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Eyewitness testimony in an imperfect world

By Avis E. Buchanan and Shawn Armbrust
Sunday, May 2, 2010; C05

"In a perfect world, it wouldn't happen," said D.C. Attorney General Peter Nickles, speaking of the error -- a mistaken identification -- that led to his office charging an innocent 14-year-old with 41 crimes, including four counts of first-degree murder while armed. "I wish it didn't happen." The Public Defender Service and the Mid-Atlantic Innocence Project echo his sentiments and propose that action be taken -- beyond wishful thinking -- to protect against mistaken identifications, the most common cause of wrongful convictions.

This error was serious. A child was charged with a multitude of serious offenses he did not commit, his name was published in the press, and the details of his difficult childhood and delinquency history were spelled out for the nation to read. The District, which nearly prosecuted this youth, suffered intense criticism for the perceived failure of its efforts to rehabilitate him.

Of equal concern is that this error could have gone undetected. The original news of the arrest stated that a D.C. police sergeant who was involved in the chase positively identified the child as the driver of the minivan involved in the mass shooting. An arrest based on this identification probably struck most people as reasonable, even laudable. After all, the sergeant is a trained, experienced police officer, and he was certain enough of his identification to commit it to a charging document. Most people might even assume this should be reliable enough to support a conviction at a future trial.

In a sense, the child was lucky -- the fortuity of other developments in the case proved that the sergeant was wrong before the child could be tried and wrongfully convicted. But that is not always the case. Eyewitness testimony can provide the most dramatic moment in a trial, and a convincing eyewitness who honestly believes in his identification can persuade a jury to convict even if he is mistaken. Indeed, such eyewitness errors have been a factor in more than 75 percent of the 252 DNA exonerations nationwide, and there undoubtedly are many more people who cannot prove their innocence because they do not have conclusive evidence such as DNA available.

These documented errors and considerable scientific research show that we should never have been so accepting of the sergeant's identification in the first place. Eyewitnesses in stressful situations, attempting to identify strangers, are prone to mistakes. A witness's "certainty" of his identification does not predict his accuracy. And studies show that police officers -- even skilled, trained police sergeants -- are no more accurate in their identifications than members of the general public.

These studies also have shown that we can both reduce mistaken identifications in criminal cases and minimize the repercussions when mistaken identifications inevitably occur. Jurors and judges, as well as police, prosecutors and defenders, need to be educated about the research on eyewitness identification to avoid the kind of unquestioning mind-set that often sets in once an apparently credible witness makes a positive identification. Police should also be required to use best practices to collect eyewitness identification evidence. Currently, the District does not do all that is recommended to reduce the risk of a mistaken identification, but a legislative proposal pending before the D.C Council, the Eyewitness Identification Procedures Act of 2009, could rectify that situation and should be immediately passed. Finally, juries should be permitted to hear expert testimony at trial regarding the reliability of eyewitness testimony and to receive updated instructions that reflect current science so they can make a more informed assessment of the identifications in the case.

Erroneous convictions based on false assumptions about the validity of eyewitness testimony result not only in conviction of the innocent, but in a free pass for the truly responsible. If this child had been convicted of murder because the police sergeant said he was the driver of the van, the true culprit would have escaped entirely.

Last week's announcement -- while certainly a relief to the child and his family -- serves as a cautionary tale that this life-changing kind of error can and does happen to innocent people. How can we not take every possible step to minimize the chances of it happening?

Avis E. Buchanan is director of the D.C. Public Defender Service. Shawn Armbrust is executive director of the Mid-Atlantic Innocence Project.

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