Eyewitness Misidentifications

Episode Notes

Transcript

Michael Semanchik:

How easy is it to remember someone when you meet someone for the first time, do you instantly recall everything about them? What was their name? How about their face? Do you remember them clearly after walking away? Would you still recognize them months later if you saw them in a different city, perhaps at an airport? For those of you who have met the extended family of a significant other or traveled to a conference for work, you know exactly what I’m talking about. Even with advanced notice, it can be very difficult to remember personal details like faces and names, but how about when things happen suddenly, unexpectedly and violently? What happens if you don’t even get the chance to talk with someone because they attack you? Or perhaps you were the bystander catching a brief glimpse of the perpetrator running away, experiencing and witnessing traumatic events can overload the senses and our abilities to process that information as our brains rapidly try to make sense out of crisis. A lot of details blend together For those victimized by a violent crime, the ability to remember might be at odds with the mind’s survival instinct of forgetting, and that’s what we’re going to talk about in this episode. I’m Michael Semantic, executive director of the Innocence Center, and this is Eyewitness Mis identifications

Musician & Exoneree William Michael Dillon:

♪ Spent most of my life in prison chasing dream call justice, chasing our dream, chasing a dream. Want somebody please my peace. Want somebody, please set me free. ♪

Michael Semanchik:

We’ve represented and exonerated wrongfully incarcerated people who were convicted on the basis of false identity. One of the most memorable cases that we worked on was the misidentification of Uriah Courtney, whose story we heard about in the DNA episodes, but sadly his story is but one of many. Rolling Adams, Reggie Cole, Jason Kindle, Adam Riojas, Timothy Atkins, Jason Rivera, Von Dell Lewis, guy Miles Louise Vargas and Raphael Madrigal are other notable cases that we’ve worked on together. They served 173 years behind bars for crimes they didn’t commit because somebody misidentified them. Eyewitness misidentification are one of the leading causes of wrongful convictions in the first 325 DNA exonerations. False Id accounted for 72% of the wrongful convictions, and those are just the cases we know of where we had DNA evidence to scientifically someone’s innocence. That leaves us to wonder how many innocent people remain in prison because their case file does not contain DNA evidence. We may never know. Most people think there’s no way they could be misidentified as a criminal, but we see it every day with our clients Being falsely accused can happen to anyone. Uriah Courtney was at work surrounded by coworkers when someone else kidnapped and raped a minor and despite his solid alibi, he was still identified as the perpetrator. That’s how influential mis identifications can be.

Uriah Courtney:

My name is Uriah Courtney. I got sentenced to 25 years to life. I believe it was a life sentence, and so they used my photo from my driver’s license and showed it to the victim, and I guess they put that in a six pack photo lineup. The victim did pick out my photo, but she was not a hundred percent sure. She said something like looks like him, 70% sure, something to that effect. I just told them that they got the wrong guy and that somebody went on to commit another crime. So if they had gotten the right guy to begin with, there would be at least one less victim out there.

Michael Semanchik:

That last part is especially frustrating. By the time law enforcement finally caught up with the real perpetrator, there were more victims. All of that suffering. Uriah is suffering for eight plus years in prison. The suffering of new victims, the suffering of families, all of it could have been avoided if law enforcement had been able to arrest the guilty person from the beginning. But Uriah is not the only exoneree to be falsely convicted due to misidentification. Another notable case is the Luis Vargas case. Luis served 16 years behind bars for someone else’s crime of rape, kidnapping, and sodomy by force.

Luis Vargas:

At the station, they give the victim a composite, right of six individuals, a photo lineup, and she looks at the sketch and she’s having trouble identifying. Someone then comes to influence. She can’t identify the individual, but then maybe you have a police officer saying, okay, well what do you think about number four? They start suggesting, and I know because I have seen this happen time and time again, and they start making suggestive remarks. What do you think about number four? I happen to be number four, whatever, right? What do you think about number? Doesn’t he look familiar? Doesn’t he look like the individual? The victim went ahead and identified me.

Michael Semanchik:

Misidentification destroyed lives and they happen far too often. Just like so many, if you happen to be in the wrong place with the wrong face, you too could spend decades behind bars for a crime you had nothing to do with. Courts and investigators are well aware of how inaccurate eyewitness identification can be, especially if it involves a stranger, and that can be even more pronounced if the stranger happens to be of a different race. Setting aside any notions of racism, studies show that people more easily distinguish facial features of their own race compared to members of a different race. Compound that with a traumatic event where a victim is fearful for their survival and even the most acute observations may not be enough to prevent a false identification. This is exactly what happened to Jennifer Thompson in 1984 when she was raped while attending Elon College in Elon, North Carolina. We now catch up with Justin Brooks, founder of our California Innocence Project to discuss what happened that night and how Jennifer could have been so sure but still got it so wrong when trying to identify her attacker.

Justin Brooks:

So Jennifer Thompson’s story is one of the most remarkable and important stories in the history of wrongful convictions. She was a teenage college student. She was home at night studying by herself and her telephone line got cut in her house back when everybody had wired phones and a man entered her house. It was a black man, she’s a white woman and she offered him money. She thought he was there to rob her and he said he wasn’t interested in that and what he was interested in was sexually assaulting her and that is what happened. So he raped her and while this guy is literally raping her, she was really focused on him. She was looking at his face and she was trying to remember all his features because she knew at a later date she was going to need to identify him and she wanted to remember everything.

He stayed in the house for a long period of time. Eventually she said to him, let me go to the kitchen. I’ll make you a drink. And he let her go into the kitchen and she ran out the front door and got away. And the entire time through this sexual assault, Jennifer really tried to focus on his face. Even while she was going through this incredible trauma as a young girl, she was trying to identify him. And that’s what’s so powerful about this story because you have a very smart young woman who intentionally tries to make an identification during the crime. She said, I’m going to survive this attack and I’m going to put this guy in prison and so I’m going to remember his face. But what happened was the police, in doing their identification procedures strongly suggested to her that it was Ronald Cotton and he ended up going to prison for a very long time. As a result,

Michael Semanchik:

Although Jennifer had more time to see her attack, her factors arose that kept her from making a correct identification. None of these factors were Jennifer’s fault. They happen to people in her situation all the time. Unfortunately, courts and juries don’t know enough about them to be skeptical. The first factor, and as we just heard, Jennifer was in a traumatized state and that notoriously makes accurate identifications difficult. The second her rapist was a different race. We’ll talk more about this later, but studies show that people regularly struggle with cross-racial identifications. Third and most prominent was suggestive influence from the investigators as we’ll hear shortly, even when investigators follow police procedures, they can still cause a witness to falsely identify someone. We’ve seen it happen over and over again. An uncertain and doubtful witness suddenly becomes 100% sure they’ve identified the correct person. Here’s more from Justin about how the investigators caused Jennifer Thompson to pick Ronald Cotton.

Justin Brooks:

And it starts with the simple thing of she and her head when they were putting the lineups together, thought, well, they must have the guy in custody because they’re calling me to come down. She had to drive a long way to get there. And so when she looks at the lineup, she’s thinking, okay, the guy is in this lineup. And then when they do the lineup in any sort of suggestive way, it can suggest who the person is. Now, in Jennifer’s case, it’s hard to know exactly what the suggestibility was, but one thing we’re sure of is the officer, when she identified Ronald Cotton, confirmed to her that she had the right guy. And this is something we see all the time where even when the police do the procedures correctly and they get people who look very similar and they don’t say anything to them about who they think it is, they often do this confirmation at the end of the procedure where a witness can go from it kind of looks like number three, and then the officer says, good job.

We got ’em. And now by the time that witness comes to court, they’re pointing at the person saying, I’m a hundred percent sure it’s number three. And that’s what the jury hears. The jury doesn’t see what goes on when the identification procedures taking place, and that’s why one of the things we’ve been pushing around the country is to videotape all identification procedures so we can see exactly who’s in the lineup and how they looked and were they laughing? Were they smiling? Were they saying things and we know exactly what was said within the room where they’re making the identification. So we know if the officers saying, take a good look at number three, we think it’s number three, and that’s the obvious mistakes, but what can be just as powerful is the officers silent. But the moment that the witness ID someone, they confirm to them they got the right person, they’ll also might say things like, okay, well we’ll close the case now.

Okay, we’ll take this guy into custody. There’s so many things they can say inadvertently that can bias the whole process, and that’s very hard to police because sure, there’s a small percentage of police officers that are just out there doing bad work. They’re corrupt, they’re setting people up, they’re fabricating evidence, but there are a very small percentage of police. Most police officers get up every day, put their pants on and try to do the best they can. So it’s much more insidious the idea that police officers don’t even know they’re affecting the procedure. And that’s exactly what happens with that kind of confirmation bias.

Michael Semanchik:

It’s wild that somebody can be so sure they’re going to make a proper identification and then something so subtle as a confirmation that you pick the right person can have an impact on your brain to make you think that is the person that did the crime against you, even though you were so sure when you were staring at their face and trying to remember the details.

Justin Brooks:

Yeah, and another thing about Jennifer’s case, which is really powerful, is even after they realized it wasn’t Ronald Cotton who committed this crime even after DNA exonerated him and they realized it was this guy pool who actually committed the crime. Jennifer talks about how Ronald was still the face in her mind even when she knew he was innocent and even when she knew this other guy did it, and when she went to court and they brought the real guy in who did the attack, she said she had no emotional response to him. Wow. So that’s just incredibly powerful that they could actually suggest it’s this guy implant that in her brain and even after she’s gone through this horrible rape, she’s still not connecting it up with the guy who did it. She’s connecting it with the person that the police suggested did it.

Michael Semanchik:

That’s how powerful suggestive influence can be. It can be so convincing that a victim will not remember the person who actually harmed them. It can replace real memories with fake ones. The human brain is a complicated thing. We are just beginning to learn its nuances and unfortunately, countless innocent people will suffer until we understand much more.

Another challenge for Jennifer Thompson’s identification was that it was cross-racial. As we mentioned before, it has been scientifically shown that people have a difficult time recognizing people who are not of their same race. This difficulty is experienced by every racial group and has nothing to do with racism. It’s a built-in and necessary survival mechanism, one that helps children identify their own families as opposed to a different group. Despite having a sound scientific basis, attorneys are reluctant to bring this up in court because they fear possible blowback for discussing it. Justin Brooks is also an expert on cross-racial identifications. He does a nice breakdown about why cross-racial identifications are so difficult to get right.

Justin Brooks:

Okay? The simple answer is people are not good at identifying people, not of their own race, but the more complex answer is that children in the first four years of their life, that’s when you learn most of what you learn in your life. And anyone who disagrees with that has not had children because you see in the first four years, they not only learn an entire language, some of ’em learn two languages. They learn how to walk, they learn how to manipulate their hands, they learn about what a million different items are. They’re figuring out spaces and how much weight to put on their foot to counteract the gravity of the center of the earth. There’s all these things going on. It’s just nonstop learning, learning, learning. And one of the things you’re learning in those first four years is your facial recognition software. You’re literally coding it.

And when babies are first born, they can recognize their mother right away because they’ve been part of their mother and they know the sound of their voice. They often know the sound of the voice of their father that’s been around, but they have to develop that ability to identify people and see one person as different from another so that they can very quickly look at their eyes, their nose, their mouth, and immediately make recognition. Well, what happens is if during those first few years your mom’s white, your dad’s white, your brother’s white, your sister’s white, all the people you’re exposed to are white, you will not be good for the rest of your life at identifying non-white people. Now you can get better at it, and I always use the example that my parents dropped me in a Puerto Rican high school when I was 12 years old and all the way through high school I only saw Puerto Ricans.

I was the only gringo in my high school, so I had a lot of exposure, but even with that level of exposure, and even though to me all Puerto Ricans don’t look the same, I’m still not as good as someone who’s Puerto Rican at identifying Puerto Ricans, and it’s not racism, it’s just simple fact of how our brains work. The more exposure you have something, the more easily you can recognize it. And so with cross-racial identifications, we see just horrible cases where it’s almost just like a random guess in some of ’em. Particularly we see with Caucasians identifying Asians a lot of times they can’t even identify what country they’re from. They can’t really distinguish between Chinese and Japanese people who look profoundly different to someone who’s Asian. But non-Asians, particularly American Caucasians, struggle with that. People don’t think that you can be convicted in the United States on a single id, and the truth is you can. We’ve walked several people out of prison who are identified on cross-racial identifications, so I have almost no confidence in cross-racial identifications unless the victim really knew the person.

Michael Semanchik:

As we discussed at length, Jennifer Thompson really believed that she saw her attacker clearly, and it was not until the DNA evidence scientifically pointed to someone else that she was forced to acknowledge her misidentification. She’s not alone in this experience. Let’s explore the reasons why this happens to an eyewitness. Professor Wixted is a professor of psychology from University of California San Diego. He is an expert in episodic memory and cognitive mechanisms for how people process and remember faces and events. I talked with him about the reasons people fail to remember a face accurately.

Dr. John Wixted:

So I’ll tell you some things that affect both recall and recognition. So for example, duration of exposure. If you only saw it for a split second versus you saw the crime unfold over 10 minutes, well your memory’s going to be a lot better if you watched it unfold over 10 minutes than if you only saw it for five seconds. Distance between the witness and the perpetrator, the farther the distance, the less able you are to identify who that person was. You were just too far away to see their face. Cross race. It’s harder to distinguish between faces of a different race than between faces of a same race as well established high stress. If stress is too high, you might not be able to encode what’s happening.

Michael Semanchik:

Another factor that can play a role is the use of weapons. When a weapon is used, perpetrators can blend into the background and basically become invisible to the victim. In effect, the mind is so fixated on the threat from the weapon that it will look past who’s holding it in an effort to survive. This happens so often that there is a name for it. It’s called weapon focus, not a very creative name, but an app description. Nonetheless,

Dr. John Wixted:

Weapon focus makes you less likely to form a memory of the perpetrator. So you’re looking at the gun, you’re not looking at his face, and so when they later put his face in the lineup, you’re not going to recognize him even if he’s guilty. So it makes memory worse in that sense, it does make memory worse. It makes you less likely to correctly identify the guilty guy.

Michael Semanchik:

As John mentioned, factors like weapons, stress, duration of trauma and distance can affect the mind’s ability to perceive accurately. The mind under those circumstances may not be recording information correctly, and so the witness might not have seen what they thought they saw, but the accuracy of those recorded memories is just a starting point for a proper identification. The mind must also correctly retain and then later recall those same memories and as we’ll soon hear, a lot of things can get in the way of that, including questions from investigators.

Dr. John Wixted:

All these things affect memory. The worst the estimator variables are, the poorer memory is going to be. What I’m going to say is to a large extent that’s completely irrelevant to what we’re trying to decide. We’re not trying to decide we what makes memory worse or better. We’re trying to decide, given that they have a memory, how likely is it to be correct, which is a completely different question. That’s the question of interest, and what illustrates that is that for a lot of estimator variables, this is true for both recall and recognition. On the first time you test a witness’s memory properly before it has been contaminated, and sometimes it’s contaminated before the first test. But let’s just imagine a scenario where it hasn’t been.

Michael Semanchik:

John just referred to something called contaminated. A memory gets contaminated when a witness starts using false memories to fill in the gaps for things they can’t actually remember. It could be a small detail or something critical for the investigation. The worst part is that the witness does not realize they’re doing it. This can occur when investigators probe a witness’s memory for details and inadvertently make suggestions while asking their questions. As an example, let’s say a witness is being interviewed by a detective who is investigating a murder that took place inside a store at night. Although the witness did not see the actual killing, they did see the suspect in front of the store. Let’s also say that if the detective can prove that suspect was in front of that store on Thursday night, it proves the suspect is lying about their alibi, and so is probably the person who killed the victim.

The only problem is that the witness does not actually remember the exact night when they saw the suspect. So instead of asking the witness, do you remember which night you saw the suspect in front of the store? The detective asks, did you see the suspect in front of the store on Thursday night? The witness wants to be helpful and replies, yes, without really knowing the exact night, but figures the detective already knows. And just like that, the false fact is added to their recollection of events and the witness has no idea it happened. Little things like the way you phrase a question can make all the difference in the world. Here in our example, the question, do you remember which night you saw the suspect in front of the store? If the witness does not know, they will answer no, and the recollection will match that answer.

Everything remains consistent, but if instead the question is phrased, did you see the suspect in front of the store on Thursday night? There is a much greater possibility that the witness might answer yes, and so that false fact becomes part of the record and possibly will get emblazed in their recollection. As weird as that sounds, sometimes a witness will start believing a false fact is actually part of their real memory. Just like what happened to Jennifer Thompson when she falsely started remembering Ronald Cotton as her attacker, even after DNA evidence proved it wasn’t him. It might seem incredible, but that’s how our minds work, and that’s why investigators have to be careful not to inject their suspicions into an interrogation. Investigators want to get as much information as possible without contaminating the memories of witnesses. Depending on the situation, that can be a very difficult line to straddle. Here’s more from John about testing memories. For the first time

Dr. John Wixted:

You’re testing their memory for the first time, you’re doing it in a way that over the decades we’ve learned to do it so as not to get them to say something they don’t want to say. They were just testing their memory. What you see is that when the estimator variables are poor, the witness knows that they don’t have a strong memory.

Michael Semanchik:

They account for it themselves,

Dr. John Wixted:

They do. They say, I don’t know, or maybe that’s his face, but I’m really not sure because they know that I’m not getting a strong memory match signal between that face and the lineup and the representation in my brain. It has faded, so I’m not getting a strong memory match signal, and so I can’t identify the guy in the lineup. And so memory’s worse in the sense that, yeah, you’re not even going to recognize the guilty guy, not in the sense that you’re going to randomly pick a innocent guy who doesn’t match your memory and say, I’m positive that’s him. That’s not what happens after a long retention interval.

Michael Semanchik:

That last point is very important. As a general rule, a person who witnesses a crime is not likely to implicate an innocent party, at least proactively. Where things can fall apart is when investigators try to probe the memory of that witness. As you’ll hear shortly, different types of memory react to questioning in different ways. Over the years, law enforcement has enacted different procedures to help avoid contaminating memories. Some memories are based on recall, like what can you remember from a given day or a specific event? Other memories have to do with recognition. Do you recognize this person versus that person? Here’s more from John about how all of that works.

Dr. John Wixted:

I’ve read a lot of eyewitness expert reports, and it usually goes something like this Memory doesn’t work like a videotape. You record only part of what you see and then you reconstruct a lot of it, and that allows errors to creep in. But that’s not how I tell the story of how memory works. The first thing one has to do and might even be the most important thing, I’m not sure, is to separate out different ways of testing memory, because the rules that govern them are completely different and they tend to get conflated. And that leads to some of the biggest errors in eyewitness identification. So I can test your memory by asking you to recall details, pull those details up in your mind. What did the guy, what was he wearing? Where did the crime happen? Things like that. That’s recall or separately. I can test your memory by recognition.

I can show you some faces in a lineup and ask you, is any of these guys, the guy you saw commit the crime? That’s recognition, and it’s critical not to conflate the two ways of testing memory. They each have the rules about how you test memory so as not to contaminate it, and so as not to lead the witness to say something they don’t want to say. There’s rules both when you’re interviewing somebody, testing recall, or showing somebody a photo array, testing recognition, memory, and there’s separate rules that govern that, but in both cases, it’s been worked out over the years how to do that. A lot of hard lessons learned, a lot of tragic errors, and so we now have a pretty good idea how you conduct a police interview so as to get at their memory without changing their memory, and same with a police lineup.

Michael Semanchik:

So just a quick recap about recall memory versus recognition memory and how law enforcement has to act in different ways to avoid contaminating either type of memory. Recall memory comes from pulling stored information from the brain. Perhaps it’s a detail like a name or a date, or maybe it’s remembering what happened during a crime. To properly probe recall memory, investigators should avoid supplying needless detail to the witness when asking questions. Instead, the investigator should phrase their questions to be more open-ended like, what did you see? What happened? Or when did that occur? By doing that, the investigator is testing what the witness can actually remember. The witness is less likely to fill in the memory gaps with information given to them by the investigator, like in our Thursday night Murder. Hypo by contrast, recognition memory is about your ability to recognize previously encountered people or objects to properly probe recognition.

Memory investigators show witnesses, images of people or objects to compare. Ideally, they include images of people or objects that are similar to each other. The goal of that is to test the strength of a witness’s memory to ensure they’re making a correct identification through recognition, and as we heard about in the Jennifer Thompson case, recognition, memory can also be contaminated. To illustrate how that happens, we’ll use a nonverbal example. Let’s say a detective strongly suspects that a man named Kevin is the murderer. Kevin is not the murderer, but he has similar physical features to the actual killer. Maybe they have the same build, same eye color, or the same race. Perhaps they have the same haircut and color. While interviewing a witness, a detective presents a photo lineup of suspects, and each one is a different race than Kevin. The detective asks the witness, does anyone here look like the killer while unconsciously nodding towards Kevin’s picture?

Under these circumstances, an unsure witness is much more likely to identify innocent Kevin as the murderer. You have a detective nodding at one of the pictures. No one else in the lineup looks anything like Kevin. The witness might also assume that the police successfully captured the real killer. After all, why would they be looking at pictures of innocent people? From the witness’s point of view, there is only one person who looks like the killer innocent Kevin. By contrast, let’s say the same detective this time without nodding at Kevin’s picture, lays out images of several people each the same race as Kevin. Perhaps the photo lineup includes a couple individuals who kind of look like Kevin. In addition, the detective gives a disclaimer. It is possible that none of the people here are the killer. In this latter hypo, an unsure witness is far less likely to falsely identify Kevin because other people in the lineup bear a slight resemblance to Kevin. The witness will have to be very sure before they ID him. In addition, the officer is not making suggestive nonverbals by nodding at one image versus another. The end result is that the detective is more accurately testing the witness’s actual recognition memory. And innocent Kevin is spared the fate of false conviction.

We’ve already discussed how undue influence from investigators causes false identifications. The good news is that it can be fixed with proper training. But what happens when a witness is just plain wrong and it implicates the wrong person? The witness is 100% sure, but they are 100% wrong. This is where experienced from a good investigator is critical, although excellent training certainly helps. It’s not enough. An experienced investigator is much more able to discern accurate identifications from false ones. That is because they’re able to see the entire picture and ask the critical follow-up questions that flush out those key details. I talked about this exact thing with retired Los Angeles detective Greg McKnight, who served 33 years on the force with about 23 of those years as a detective, he worked on at least a hundred murder investigations. We discussed the vital partnership of good training and experience. Here’s Detective McKnight telling us how his many years on the job allowed him to see that five separate witnesses were misidentifying the same person.

Detective Greg McKnight:

And a good example was we had a cash and carry. Let’s just say it’s a version of a Costco except in poor areas. Okay? So it’s all cash, and we had a robbery. And during the robbery, the security guard who was using the bathroom came out in the course of it, and it resulted in a shooting and the security guard was killed. So we start our investigation and we have a ton of witnesses as you can imagine. We’ve got Asians, Hispanics, blacks, whites, and so we start digging in and we come across the thirties. Rollin 30s are really infamous for doing these type of capers.

Michael Semanchik:

The Rollin’ 30s are a street gang operating out of Los Angeles. They were originally founded in the 1960s and have since spun off into a variety of clicks.

Detective Greg McKnight:

So we dig in and we find individuals that have done these type of robberies in the past, and we have a composite done. And lo and behold, we find this one individual who’s been arrested for a cash and carry robbery a year prior, and he looks exactly like the composite drawing. So we throw ’em in a six pack, we get five IDs.

Michael Semanchik:

It’s a lot,

Detective Greg McKnight:

Yeah, with five IDs from an Asian, a Hispanic. So with that, obviously we have enough probable cause. We write a search warrant and we scoop the guy up and we start interviewing him. And my partner’s like, dude, I don’t know man. I don’t think this is the guy. And so he gives us his alibi. And the biggest problem with the gang members is they lie when they don’t need to lie, which kills him, especially when you’re as an investigator. Why are you lying about this? Make a long story short, he gives us an alibi, and my partner and I run it down and it’s bullshit. He wasn’t where he said he was, and it’s like, gosh, it doesn’t feel right. So anyway, so we end up arresting him, but then we go to the DA and we end up getting it an 8 49 B one rejected for further investigation.

Michael Semanchik:

California penal code section 8 49 B one allows law enforcement to release arrested people when they don’t think they have sufficient grounds to file a complaint against them. That’s what Detective McKnight was trying to do, but the DA wasn’t seeing it that way.

Detective Greg McKnight:

You talk about people saying, dude, what are you doing? This is the guy look at, and it was just one of those things, and he wasn’t the guy. We literally found the guy who was involved in it a year to the day of the incident, and literally he took us to the scene. We did a walkthrough with him. I mean, he copped out to everything in that situation. When you have five people that are going to get up and they’re going to testify and they’re adamant, no, this is the guy. And when you look at who we ended up arresting, he looked just like the first individual and looked just like the composite. So that’s the thing. You can be trained, but it’s that experience where you really start to understand folks, we definitely don’t see what we think we see. And the unfortunate reality is there are probably people that are in jail that have been

Michael Semanchik:

IDed. Imagine how much easier it would’ve been if Detective McKnight simply let the wrong person get convicted. There were five separate identifications pointing to the suspect who was a known gangster. Although it’s difficult to sympathize with this particular person, detective McKnight did the right thing. Even those who routinely break the law are entitled to due process. We depend on law enforcement to get it right 100% of the time. Even with the best of efforts and intentions, that is simply not possible. Our criminal justice system is an imperfect institution run by imperfect people. Unfortunately, that means innocent people will get ensnared by it through no fault of their own. So what can we do to fix things or at least make them a lot better? Detective McKnight has some thoughts.

Detective Greg McKnight:

The technology and with DNA and all of the advances that we’ve had, you can’t just rely on a single id. In my opinion, it has to be corroborated. I wouldn’t feel good about showing a six pack to a stranger, and that’s solely the only thing. And the truth of the matter is we’ve had who we thought were the suspect, and guess what? We’ve shown six packs. They haven’t been IDed, and it turned out they weren’t the suspect. So you can’t have this mindset, oh, he picked the wrong guy. Well, maybe they didn’t pick him because we have the wrong guy.

Michael Semanchik:

One thing that can be difficult to accept is how an honest, intelligent person can be so wrong about their recollections. Surely they have to be lying. The truth is people can both be telling the truth and also get it totally wrong. Confidence does not equal accuracy. As we’ve discussed, there are many things that get in the way of people remembering accurately. Things like personal trauma, lighting, timing, race, and investigator influence can all play a factor.

Detective Greg McKnight:

I’ve seen where five people are standing right next to each other, and when you take an account as to what they witnessed and the description that they provide, they’re so inconsistent. Sometimes they’re spot on, but very rarely. And again, as technology came into play and videos came into play, you realize this person’s not lying. It’s what their recollection is, and it’s what their perception was.

Michael Semanchik:

So what should we take away from our time together? Most simply put, we should be skeptical of identifications, especially when someone’s life or freedom hangs in the balance. First, the human memory is very complicated and subject to error. Even with the best of intentions and effort, identifications of other people can be distorted by trauma, cross-racial limitations, and lack of time to observe and remember accurately. Memories can also be greatly impacted by investigators. What they ask, when they ask and how they ask all make a difference as to whether the investigator is extracting true memories versus planting false ones. Even when investigators follow procedures and ask their questions properly, there is still risk that they can inadvertently influence and answer through nonverbal communications or follow up comments to prevent mis identifications. Not only do you need skilled investigators armed with the latest training, but they must also be the benefactors of many years of experience so they can focus through the noise and nonsense to make sure the investigation is not going down the wrong path. And finally, and most important eyewitness testimony carries a lot of weight during trial. Even when experts explain the frailty of memory, a jury can easily be won over by a confident, intelligent witness who claims they saw the defendant do the crime. Sometimes they’re right, but frequently they’re wrong. We need to be aware of this and continue educating the public. You can help us. If you found this episode insightful, please recommend it to a friend. Every listen is an opportunity to change your mind.

Thank you for listening. We hope you enjoyed this episode produced and written by Laurence Colletti, audio engineering by Adam Lockwood. Special contribution of music and sound elements by real life exoneree William Michael Dillon. You can find his catalog of work at frameddillon.com. That’s frameddillon.com. Thank you to Clio for their support.

Continue Reading