihood of being wrong, how could anyone convict when no physical evidence can be found to link the suspect to the crime? It’s just one more thing that doesn’t add up.