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Unpublished Opinion

Wednesday, May 11, 2005

Eyewitness testimony

Found this interesting article about eyewitness testimony on Indefensible. I agree with alot of what it has to say. It is very frustrating when you can tell that the eyewitness picked defendant out of a small collection of pictures, probably with some uncertainty. Then they remember that face from the picture and use that to pick the same person out of a line-up, identify at trial, etc. Their certainty may grow everytime they make an identification, but that is only because the image of the defendant is now burned in their brain as that of the offender, even if it wasn't him. It is one thing if the pictures for the original photo array were selected based on the description given by the witness, but, as the article points out, often the pictures are selected based on the "gut instinct" of the police officer. Which means they pick out some guys that were arrested before (obviously, where do you think they get the pictures), likely for the same offense. Sometimes it is some guys that they know have been "active" recently based on informant chatter or the word on the street. So there is a decent chance that none of the 8 pictures is the guy that did it. What if the offender has never been arrested and therefore the cops have no photos? Never seems to be considered as a possibility. In the movies or on TV, you always see the witness going through big books of mug shots looking for the offender. I have never had a case where that happened. At least under that scenario, the witness would not be influenced by the size of the photos, the arrangement of the photos, etc. There is no easy answer to all of this. What makes it much more troublesome is that to jurors, the testimony of an eyewitness is gold. For the defendant it is iron.

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