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.

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.