Our lying eyes

I am prompted to post by an article (reference 1) in the NYRB by one Jeff Rakoff, who is or was a Senior Judge, United States District Court for the Southern District of New York. He was also a senior participant in the work reported on at reference 2.

The article is about the unreliability of eye witness testimony to crime, the evil consequences thereof and what might be done about it. The sort of testimony of interest being identification of someone previously unknown to the witness, on the basis of being shown, after the event, groups of people or photographs. There are a variety of ways this can be done, but most often we are talking of picking someone out from a photo gallery, a gallery of images of similar and similarly presented (but different) people, images which are often, these days, assembled from a searchable database of same on a computer.

Part of the story is that while at the time an eye witness makes an identification, that eye witness may be commendably circumspect about that identification, that circumspection is apt to solidify to certainty by the time a case comes to trial. Not through any fault of the witness, it is just that the memory of the original event and the image from the photo gallery have been conflated in the brain, a process which may well be helped along by being regularly asked to confirm the identification. We really believe that what we see now, what we saw in the image, is what we saw at the time. The sort of thing which happens to all of us all the time with, for example, childhood memories, with the sausage incident noticed at the beginning of reference 6 being one such.

Another part is that care needs to be taken, when asking witnesses for this sort of identification, not to load the dice, preferably by the person administering the identification procedure not knowing anything of the case or of the suspects in question.

Another part is making proper use of such testimony in court. With a difficulty here being that if the judge tries to qualify the testimony, a jury is apt to disregard it altogether. Too much information.

Difficulties which are compounded by the US plea bargain system whereby the great majority of criminal cases are judged by the prosecutor and not tested in court at all. The workings of this system are described in an earlier article (reference 5).

Difficulties which have resulted in a large number of miscarriages of justice, and some small number of executions of innocent people; at least one hopes that this number is small. Some of this is detailed at reference 4, where see, for example, the case of James Bain: ‘… In spite of this conflicting serological evidence and Bain’s alibi, Bain was convicted of rape, kidnapping, and burglary and sentenced to life in prison. The prosecution’s case rested largely on the victim’s identification of Bain in the photo lineup …’. A case which would not have reached court in these days of DNA analysis – but this is not always going to help. Another big help, at least in this context, is the proliferation of CCTV cameras, which often provide crime scene images which can be examined at leisure, rather than recovered in a hit and miss way from human memory.

On a more positive note, these are known difficulties and part of the response in the US was something rather like one of our Royal Commissions, when the great and the good are brought together to work over some pressing problem of the day. Although implementing the various recommendations to be found in their report (reference 2) in a country as big and as varied as the US is not going to be easy.

I only hope that our own justice system is aware of these problems and is doing what can be reasonably done to mitigate them.

References

Reference 1: Our lying eyes - Jed S. Rakoff – 2019. NYRB.

Reference 2: Identifying the Culprit: Assessing Eyewitness Identification – Committee on Scientific Approaches to Understanding and Maximizing the Validity and Reliability of Eyewitness Identification in Law Enforcement and the Courts; Committee on Science, Technology, and Law; Policy and Global Affairs; Committee on Law and Justice; Division of Behavioral and Social Sciences and Education; National Research Council – 2014.

Reference 3: https://www.nap.edu/. A source for reference 2.

Reference 4: https://www.innocenceproject.org/about/. A project which takes much interest in these matters.

Reference 5: Why Innocent People Plead Guilty – Jed S. Rakoff – 2014. NYRB. A related article.

Reference 6: http://psmv4.blogspot.com/2019/04/cheese.html.