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  • Writer's pictureCourtney Heard

Reasonable Doubt Part 2: Eyewitness Testimony

Last week, as part of this series on wrongful convictions, I wrote about why it’s so important for average citizens to understand what reasonable doubt is, and how a “not guilty” verdict is not the same as finding a defendant “innocent”. You can read other parts in this series about wrongful convictions in America called Reasonable Doubt. Here are the other parts:

This week, for part two, I want you to watch something. This is the OJ Simpson trial, which involved a lawyer from the Innocence Project. Here was a perfect example of reasonable doubt. You can generally find out what sort of juror you will be by your opinion on this trial. If you would have agreed with the verdict that the jury came to, you probably have a very good understanding of what reasonable doubt means. If you would have found him guilty, then you would likely be an emotional juror and the chances of you serving on a jury that might accidentally put away an innocent man are pretty good.

Watch this:

What you see in this video are two things:

1. This was race-related. The verdict, in this case, was important to the black community because the black community is overwhelmingly and disproportionately blamed for most crime in the USA when stats, studies and facts all show that they do not, and have never, committed near half of the crime in the US. Putting away innocent black people for crimes they did not commit doesn’t just happen often. There is no doubt in my mind, this happens daily.

Consider these facts:

  • 13% of the US population is black.

  • 40%+ of the US prison population is black.

  • African Americans make up the majority of people serving time for nonviolent drug offenses.

  • Black youth are arrested ten times more for drug offenses than white youth.

  • 5 times as many white people report using illicit drugs as black people. Five times.

2. The line toward the end of this video, “One question hangs in the air. If OJ Simpson did not murder his ex-wife and her friend… who did?” illustrates the misconception of the jury system perfectly. OJ was not found innocent, he was found not guilty. There is a vast difference. A not guilty verdict can be made even when jurors feel the defendant did, in fact, commit the crime being examined. The difference is the question, “does the evidence support my opinion beyond a reasonable doubt?”. If the answer is no, a not guilty verdict is necessary, even if it is your opinion that the man committed the crime.  This is the only way we can avoid wrongful convictions in the current justice system.

The causes of wrongful convictions are many, and they include emotional juries. The number one cause, however, is eyewitness testimony.

Neil deGrasse Tyson once said,

Eyewitness testimony is the lowest form of evidence in science. Which is sad, because it’s the highest form of evidence in the court of law.

Tyson was actually called for jury duty on a couple of occasions and was dropped both times as a potential juror. The first time they excused him from serving on a jury, it had been after this conversation:

Lawyer: “I see you’re an astrophysicist. What’s that?”

Tyson: “Astrophysics is the laws of physics, applied to the universe—the Big Bang, black holes, that sort of thing.”

Lawyer: “What do you teach at Princeton?”

Tyson: “I teach a class on the evaluation of evidence and the relative unreliability of eyewitness testimony.”

He was immediately excused. Why? Because the majority of cases in the US rely on eyewitness testimony and with Tyson on the jury, they knew they wouldn’t get a conviction.

Here are a few things to consider about eyewitness testimony:

  1. Eyewitness testimony is what is happening when people insist they have “found God”, witnessed a miracle, had their prayers answered, been abducted by aliens, seen a ghost, el chupacabra, Bigfoot or Nessie.

  2. Continually, studies on eyewitness testimony show that it’s a 50/50 toss up, whether or not the eyewitness is correct.

  3. 72% of all wrongful convictions that have been overturned with DNA testing, were based on false eyewitness testimony.

It’s an unsettling thought, the idea that our memory is only reliable half the time and we really have no idea which half it is. It being unsettling, however, does not make it any less true.

Have you ever been discussing old times with a friend or a family member and gotten into a debate over whose version of events was right? Maybe it’s a Christmas dinner where Grandma burned the potatoes, but your brother is sure it was the brussels sprouts that had been burned. Both of you are perfectly certain of your version, but someone has definitely recalled what happened incorrectly. Maybe even both of you have. This scenario is so common, there’s probably not one of you reading this who has not experienced it.

Our memories are not video cameras that record the events in our lives exactly. They often replace old information with new information, and memories morph over time. For instance, taking the example of Grandma’s brussels sprouts. Maybe your brother is right, she did burn the brussels sprouts, but you recall it being the potatoes because recently at Thanksgiving, someone did burn the potatoes and you told the story of grandma’s burned sprouts at that dinner, and the two became jumbled in your mind.

There are many other ways in which your memory can be jarred into remembering something wrong over something right.

Memory can be drastically affected by stress and strong emotions. If you’re witnessing a crime, chances are, you are experiencing stress and strong emotions. You might be terrified or sad or you might feel overwhelming anger and a desire to have someone pay for the crime. These are powerful emotions that can, when you see a line-up, cause you to find one feature of a man familiar and think, “that’s him! Get him!” without assessing anything else about the men in front of you. At that moment, you begin to associate that man’s face with the crime that has been committed and any time a cop shows you a photo of him, you will pick him out.

Pressure, exhaustion and a desire for this all to just be over can also lead you to identify the wrong person. A small glimmer of hope that the police have brought in the real perpetrator will make you stretch what you recognize just to have this part of the investigation and trial be over and done with.

Suggestions by police can affect your memory as well. If you’ve ever watched a crime drama on TV, you’ve seen a cop slide over a mug shot of a single man and ask, “Is this the man who hurt you?”. This happens all the time in real investigations and is, in itself, suggestive. Sometimes cops will offer you a whole page or booklet of photos, but one photo is different in some way. Maybe he’s the only black man in the set of photos, maybe he’s the only one with a beard as you described the real perpetrator to have, or maybe the police have marked his picture in some way (which they do). This is also leading and happens more than any of us should feel comfortable with.

Our vision can also play tricks on us. Even perfect 20/20 vision deteriorates drastically at a distance or in poor light.

Sometimes, there is no reason that can be pinpointed. Sometimes, our memory just sucks.

Take into consideration the case of Jennifer Thompson-Cannino. In 1984, as she slept alone in her apartment, a man broke in. She was awoken, saw him in her room and began screaming. The man then held a knife to her throat to shut her up and she offered him anything he wanted to leave her alone. Face to face, they spoke. He said he was not interested in money and proceeded to rape her. Horrified, Jennifer refused to let this man get away with what he was doing. She vowed, while she was being attacked, to study this man’s face. Every last mark, scar and expression. She studied his face the entire time she was being attacked and was beyond confident she could identify this man in a court of law. Jennifer was not a drug user. She was a respected and accomplished college student. She was healthy both physically and mentally and she swore she could recall that face like she could her own mother’s.

Able to escape her apartment with her rapist still there, she ran and found police. The perpetrator left and raped another woman nearby.

Jennifer reported her crime and after evidence was collected and a composite sketch of her attacker was made, the police laid out a photo line-up of men, including Ronald Cotton who was identified in a tip that came in that he resembled the sketch. The police, correctly following procedure, told her the man they were questioning may or may not be in the photos.

Jennifer studied the photos carefully and picked Ronald.

When asked if she was sure, she assured the detective that she was indeed.

Ronald was brought in for questioning. He gave a mistaken alibi, having mixed up which weekend was in question. This made the police think he was lying.

Ronald Cotton was put in a physical lineup shortly after, from which he was pointed out by Jennifer (who, as we know, had chosen his photo as well).

She was absolutely sure.

The evidence was presented at trial. A sane, sober woman told the jury that as she was attacked by this man, she studied every feature of his face and had no doubt in her mind that Ronald Cotton was that man. The prosecution then also brought to light that he had “lied” about his alibi for that evening.

Imagine yourself on that jury. Imagine listening to 22 year old, pretty, responsible, ambitious, blond Jennifer tearfully point out Ronald as her attacker and explain in detail the horror of her attack. Imagine what you would feel in that moment. Likely, rage would be building up inside of you. Sympathy for Jennifer would grow. Then you would be told that Ronald made up a story for his alibi, which was proven to be wrong. Ronald appeared to be a liar. Imagine yourself in that situation. It would appear that Ronald was guilty, no? Most people in today’s world, save for Neil deGrasse Tyson and a handful of Innocence Project volunteers, would have found him guilty and you can hardly blame them for that, can you?

Not surprisingly, Mr. Cotton was found guilty and sentenced to life plus 54 years for the rape of Jennifer Thompson.

In prison, sometime later, Cotton came across a man named Bobby Poole who was serving time for rape. Cotton wondered if he had been the real rapist due to the similarities in their appearances. Prison staff would often mix the two of them up. Cotton even heard a story from another inmate, that Poole had admitted to the rape of Jennifer and the second victim. Several appeals and retrials later, however, Cotton’s sentence still stood.

It wasn’t until 1994 that the DNA evidence, still preserved in police custody, was tested and proved beyond any doubt that the real offender was Poole and not Cotton. After 10 years in prison, Cotton was freed and the charges were dropped.

In shock, Jennifer became riddled with guilt. She found Ronald and apologized profusely. The two became good friends and wrote a book together about their ordeal. Picking Cotton is a must-read, and this talk by Jennifer and Ronald is moving, to say the least:

False eyewitness testimony can also be attributed to perceived incentives for the eyewitness. People lie. People lie more often when there is an incentive. Incentives that can make an eyewitness lie can vary from taking the heat off themselves or the real perpetrator with whom the eyewitness may be close, to shorter sentences for the role they may have played in the crime, to monetary reasons, such as insurance claims or alimony/child support.

A case that perfectly illustrates this, and that takes us back to the 1800s and proves, horrifyingly, how long wrongful convictions have been going on, is the Boorn Brothers case.

In 1812, Russell Colvin disappeared from Manchester, Vermont. The community suspected the Boorn Brothers had done something to Colvin, who was their sister’s husband. They had made no secret of their dislike for Colvin, and it seemed to fit that the brothers may have done something to him. After visions and excavations and crazy stories, the authorities unearthed some random items from a hole in the ground where the brothers’ uncle said he had been led in a vision, and claimed the body of Colvin was buried. No human remains were found but Colvin’s wife identified the items as having belonged to him. The police were sure they were onto something.

Shortly afterwards, the barn near this excavation site burned down and bone fragments were discovered elsewhere on their property. Doctors identified the bones as human and it was assumed the brothers had burned the barn down to destroy evidence. One of the Boorn brothers was arrested and jailed while the other had a warrant out for his arrest.

In prison, Jesse Boorn’s cellmate began cooperating with police, and told them that Jesse had confessed to the murder of Russell Colvin. The cellmate agreed to testify to this in exchange for his own release from prison.

Stephen Boorn felt his best avenue to survive this, was to confess as he thought his brother had.

The brothers were convicted and in spite of their “cooperation” and “confessions”, they were sentenced to death. They sat on death row awaiting their executions, knowing that they were innocent of the crime they’d been punished for. It was just a month before the first execution was to take place that Russell Colvin, the supposed murder victim, returned to Manchester, Vermont, very much alive. The brothers were freed just in time.

This case includes the false identification of belongings, by Colvin’s wife, who needed to have her husband declared dead in order for her to receive child support from her kid’s real father. It also included false identification of bones by doctors who, upon further examination declared the bones to be of animal origin. It also included false testimony from a jailhouse snitch, in prison for forgery, who perjured himself on the witness stand in exchange for his own freedom.

You can read about this story in Wilkie Collins’ The Dead Alive, which is free in the Kindle store. It’s based on the Boorn brothers' case although small things were changed, such as names, etc.

Yes, that was 1820. Yes, that was a long time ago. Yes, we were less sophisticated as far as evidence collecting and police procedures go. But that doesn’t change anything. Ronald Cotton’s ordeal ended in 1994 and was ultimately through no error of the police or prosecution. But then, there is this case, which ended in 2014… after forty years:

In Ricky Jackson’s case, there was also a codefendant, Wiley Bridgeman who had also just spent 40 years in prison. These men went down when they were teenagers and are emerging from behind prison doors in their 50s. They have had many things taken from them: their ability to have a family, to build a career, to buy a home, to have grandchildren, pets, vacations, raises, and everything in between. They were, in no uncertain terms, robbed of their lives while still living.

What convicted them? The testimony of a 13-year-old boy who has, forty years later, recanted his testimony. The 13-year-old child claimed to have been coerced by police – not at all uncommon in any state – to testify that the men had killed another man.

Even worse is the case of Wilburt Jones, a Louisiana man who was released from prison in 2017 after spending 46 years behind bars. The case against him rested entirely on the identification by the victim three months after the crime occurred. If Jennfier Thompson had been wrong about her identification just days after the crime had happened, what would three months do to a person’s memory?

Had Wilburt Jones gotten the death penalty, he would be dead right now. Troy Davis wasn’t so lucky. In his case, 34 witnesses were called to testify against him. He was sentenced to death for the murder of a police officer. Years later, many of those witnesses came forward to claim they had been coerced by police who were fighting for justice for one of their own. They simply just wanted someone to pay and they’d made up their mind that the someone was Troy Davis. In the years leading up to his execution date, Davis filed for appeal after appeal and finally got a stay of execution for a short amount of time while the evidence was reviewed.

Witnesses clearly indicated that they were recanting their testimony and had been coerced.

The case that had been mounted against Davis was entirely based on eyewitness testimony and the Innocence Project, wrongful conviction activist community, and Amnesty International fought loud, hard and long. Yours truly was part of this.

A social media campaign was launched called I Am Troy Davis that captured the attention of the world. In the end, he was executed, in spite of the fact that doubt had been cast on the prosecution’s case. Whether he was innocent or not should play no part in whether you think this was a miscarriage of justice. The only thing that matters here is the doubt. If there is doubt, even just a little, then there is a chance an innocent man has been killed.

The death penalty is barbaric and never, ever under any circumstances is it anything short of cold-blooded, premeditated murder, even in cases of absolute guilt with caught-on-tape and DNA evidence. However, a case in which a man is slaughtered when doubt exists? That’s just plain killing for sport… and it’s happening on your dime if you’re an American taxpayer. It is state-sanctioned sport killing, like shooting fish in a barrel. The funding you wish could go to the lacklustre American education system? Yeah. That money helped kill Troy Davis.

A Youtube Playlist about his case:

While many people call for reform in how we deal with eyewitnesses, I don’t think eyewitness testimony should be considered evidence at all. With an accuracy rate of 50%, you might as well enter a flip of a coin into evidence. It has the same odds of being correct.

72% of all wrongful convictions have been due to bad eyewitness testimony. It appears to me that making eyewitness testimony no longer admissible in court, would save a whole lot of money, time and innocent people in prison and potentially put to death. It wouldn’t just protect the rights of those in poorer communities or members of minorities. It also protects your own rights. OJ had the money to buy a lawyer who could illustrate reasonable doubt to a jury of regular people. You may not.

Luckily for some of these innocent men and women, one of OJ’s lawyers started the Innocence Project, which I highly recommend you consider either donating to or volunteering for.

If you like what I do here and want to support my work, you can chip in here or become a member here.

This is part 2 in a series about wrongful convictions in America called Reasonable Doubt. Here are the other parts:

Further reading:


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