Thursday, January 12, 2012
My legal career lasted almost 30 years, virtually all of it spent in criminal prosecution. I am glad I started in 1981, rather than 2011. I fear the world of the prosecutor is changing for the worse. The U.S. Supreme Court yesterday upheld the use of eyewitness testimony in a criminal trial, rejecting the argument that eyewitnesses need to be somehow evaluated for credibility by the judge before testifying in front of the jury. And while the victory is one for the prosecution, the overriding feeling I get from this case is that the future looks bleak for prosecutors.
It is kind of astonishing to me that the Supreme Court was called upon to resolve the question of whether eyewitness testimony is so inherently unreliable that a pretrial determination is necessary witness by witness. Pretrial reliable is necessary for evidence outside normal experience, like novel scientific evidence, but the thought that the oldest method of identifying a person would be subject to judicial review is mind-blowing. I realize there are thousands of studies talking about the unreliability of eyewitness testimony, but really, that is the core of how people have identified other people since time immemorial. If Meg texts me that she just saw Adrien Brody on the street, I don’t ask her to sample his DNA to see if it was really Brody. People know what other people look like.
Everyone in prosecution (I almost wrote “all of us”, old habits die hard) knows that people make mistakes in identification. For that reason they seek independent corroboration for all identifications. Cross-examination, hailed by the defense bar as the greatest way to get to the truth, is available for all eyewitness testimony, however, we can see that defense lawyers fear the truth, and want judges to keep the juries from deciding it.
My biggest fear for prosecutors is not that eventually Justice Sotomayor’s (and I guess we know now how she feels about the prosecution) position in dissent will eventually become the law, but that juries will adopt that reasoning anyway, in essence dooming eyewitness testimony. Certainly anyone who keeps up with current events has heard the increasing drumbeat about innocent people being released from death row when their convictions were determined to be false and based on erroneous eyewitness testimony. When I was at CDAC I did some research on one of the expert witnesses who the defense hires to say that people cannot reliably tell a jury who they saw kill their best friend in cold blood. Their research, while subject to some critical analysis, can seem compelling. Strangers often do make mistakes in identifying other people.
My only murder trial ended in a hung jury (7-5 for acquittal) despite our calling six witnesses who pointed to the defendant in the courtroom identifying him as the killer. When we spoke to the jurors later they asked “wasn’t there any surveillance video?” I reminded them we convicted people in this country for 200 years without surveillance video and DNA testing, but I think that answer will no longer wash. Modern jurors, raised on CSI, weaned on DNA tests, and nourished on YouTube want more than mere eyewitness identification. Without some incontrovertible evidence, prosecutors will not be able to make a case, I fear.
Identification cases will not be tried anymore. Either the prosecution will have a slam-dunk case or none will be filed. Without surveillance cameras stores will be unable to protect themselves. Already sexual assaults by strangers are unfileable without DNA evidence. Burglaries, robberies, assaults, even murders (or rather especially murders) will be committed with impunity as long as the perpetrator doesn’t leave his DNA behind or get caught on tape. I am glad I am not going to be prosecuting in that world. Police and prosecutors will be forced routinely to tell victims that no one will be prosecuted for the crime because their word alone will not be enough to convince a jury.
ID cases were some of the most fun to try, too. Piecing together proof that the defendant really was the perpetrator often involved complicated forensics, insightful interviewing, basic common sense, and creative evaluation. That is how Agatha Christie made a lot of money. The days of Hercule Poirot are gone.
It is kind of astonishing to me that the Supreme Court was called upon to resolve the question of whether eyewitness testimony is so inherently unreliable that a pretrial determination is necessary witness by witness. Pretrial reliable is necessary for evidence outside normal experience, like novel scientific evidence, but the thought that the oldest method of identifying a person would be subject to judicial review is mind-blowing. I realize there are thousands of studies talking about the unreliability of eyewitness testimony, but really, that is the core of how people have identified other people since time immemorial. If Meg texts me that she just saw Adrien Brody on the street, I don’t ask her to sample his DNA to see if it was really Brody. People know what other people look like.
Everyone in prosecution (I almost wrote “all of us”, old habits die hard) knows that people make mistakes in identification. For that reason they seek independent corroboration for all identifications. Cross-examination, hailed by the defense bar as the greatest way to get to the truth, is available for all eyewitness testimony, however, we can see that defense lawyers fear the truth, and want judges to keep the juries from deciding it.
My biggest fear for prosecutors is not that eventually Justice Sotomayor’s (and I guess we know now how she feels about the prosecution) position in dissent will eventually become the law, but that juries will adopt that reasoning anyway, in essence dooming eyewitness testimony. Certainly anyone who keeps up with current events has heard the increasing drumbeat about innocent people being released from death row when their convictions were determined to be false and based on erroneous eyewitness testimony. When I was at CDAC I did some research on one of the expert witnesses who the defense hires to say that people cannot reliably tell a jury who they saw kill their best friend in cold blood. Their research, while subject to some critical analysis, can seem compelling. Strangers often do make mistakes in identifying other people.
My only murder trial ended in a hung jury (7-5 for acquittal) despite our calling six witnesses who pointed to the defendant in the courtroom identifying him as the killer. When we spoke to the jurors later they asked “wasn’t there any surveillance video?” I reminded them we convicted people in this country for 200 years without surveillance video and DNA testing, but I think that answer will no longer wash. Modern jurors, raised on CSI, weaned on DNA tests, and nourished on YouTube want more than mere eyewitness identification. Without some incontrovertible evidence, prosecutors will not be able to make a case, I fear.
Identification cases will not be tried anymore. Either the prosecution will have a slam-dunk case or none will be filed. Without surveillance cameras stores will be unable to protect themselves. Already sexual assaults by strangers are unfileable without DNA evidence. Burglaries, robberies, assaults, even murders (or rather especially murders) will be committed with impunity as long as the perpetrator doesn’t leave his DNA behind or get caught on tape. I am glad I am not going to be prosecuting in that world. Police and prosecutors will be forced routinely to tell victims that no one will be prosecuted for the crime because their word alone will not be enough to convince a jury.
ID cases were some of the most fun to try, too. Piecing together proof that the defendant really was the perpetrator often involved complicated forensics, insightful interviewing, basic common sense, and creative evaluation. That is how Agatha Christie made a lot of money. The days of Hercule Poirot are gone.
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