False Witness 

Eyewitnesses often mistakenly accuse innocent people of committing crimes, yet most police agencies refuse to implement reforms that would limit false identifications.

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In recent years, several Bay Area police departments — including those in Richmond, Pleasant Hill, and San Francisco — have adopted the policy of using double-blind sequential photo lineups. All police agencies in Santa Clara County also use double-blind sequential lineups, and police agencies throughout Alameda County are in the process of adopting them. Police agencies throughout Contra Costa County are also considering making the reform.

This trend follows in the footsteps of the landmark legal principle formulated by the famous 18th-century English judge and jurist Sir William Blackstone, who once said, "It is better that ten guilty persons escape than that one innocent suffer." That idea — that people must not be imprisoned for crimes they did not commit — has guided Western jurisprudence for more than 250 years, and forms the basis of legal protections enshrined in our criminal justice system.

And yet most California police agencies still oppose double-blind sequential lineups. They contend that these procedures make witnesses more hesitant to identify suspects, and thus would result in fewer guilty criminals going to prison. Lobbying by powerful law enforcement groups in Sacramento also has beaten back legislation that would make double-blind sequential lineups mandatory statewide.

As a result, some innocent people will continue to suffer so that the guilty do not escape punishment.

Traditionally, people have likened human memory to a tape recorder: The brain records an event, and when someone wants to recall it, all they need to do is hit the play button. The human mind, however, is much more complex than that. Through decades of research, scientists have discovered that we store memories of past events, also called episodic memories, in multiple parts of our brain. The hippocampal complex and amygdala process emotional responses, the prefrontal cortex helps assign meaning to past events in our lives, and visual memory is created by electrical signals jumping between multiple parts of the brain. When someone wants to recall a memory, neurons in all of these segments of the brain are triggered and sent down a specific neural path.

This nuanced process is also incredibly susceptible to error. For example, psychologists have used minor verbal cues in crime-scene simulation studies to convince witnesses that clean-shaven men had mustaches, straight hair was curly, and that a stop sign was a yield sign. In other experiments, scientists have planted into people's minds false memories — sometimes as traumatic as an animal attack or a hospital stay, according to research compiled by UC Irvine social scientists. As Stanford University neuroscientist Anthony Wagner stated at a 2012 symposium on memory and the law: "The normal functioning of the brain allows for false memories to be created."

Witnesses, as a result, often accuse innocent people of committing crimes. Moreover, research shows that once witnesses misidentify a suspect as being the perpetrator of a crime, they often refuse to change their minds — even if conclusive evidence eventually surfaces that proves them wrong. "The witness is not lying; they honestly believe they are identifying the right person," noted longtime Alameda County defense attorney Charles Denton. "The problem is their own eyes can deceive them."

Furthermore, jurors often give great weight to eyewitness identifications — even when other evidence contradicts it. "Once a person has made an incorrect identification, it is very difficult to show a jury that they are probably wrong," said Badami.

Defense attorneys sometimes put experts on the stand to testify about the different factors that can cause witness mistakes. Jurors, however, typically disregard such testimony. "When you're looking at a person who appears to be telling the truth, it's very hard to take the generic instructions that they should 'take into account that it was dark,' or that 'they should take into account that it was foggy,' because you still have the witness saying, 'I'm sure that it was him,'" said Badami.

Yet despite these problems, police and prosecutors continue to rely heavily on witness testimony. Richmond Police Lieutenant Andre Hill told me that witness and victim identifications form the "basis" for solving the "majority of shooting and violent crimes in the city."

The Oakland Police Department also relies heavily on eyewitness IDs to solve violent crimes. The department's crime lab has traditionally been overwhelmed with work, so even when there is reliable physical evidence at a crime scene (which there usually is not), it's often not tested.

"We have many violent crimes, [even] attempted-murder cases, which are charged solely on the basis of a positive photo identification, and they are among the most unreliable forms of evidence that we see in the criminal justice system," said longtime Alameda County Assistant Public Defender Ray Keller, who retired earlier this month. Keller added that because eyewitness testimony carries so much weight in the legal system, when a positive identification is made, police often consider the case to be closed. It effectively "cuts short a thorough investigation," he said.

This past year, the Northern California Innocence Project helped exonerate two Oakland men who were imprisoned due to faulty eyewitness identifications. Johnny Williams was freed in March after being locked up for thirteen years for child sex abuse. His conviction was based almost entirely on a false ID made by a nine-year-old girl. DNA evidence later proved that the girl had made a mistake. Ronald Ross was also recently freed after being imprisoned for seven years for attempted murder. In that case, one of the key witnesses admitted that an OPD officer had pressured him to identify Ross; the witness had owed the officer a favor so he did what was asked of him.


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