The Problem with Eyewitness Testimony

Posted by Zac Stone on March 22nd, 2011
Franky Carrillo, celebrating upon his release from prison.

A man who served 20 years in a California prison for a drive-by killing he did not commit was released last week after eyewitnesses recanted their testimony and a judge overturned his conviction. The case of Francisco Carrillo highlights the deleterious effects eyewitness testimony can have on a defendant's chance of receiving justice. Though jurors tend to weigh eyewitness testimony heavily, more wrongful convictions are caused by misidentification by eyewitnesses than by all other factors combined.

In 1991, Scott Turner was a teenager and a member of the Neighborhood Crips gang. When faced with a "six-pack" of photos from the police after witnessing his friend's father shot dead in front of him, Turner identified rival gang member Francisco "Franky" Carrillo as the perpetrator. It was not until six months later that the other five teenaged boys who witnessed the crime were asked to identify the man, well after Turner had shared with his cohort which photo he selected. Dameon Sarpy, the victim's son, as well as Turner and three of the four other witnesses recanted earlier testimony in which they had all accused Carrillo with varying degrees of certainty.

The circumstances of Carrillo's case exemplify many of the issues that surround prosecutors relying heavily on eyewitness testimony. In what are considered the "system variables" affecting identification (those the criminal justice system can control), police procedures can and do contribute to misidentification. Law enforcement agencies frequently ask eyewitnesses to identify perpetrators from a six-pack, or six mug shots grouped on a page; witnesses often wrongly assume the perpetrator must be among the six options (not always because of instructions they may or may not receive), so many witnesses thrust into this situation engage in "relative judgment," in which they pick the individual that most closely resembles their memory of the perpetrator. This effect is exaggerated when police employ the "show-up," by presenting a witness with a suspect they've detained, sometimes in shackles surrounded by officers or in the backseat of a squad car. Law enforcement organizations argue that the show-up enables them to quickly release a suspect if he is not involved, but it is a natural inclination for a witness to assume guilt in such a situation, whether the suspect is a known gang member, a star athlete, or their neighbor. Not necessarily out of malice, but subconsciously or in an effort to close a case, law enforcement officials can also offer witnesses verbal suggestions or non-verbal cues that affect their memory of the event and perpetrator.

Witnesses have been known to change their description of a perpetrator after learning about a particular suspect, or to offer hesitant identifications from lineups only to assert certainty in court. The jury deadlocked in Carrillo's first trial, when Dameon Sarpy testified that he was "pretty sure" Carrillo was the shooter. Sarpy testified with confidence in Carrillo's next trial, which resulted in his conviction and two life sentences. Two decades later, Sarpy admitted that Scott Turner had told him whom to select, and Turner apologized in court and asked for Carrillo's forgiveness. After the recantations and a dramatic reenactment of the crime on a dark street in Lynwood, Judge Paul A. Bacigalupo was able to determine Carrillo's conviction had been wrongfully handed down.

Memory distortion in eyewitnesses can be caused by innumerable factors, however, not limited to those system variables. Included among the "estimator variables" (those outside the control of the criminal justice system) are distractions like a gun (called weapon focus) or inclement weather, lighting and location of the crime, race (particularly when a witness is of a different race than the assailant), and the stress felt during a crime, especially when the threat of violence is high. It is safe to say memories don't exist in isolation, but rather among other memories and thoughts and images that can interfere with one another. Memory is far from sacrosanct, yet juries give overwhelming preponderance to eyewitness testimony, which then results in wrongful convictions, just like Carrillo's.

Studies of inmates exonerated by DNA evidence performed by the Innocence Project have found that a full three quarters of post-conviction exonerations involve mistaken eyewitness identification testimony. As for its role in capital punishment, the Center on Wrongful Convictions studied eyewitness testimony in the cases of 86 defendants sentenced to death, but later exonerated, and found that misidentification played a major role in convicting more than half of them, and that eyewitness testimony was indeed the only evidence used against 38 percent of the defendants.

Certain safeguards can and should be put in place to ensure, for instance, that the composition of a lineup reflects the witness' description of a perpetrator, and does not allow the suspect to noticeably stand out. Officers administering photo and live lineups should be unaware of the suspect's identity - misidentification is drastically reduced when tests are administered blind, so to speak. Witnesses ought to be instructed thoroughly and made aware that the perpetrator may not be included among the lineup. Additionally, presenting suspects sequentially, and not all at once, has been shown to counteract the relative judgment witnesses engage in when faced with a select group of possible suspects. After identification, a witness should state their level of confidence in choosing one suspect, and the entire proceedings ought to be recorded from beginning to end, so the fallibility of memory may play a less significant role beyond the initial identification. By employing these precautions, we may slightly correct for our impressionable memories and keep more innocent people from landing in prison or dying at the hands of the state.

Moments after being released from a Los Angeles jail on March 16th, Franky Carrillo thanked his legal team (full disclosure: Ellen Eggers, all-star attorney with the state public defender's office, is on the DPF board of directors), and offered this understated, but apt summation, "It's been a long journey. Initially it started with an injustice, but finally justice has prevailed, and I'm excited," presumably to start his life after our justice system took it away so callously.

Innocent people who find themselves accused of crimes rarely expect prison time and generally trust in the system to mete out justice fairly, but those without a crack legal team and a sympathetic judge, like Carrillo 20 years ago, may very well find it difficult overcoming long entrenched flaws in our justice system.




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