New York Times
December 4, 2000


When Justice Hinges on What Is Seen, and Believed


By KATHERINE E. FINKELSTEIN

She definitely saw the man stride down Madison Avenue, abruptly stop, pivot and raise his arm, holding a brick aloft like a football. Then he threw it with "immense force," she recalled, hitting a woman on the side of the head. The assailant had distinct features, including wide-set eyes and "nappy hair."

Why not believe the identification from Laura Weiner? She is an articulate lawyer who was on the street, 15 feet away by her own estimate, when someone smashed a six-pound paving stone into a pedestrian's head, nearly killing her.

A jury did believe her, and her testimony led, in large part, to the conviction last Wednesday of Paris Drake, a panhandler. Mr. Drake's lawyer says his client is an innocent victim of mistaken identity. The jury had serious doubts, too, before combing over Ms. Weiner's testimony one last time and then convicting Mr. Drake of first- degree assault.

The attack, a random, daylight assault against Nicole Barrett, 28, had all the ingredients of a legal quagmire: an intense police hunt, heavy news media coverage, conflicting witness statements, a changing police sketch, multiple suspects, jailhouse informers and a victim with no memory of the attack when she awoke days later.

Twice in two days, the divided and fractious jury announced a deadlock, obviously uncertain that Mr. Drake was the assailant. In part, Ms. Weiner's certainty finally convinced them, jurors said. And there is no evidence that she was wrong or that Mr. Drake was improperly convicted. But there will never be any scientific way to prove he was there, because, as happens in many other crimes, the attacker left behind no DNA.

Identification by witnesses has never been as controversial or vulnerable as it is now, in part because it has never been so clearly rebuttable. A growing school of research fueled by newly available DNA evidence shows that witnesses as certain and credible as Ms. Weiner are very often wrong, and that there is little correlation between their certainty and their accuracy.

Indeed, 65 of the 77 wrongful convictions overturned by DNA evidence nationwide in the last decade resulted from witness errors, according to statistics compiled by the Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University in Manhattan. And in cases like Mr. Drake's where heavy news coverage can expose witnesses to all sorts of new impressions, from sketches and photographs to theories the chances for mistakes climb.

Recent studies on how memory works show that a clear view of a crime does not work like a cattle brand, searing an image indelibly into the mind, but that impressions formed after the event, through suggestive police procedures or news media exposure, for example, can lead a witness to feel certain. And there is almost nothing more convincing to a jury than a confident eyewitness, even, according to one study, when jurors know that the witness is legally blind.

The nation's legal experts have increasingly focused on a troubling collision: eyewitness testimony can be quite unreliable and very persuasive at the same time. "It is the conjunction of those two properties that should concern us," said Gary L. Wells, a psychology professor at Iowa State University and an expert on eyewitness identification.

Over the weekend, advocates for questionably convicted inmates from around the country met at Northwestern University in Evanston, Ill., to explore ways to change police and trial procedures. Defense lawyers would like to see police lineups administered by neutral third parties and suspects presented sequentially, rather than all at once, so that witnesses are less likely to make relative judgments.

Before the early 1900's, with the advent of psychology as a science, the accuracy of eyewitness identifications was seldom challenged. But in 1902, a professor of criminology in Berlin staged a gunfight in his classroom that appeared real, and then called on his students to reconstruct the events they saw.

The results of the experiment were staggering. Although the issue for the students was what happened, not who did it, most students were 80 percent wrong in their recollections; the most accurate were about 25 percent wrong. And those numbers are about the same today, according to experts.

Academic studies have since revealed all sorts of phenomena that cloud the process of memory: poor witness identification across racial lines, "weapon freeze," in which victims focus on a gun instead of a face, and "unconscious transference," when witnesses seeking the guilty person pick a familiar face instead.

Richard A. Brown, the Queens district attorney and a former appellate judge, said that while his office had prosecuted cases that relied on eyewitness testimony, "all of us are somewhat uncomfortable with single eyewitness identification cases, for the same reason the United States Supreme Court was." Mr. Brown was referring to a 1933 case in which the court recognized that mistaken identifications accounted for more miscarriages of justice than almost any other factor.

"I am uncomfortable stopping at the point where I've got an eyewitness who said, `That's the man,' " Mr. Brown said, referring to cases that hinge on one eyewitness.

Lawyers cannot ask witnesses leading questions in court, but the police face fewer constraints while investigating a crime.

"Post-event suggestions can provide artificial corroboration," said Elizabeth F. Loftus, a memory expert at the University of Washington, in Seattle, who testified as an expert witness for the defense at Mr. Drake's trial, giving as an example the question: " `Mrs. X said that it happened this way. Do you agree?' "

In response to recent exonerations based on DNA evidence, the United States Justice Department created a committee of prosecutors, police officials, defense lawyers and legal experts, who last year published guidelines advising the police to be neutral when interviewing witnesses, displaying mug shots and presenting lineups.

A case recently filed with New York State's highest court, the Court of Appeals, by a convicted carjacker, Anthony Lee, raises the issue of what defense lawyers consider to be suggestive police work. According to the defense brief, the carjacking victim, Michael Perani, told detectives immediately after the crime that he did not think he could identify a suspect. His car had been stolen at gunpoint in Manhattan, at night, and he had seen the thief for less than a minute.

But after nine months of urging by detectives, Mr. Lee's lawyers contend, the victim selected Mr. Lee from a lineup and later testified that he would never forget his face. The trial judge prohibited the defense from calling an expert witness on eyewitness testimony, ruling that it was the role of the jury, alone, to evaluate the testimony.

The defense argues that the expert testimony could have explained that the brain records things imperfectly and incompletely, not like a video camera does. The defense wants a new trial at which the expert may testify.

In the 1970's, a series of cases dealing with eyewitness identification reached the United States Supreme Court, which grappled with how to treat situations in which the police used suggestive procedures to obtain identifications.

The court laid out general guidelines for the admissibility of eyewitness identifications: the witness must have paid attention, had a good view, given a reasonable description of the perpetrator and remain certain of the identification. A relatively short time must have elapsed, as well, between the witnessed event and a lineup.

But some of these variables, which involve the witness's judgment, do not offset the problems of suggestive police procedures, which tend to make witnesses more certain and more prone to describing their view as a good one, said Professor Wells of Iowa State.

Still, eyewitness testimony has its supporters. In closing arguments in the brick attack trial, the prosecutor, Joan Illuzzi-Orbon, told the jury that the image of Mr. Drake's face was indelibly implanted in Ms. Weiner's memory. "What else do you have in life, short of having Paris Drake on video?" she asked.

Copyright 2000 New York Times Company. All rights reserved.

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