Eyewitness Testimony Is Crap - Now I Have Proof

Some people gave me a hard time when I wrote this post about how circumstantial evidence was way better than eyewitness testimony. Well, now I have proof that eyewitness testimony isn't worth much, despite the fact that juries absolutely love it. In this article (requires a login) and this case I get vindication. A New Jersey court has found that:

In 2006, this Court observed that eyewitness
“[m]isidentification is widely recognized as the single greatest
cause of wrongful convictions in this country.” State v.
Delgado, 188 N.J. 48, 60 (2006) (citations omitted); see also
Romero, supra, 191 N.J. at 73-74 (“Some have pronounced that
mistaken identifications ‘present what is conceivably the
greatest single threat to the achievement of our ideal that no
innocent man shall be punished.’” (citation omitted)). That
same year, the International Association of Chiefs of Police
published training guidelines in which it concluded that “[o]f
all investigative procedures employed by police in criminal
cases, probably none is less reliable than the eyewitness
identification. Erroneous identifications create more injustice
and cause more suffering to innocent persons than perhaps any
other aspect of police work.” Int’l Ass’n of Chiefs of Police,
Training Key No. 600, Eyewitness Identification 5 (2006).
Substantial evidence in the record supports those
statements. Nationwide, “more than seventy-five percent of
convictions overturned due to DNA evidence involved eyewitness
misidentification.” Romero, supra, 191 N.J. at 74 (citing
Innocence Project report); Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 8-9, 279 (2011)5
(finding same in 190 of first 250 DNA exoneration cases). In
half of the cases, eyewitness testimony was not corroborated by
confessions, forensic science, or informants. See The Innocence
Project, Understand the Causes: Eyewitness Misidentification,
http://www.innocenceproject.org/understand/Eyewitness-
Misidentification.php (last visited August 16, 2011). Thirtysix
percent of the defendants convicted were misidentified by
more than one eyewitness. Garrett, supra, at 50. As we
recognized four years ago, “[i]t has been estimated that
approximately 7,500 of every 1.5 million annual convictions for
serious offenses may be based on misidentifications.” Romero,
supra, 191 N.J. at 74 (citing Brian L. Cutler & Steven D.
Penrod, Mistaken Identification: The Eyewitness, Psychology, and
the Law 7 (1995)).

Wow. Stunning commentary on eyewitness testimony. It's mostly wrong. Put a group of people in a room. Have someone they don't know run in and grab the speaker's purse, then run out. Then bring three people with similar looks in the room and ask them which one did it. The group will always pick one of them. When they find out it was none of them, they're shocked. How could this be? They saw it with their own eyes! You know what the song said about lying eyes . . .

One of the great themes of injustice today is the fact that many people behind bars are innocent. Some of them are on death row. It's a wonderful story line for writers. Does your innocent character fight to prove he should be released? Do they get out and take revenge? Or have they given up? Does someone need to inspire them to fight to clear their name? Or is your character the eyewitness who realizes they might have been wrong? There's so much inspiration you can get thinking about the unreliable eyewitness.

If you're writing about a crime, just remember: your eyewitnesses are crap. Your evidence may be "just" circumstantial - and that's the best kind.

Don’t Make Me Throw Your Book Across the Room: Top Ten Ways You Can Alienate the 1.1 Million Lawyers Who Are Also Readers

      As an attorney who has practiced law 24 years, I have a hard time watching shows or reading books involving the law. Why? Because so many of them get so much of it wrong. It takes me right out of the story to sit there thinking, “That would never happen.”

      Most lawyers I know can’t read or watch stories about law because the factual errors are too frustrating. Gross misunderstanding of how the justice system works can take away from even the best plot. There are over 1.1 million lawyers in the United States, so alienating us with mistakes that are easily corrected can affect your sales and ratings. While I’m willing to suspend disbelief for a great story, some things tick me off so much that I find it hard to watch or read past the point where the writer commits any of these gaffes:

·         Length of time of court proceedings. There is no case in the world where the client walks in the door and they’re in trial the next day or the next week. Cases take time. At least show that some time passed in the proceeding. Age the characters, have something in their lives change. There are all kinds of things your lawyers do to prepare – depositions, hearings, motions. This gives you lots of opportunity to create interesting moments in your plot.

·         Lawyers switching sides. I really didn’t think this needed to be said until I saw it on a TV show. A lawyer can never change sides in the middle of the case. I don’t care how much the client on the other side begs. I don’t care if the firm the lawyer works for is okay with it. This will never be okay. If the lawyer in your story does this, show the disbarment proceedings in the next chapter.

·         Turning against client or going rogue. The lawyer doesn’t get to accept settlements the client didn’t agree to or secretly work against the client. If you show a lawyer doing this, you’d better have done your work to develop your character as a sleazy lawyer with zero ethics who knows they’re doing wrong.

·         Meeting alone with the judge. There are very few times when a lawyer can meet ex parte with the judge. Ex parte is fancy lawyer talk for without the other side. An emergency injunction is one of those circumstances. But in most cases, if you show the lawyer hopping into the judge’s office alone to talk about the case, you should show the judge’s bailiff escorting them to the door.

·         Meeting alone with a party on the other side. The lawyer can’t meet with a party they know is represented unless that party’s attorney agrees to let the meeting happen. I don’t care what Patty Hewes does on Damages. And you know why it doesn’t bother me on Damages? Because the lawyers did their character development and I know Patty Hewes has no ethics. It’s in character and I believe it.

·         Secret recordings. All states require at least one party to consent to a recording, so a lawyer or a party can never plant a device to record a conversation they’re not part of. Many states require both parties to consent to the recording, so if your lawyer is in one of those states and they hid a tape recorder in a purse, they’ve likely committed a felony. An illegal recording probably won’t be admissible in court.

·         Improper questioning. I see lawyers virtually testifying in TV and movies all the time. If the lawyer is talking about evidence that hasn’t been introduced through some witness on the stand, they’ll be told to cut it out.

·         It’s just circumstantial. All that great forensic evidence you see on CSI? It’s circumstantial. Eyewitness evidence is the most unreliable evidence. I hate it when lawyers and judges go around saying, “oh, but the evidence is just circumstantial.” Circumstantial evidence is reliable as heck. Witnesses are lousy at remembering details, but ballistics rarely lie.

·         Wrong jurisdiction. Showing a federal judge handling foreclosures, a criminal judge handling small claims cases, a divorce judge trying a personal injury case, is all amateur hour. Judges are limited in the types of cases they can hear. Do your homework and show the right judge hearing the right kind of case.

·         Yelling at judges. If a lawyer yells at a judge in court, they’ll land in jail for contempt, or at least get a severe dressing-down. There are all kinds of proceedings that don’t happen in front of judges where you can set the big dramatic scene where the lawyer acts out. If you set it in court, the next scene should be in jail.

            So, do your research, and get it right. Thank you in advance for writing something that 1.1 million lawyers will be happy to read. If I can help even one novelist keep from having their book thrown down in disgust, or one TV writer from having the channel changed, my work is done here.

The Good Wife Does Objections Right, Circumstantial Evidence Wrong

It doesn’t take much to give me a thrill when I’m watching a legal drama. Even the tiniest bit of law done right can make me happy. Yes, I’m probably easily amused. But when a screenwriter gets it right, I jump for joy because it’s so darned rare.


HOSTILE WITNESSES

When I was watching The Good Wife last week, the lawyer was examining a witness using leading questions. In general, leading questions are ones with yes or no answers. Opposing counsel objected to the leading questions. The lawyer conducting the examination responded that the witness was hostile and he was allowed to lead.

When the judge overruled the objection, I was happy beyond words. That tiny bit of correct procedure added to my viewing pleasure. Here’s what was going on that they got right.

A hostile witness is a witness who favors the other side. It’s usually an employee, relative, someone the other side has control over. While leading a witness on direct examination is usually a big no-no, this is an exception to the general rule against leading on direct. I usually like to call them an adverse witness when I’m using this exemption, mainly because sometimes the judge will say, “Well, I haven’t seen them being hostile. I’ll allow it only if they act hostile.” Doi. That’s a misuse of the exemption. Hostile simply means, in this situation, adverse. But still, I like to keep it simple. So when I tell the judge I’m leading because the witness is adverse, they’ll almost always allow me to lead.

Watching a TV lawyer leading a witness on direct drives me batty. Here, they showed some action, a bit of drama, and told all the folks who know about the justice system that we’re in good hands.

CIRCUMSTANTIAL EVIDENCE

They did one little thing that bugged me though. I couldn’t get too exercised about it because everyone makes this mistake. I’d like to see it eradicated in my lifetime, so I’ll keep picking at it. That’s the misuse of the term “circumstantial.” I always hear characters say, “But that’s just circumstantial,” or “I need hard evidence, not circumstantial evidence.”

Circumstantial evidence is where the fact is not directly observed but where inferences are drawn by the surrounding circumstances. Your character hears a shot fired, sees a woman standing over her husband with the smoking gun. The forensics show that she has gunpowder residue on her hands. That’s all circumstantial evidence.

Eyewitness testimony is not circumstantial when the eyewitness observed the fact. If the maid saw the wife pull the trigger, that’s eyewitness testimony. It’s not circumstantial. What it is, though, is incredibly unreliable. Eyewitness testimony is the least reliable evidence. Witnesses are crap at recalling details. Witnesses of one race can’t reliably identify faces of people of other races. Eyewitness testimony is why so many people are wrongly convicted.

All that great scientific evidence that TV dramas and juries love is circumstantial evidence. It’s reliable as heck. Give me circumstantial evidence any day over eyewitness testimony.

So please stop dissing circumstantial evidence in your writing. Use it right.