Houston Chronicle

October 14, 2007

Value of eyewitnesses unclear
Critics charge current procedures often lead to flawed identifications

For those who work on behalf of inmates who loudly proclaim their innocence — and ask for DNA testing to prove it — the faulty identification of Ronald Gene Taylor was no surprise. The great majority of DNA exonerations have involved bad eyewitness IDs.

"Eyewitness ID reform is the No. 1 priority of people who want to reduce the number of wrongful convictions," said Edwin Colfax, state program director for the Justice Project, a criminal justice reform organization. "It is the single most important thing we can do."

Colfax said erroneous eyewitness testimony was the key ingredient in 24 of the 30 Texas cases that have been reversed after belated DNA testing. That high percentage rings true with Nina Morrison, the Project Innocence attorney who worked on Taylor's case.

"I've had 11 cases of people freed from prison, and in eight of those cases eyewitness ID was the primary or only evidence used to convict," Morrison said. "It remains among the most powerful evidence the jury can hear. It's very, very hard for jurors to disbelieve someone taking the stand and pointing the finger at someone."

Wary of new methods
Though no way of identifying suspects has emerged as foolproof, scientists have reached a few general conclusions:

• The certainty of a witness ID is no measure of its accuracy.

• People are more accurate at identifying suspects within their own race.

• Witnesses are very vulnerable to inadvertent cues from people administering a suspect lineup, who are usually police detectives.

• Certain types of lineups or instructions can lead witnesses to make a positive ID more frequently.

It is equally hard to shake the faith of prosecutors and police officers in its reliability. The fallibility of eyewitness evidence has been discussed and demonstrated for more than a century — never more so than today when science can conclusively prove it — but authorities are sometimes reluctant to back off even in the face of conflicting DNA testing.

Eyewitness evidence has been the staple of investigations and prosecutions for so long that efforts to change the way it is obtained often meet resistance from authorities. Such was the case in Texas during the last legislative session, when lawmakers objected to provisions in a bill offered by Sen. Rodney Ellis, D-Houston, that would have mandated the use of new methods.

Those methods are based on several decades of study and experimentation by social scientists. They have used all manner of subjects, from young children to the very old, as they explored the tricky world of memories and how the brain stores them.
Criminal justice reformers widely support a method known as "sequential double-blind" lineups. The witness is shown individuals or photos one by one instead of in a group. The person administering the test does not know whether a potential suspect is in the group, and the witness is informed of that.

Eyewitness evidence reforms, including sequential double-blind lineups, were recommended in a report by the National Institute of Justice in 1969. Ellis' bill ran into immediate opposition from law enforcement groups and was amended to create a working group that would come up with recommendations that were not binding. Even then, it never reached a floor vote.

Sudden recollection
In Taylor's case, the only eyewitness was the 39-year-old victim. She immediately gave police a basic description of her assailant, admitting she did not see him well in the dark room and was relying on having felt his face and body with her hands. Two weeks later, she expanded her description slightly in an interview. She attended a lineup at a police station the next week and did not pick out any of those placed in it. Taylor was not among that group.

The victim finally picked out Taylor from a videotaped lineup that she viewed on her TV almost six weeks after the crime. After seeing the tape, she said she had a sudden recollection her attacker had a tooth missing or unusually large space between his teeth. The investigating officer said it was common for victims' memories to improve in subsequent weeks.

Perhaps more disturbing was the victim's later recollection that the attacker had bumped into her refrigerator while leaving her apartment, giving her an opportunity to see him for several seconds in the light coming through a nearby window.

"That raises enormous questions about how that piece of evidence came to pass," Morrison said. "By that time they had a suspect but no physical evidence linking him to the crime. If the original statement had stood and the victim said she could not see him, the conviction could never have stood. This new opportunity to see him in the light came up only after Ronnie had become the main suspect."

Taylor's appellate attorney challenged the validity of the victim's identification. The court stumbled on the issue, however, in part because the brief did not include a copy of the videotaped lineup. The tape had gotten lost, and a dozen years later it still has not surfaced.


Eyewitness ID
Truth in Justice