The Problem With Eyewitness Testimony

How badly do we mess up when doing something as fundamentally human as using our eyes, words, and memories? In the case of some eyewitness IDs, very badly.
Wed May 23, 2012 7:25 pm
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Just how fallible are we? How badly do we mess up when doing something as fundamentally human as using our eyes, words, and memories?

Very, very badly. Especially when we’re under stress, when we’ve witnessed something terrible like a violent crime, and when the police are hanging on our every word—and maybe, just maybe, pushing us to finger a suspect.

That’s the conclusion of the Columbia Human Rights Law Review, which last week published an astounding 400-page e-book that says Texas almost certainly executed an innocent man, Carlos DeLuna, back in 1989, for the 1983 murder of Wanda Lopez at a Corpus Christi convenience store. The report is jammed with facts and interviews, but the takeaway is this: the single thing that ensured DeLuna’s fate was a single eyewitness, Kevan Baker, the only person to actually see the struggle between Lopez and her killer.

Police arrived and Baker told them the direction he’d seen the killer run off to. The cops fanned out and found DeLuna hiding under a truck several blocks away. They put him in the back of a patrol car, brought him back to the crime scene, and walked Baker over to the car. Police shown the light from a flashlight through the window into DeLuna’s face. “Is this the guy you seen?” asked the investigator. Though Baker was by no means certain—it was dark, he was frightened, he remembered the killer having a moustache but DeLuna didn’t--he was also on the spot. He was, he later said, seventy percent certain DeLuna was the guy; “It was really tough, you know, saying yes or no.” But there was a crowd of policemen and citizens watching. So he said yes. And he did it again in court. DeLuna, who swore he was innocent, was taken to jail. He would swear he was innocent until the day he was executed.   

The mind is a strange, malleable, suggestible thing. It makes mistakes. This is not news. All those men who have been exonerated by DNA? Three-fourths of them were sent to prison based on the words of eyewitnesses who made mistakes. Terrible mistakes.

It seems that each week brings news of another exoneration or wrongful conviction, a frightening trend  TEXAS MONTHLY addressed in its June 2012 issue with a robust roundtable discussion  featuring two prosecutors (Craig Watkins and Kelly Siegler), a chief of police (Art Acevedo) a state Senator (Rodney Ellis), a judge on the state’s highest criminal court (Barbara Hervey), and a man who spent twelve years on death row for a murder he didn’t commit (Anthony Graves). Sparks flew, unusual alliances were formed, and panelists talked about why the wrong people get nabbed, prosecuted, and sent away. Acevedo, who has been chief of the Austin Police Department since 2007, even admitted, “We’re fallible. We know there’s something called noble cause corruption. Human nature being what it is, if…the investigator knows who the ‘bad guy’ is and he’s doing one of these ‘wink-wink-nudge-nudge’ things—you want to prevent those situations.”

In other words, the state wants to prevent situations where police unwittingly prey on the dodgy memories of traumatized witnesses, all in the cause of catching vicious killers. Acevedo is talking about the police conducting eyewitness lineups, and APD now requires double-blind lineups, where the investigator cannot know the identity of the purported ”bad guy”—such as Carlos DeLuna. Ultimately, the roundtable members conclude, eyewitness IDs are not one hundred percent perfect. “Eyewitness IDs are leads,” says Judge Hervey. “They’re just leads.”  

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