Troy Davis execution set for Sept. 21: case proves the fallibility of eye witnesses.

The law, lawyers, and the court.
Sept. 20 2011 3:52 PM

Eyes on an Execution

The Troy Davis case shows how wrong eyewitness evidence can be.

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One might want to think that a whole series of eyewitnesses would be much more likely to get it right than just one. Yet in the wrongful conviction cases I examined, 36 percent were misidentified by multiple eyewitnesses, some by as many as three or four or five. Perhaps the best known of those cases is that of Kirk Bloodsworth, the first person exonerated by DNA tests from death row. He was misidentified by five eyewitnesses, and as a result, Maryland now bars death sentences in cases with such weak evidence. We know that eyewitnesses can be influenced by one another—and in several of the innocent exoneration cases I studied, eyewitnesses all viewed photo arrays as a group.

While suggestive procedures were used in 78 percent of the trials that I studied, I did not see re-enactments nearly as suggestive as the one staged in Troy Davis' case. (Although in one Virginia case, they placed a stocking over Willie Davidson's head and pulled it on and off, asking "is this it, is that it," since the victim was attacked by a man in the dark with his face covered by a stocking mask.)

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Far more subtle police suggestion at lineups has caused eyewitnesses to miss the actual culprit and instead identify an innocent man. Most remarkable is another well-known case hailing from Georgia, where the victim identified John Jerome White but DNA showed years later that not only was White innocent, but the guilty man was coincidentally placed right next to him as a "filler" in the same lineup. Maybe the Georgia Board of Pardons does not know the case.

In the past few weeks there has been a drumbeat of news on the fallibility of eyewitness misidentifications. There is a massive body of social science evidence on the problem of eyewitness memory. Just yesterday, still more was added to the corpus—a report with results of a national eyewitness-identification field study was announced, with findings confirming the importance of adopting best practices for lineups. The U.S. Supreme Court is hearing a case this fall about eyewitness procedure and state action. The New Jersey Supreme Court just issued its remarkable Henderson ruling establishing a comprehensive social-science framework of rules for eyewitness testimony in the courtroom.

The eyewitness identifications in the Troy Davis case do not remotely pass muster based on what we know today about eyewitness memory—they were not double-blind, they were not conducted properly, and the staged re-enactment was blatantly suggestive. Nor is there any other indication that these witnesses were reliable. (They were not initially sure of what they saw under stress, in the dark, perhaps focusing on a weapon, and their initial descriptions were erratic.)

The Troy Davis case is a case about the death penalty and also about how much risk of error we as a society can tolerate. It is a case about judicial reluctance to meaningfully examine new evidence of innocence, including witness recantations. It is a case about jailhouse informants. But the Troy Davis case is finally a case about the fragility and malleability of eyewitness memory. And the eyes of the world are now on Georgia.

Brandon L. Garrett is a professor of law at the University of Virginia School of Law who studies criminal procedure, civil rights, and wrongful convictions. His new book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, was published by Harvard University Press.

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