Thursday, January 24, 2013


Like many trial lawyers your favorite Clearwater Criminal Defense Attorney has seen many witnesses at trial; none more effective than Eye Witnesses. While working as a prosecutor it was always devastating to deliver the final punch with the Eye Witness leaving the Defense shattered. And no wonder Eye Witnesses are so effective in trials because the Eye Witness is seen by the jury as simply a teller of truth.
Manet's Plum Witness would not be a great eye witness in a criminal trial in tampa bay florida with the absinthe in front of her clouding her memory and testimony for identification of a criminal perpetrator.
Manet, A Plum Witness
Yet Eye Witness testimony is among the most unreliable at trial. Many guilty verdicts that were proven with Eye Witness testimony have been unwound by the Innocence Project thru DNA analysis establishing Defendants' innocence. In fact the Innocence Project lists Eye Witness Misidentification as being "the single greatest cause of wrongful conviction playing a role in nearly 75% of convictions overturned trough DNA testing." 

The Misidentification comes from two categories of variables:

1. Estimator variables include simple factors like the lighting when the crime took place or the distance from which a witness sees a Defendant, also the amount of stress during a crime because of force used or the presence of firearms or trauma a witness experiences. 

2. System variables include how law enforcement officers acquire witness memory including lineups and photo packs.

As you can see the 'system variables' should be controlled by the Criminal Court System. New Jury Instructions in states such as Florida caution Jurors to be wary of Eye Witness identifications made during criminal trials. Yet one of the confounding things I often see is that Florida Law Enforcement Officers are not required to record witness statements nor statements made by Defendants. Often their notes of what was said by witnesses and Defendants are proven to be wrong.
How reliable is Eye Witness testimony as studied not only be lawyers but by psychologists? Here's an excerpt from The Problem of Eye Witness Testimony found in The Stanford Study of Legal Studies:

The process of interpretation occurs at the very formation of memory—thus introducing distortion from the beginning. Furthermore, witnesses can distort their own memories without the help of examiners, police officers or lawyers. Rarely do we tell a story or recount events without a purpose...
The act of telling a story adds another layer of distortion, which in turn affects the underlying memory of the event. This is why a fish story, which grows with each retelling, can eventually lead the teller to believe it... it is not necessary for a witness to lie or be coaxed by prosecutorial error to inaccurately state the facts—the mere fault of being human results in distorted memory and inaccurate testimony.

Clearly Eye Witness testimony should be viewed with a healthy skepticism, because the goal of a criminal trial must be to provide the Defendant with the fairest trial possible and maybe along the way, to even find the truth.

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