Eyes (and Minds) Deceive: Witness Unreliability Casts Doubt on Death Penalty Rulings

??Three members of the U.S. House of Representatives contacted the Georgia State Parole Board two days ago in a futile attempt to reopen a clemency hearing for Troy Davis, who was executed on the night of September 21 for the killing of a Georgia policeman. In their letter, they pointed out that the board had concluded its hearing without having a chance to hear Jennifer Dysart, a psychologist from the John Jay College of Criminal Justice in New York who is an expert on eyewitness testimony.

The ethics of retaining the death penalty is a decision made by state governments and the courts, but scientists like Dysart have ever more to say about the accuracy of those who witness the crimes that produce death sentences. Parole boards should listen carefully before making up their minds because of the apparent unreliability of these accounts.

The Innocence Project, a litigation and public policy organization affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University in New York, has found that mis-identification by eyewitnesses played a role in three quarters of the 273 cases of mistaken conviction later exonerated by DNA evidence in the U.S. In the Davis case, several of the eyewitnesses recanted their testimony prior to his execution.

Social scientists, too, have critiqued the validity of procedures used in identifying suspects. On September 19, the same day that the parole board held its clemency hearing, a study by Dysart and colleagues found that witnesses make more accurate identification of suspects in a double-blind, sequential lineup?one in which each individual member is viewed separately and the law enforcement official does not know who the suspect is. Most lineups, including Davis?s, recapitulate the typical Law and Order episode in which all of the members stand side-by-side and the cop knows who the suspect is. In the study, Dysart found that nearly 42 percent of eyewitnesses made errors in the traditional lineup, compared to 31 percent in a sequential one.

In an affidavit prepared for the parole board, Dysart pointed out that after Davis?s arrest in 1989 (see pdf with affidavit, Dysart study and an Innocence Project letter), investigators staged a crime reenactment for eyewitnesses and used ?suggestive identification techniques.? In 2008, the Georgia Peace Officer Standards and Training Council adopted an eyewitness identification training program and no longer endorses these practices, which, Dysart contends, contributed to Davis?s misidentification. The psychologist was planning to end her testimony by saying, ??given the significant problems with the eyewitness testimony in this case, there is a substantial danger that multiple witnesses rendered faulty identifications. As a result, the Board should give little weight to the eyewitness testimony introduced by the State.?

It is too late for Davis, but maybe not for others. In June, the New Jersey Supreme Court issued new rules for determining witness reliability before presenting testimony to jurors. And the U.S. Supreme Court has accepted a case that relates to eyewitness identification.? Bit by bit, the accumulation of scientific findings may be helping to ensure that the innocent are not wrongfully accused.

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Source: Wikimedia Commons

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