eyewitness id
Change blindness and the fallacy of the all-remembering cop
Jun 13th
Change blindness is a visual perception phenomenon in which the human mind fails to detect pretty significant changes in our surroundings and distorts our memory.
The most recent famous example of change blindness and its relative, inattentional blindness, is the “count the passes” experiment, which I’m sure everyone’s heard of by now (read the NYT review of their book on the subject). What that illustrates is that when our mind is focused on one task, we zero in on it at the expense of most things around it. For the criminal defense lawyer and the criminal justice system, this is a particularly troublesome issue.
Eyewitness misidentification has become the number one cause of false convictions and it’s easy to “see” how. During a particularly stressful event, when combined with weapons focus, the human mind zeroes in on one thing and pretends to see the others. It fills in the gaps as it were and it is on this peripheral vision that faces are remembered and convictions are obtained.
But there’s a problem with remembering faces. Look at this video:
It’s 5 p.m. Do you know where your bills are?
Mar 29th
Today, at 5:00pm, the Judiciary Committee of the state legislature closed for business, just like any other day. But today is important for two reasons: 1) It was the last day on which the committee could vote on bills; 2) This marked the first year that the eyewitness identification reform bill passed and will now head to the legislature for a full vote.
There are several bills I’ve been tracking for a while now, of interest to me and the regular reader. We now know the fate of all those bills (here’s a list of all bills voted out of committee and here’s a list of those that were on the agenda).
Good news:
The biggest news, in my opinion, is that the eyewitness identification reform bill received enough votes to make it out of committee (it died in committee last year). This is a tremendous step forward in the quest for adoption of best practices in lineups and photo arrays.
In addition, the sex offender residency restriction bill was never called to vote, and so unless it’s added as an amendment to a bill that did pass, it has died. (My problems with this bill were documented in this post.)
Another year and another assault on the dignity of The Great Writ has been turned away. The habeas corpus “reform” bill also died in committee, never being called to a vote.
For the second year in a row, the Adam Walsh fearmongering and bleeding money Act also failed to make it out of committee.
The innocuously titled “Act Concerning Subpoenas for Property” also wasn’t called to a vote and went away quietly. Don’t get fooled by the title. This was a very, very dangerous investigative subpoena bill, essentially granting the state to subpoena whatever the hell they wanted from whomever they wanted, even in the absence of a pending criminal prosecution/investigation. It essentially spat in the face of the Fourth Amendment.
An act seeking to create a mandatory-minimum sentence for assault of a public safety officer made it out of committee, but if I recall correctly, without the mandatory minimum.
Three bills hell bent on pushing Connecticut closer to fulfilling Orwell’s prophecy, one to remove the statute of limitations on perjury in murder cases; one to remove the statute of limitations for hindering murder prosecutions and one making it a crime to fail to report a “serious crime” against a child.
The “sexting” bill made it out of committee. But that could be a good or bad thing depending on your point of view. Me, personally? I don’t care either way.
Bad news:
I’ve always viewed the eyewitness ID bill and the videotaping of interrogations bill as two peas in a pod. Fraternal twins, if you will. Where one goes, so should the other. Unfortunately that wasn’t the case today. I’m not even sure the videotaping of interrogations bill was called for a vote. One step at a time, I guess. There’s always next year (says he, sounding awfully like a Red Sox fan. I need a shower).
The big-ticket news item of the day is the passage of the bill eliminating the statute of limitations for civil suits in child sexual assault cases. It’s not criminal, per se, but a stupid idea nonetheless.
A statewide ban the box proposal was called for a vote, but derailed and then “held”, which is lege-speak for killed.
For the second year, a bill seeking to reduce the zone around schools within which drug offenses triggered an enhanced penalty from 1500 feet to 200 feet. In addition, the penalty would have been triggered only for sales made within school hours. This was a much needed bill and I’m sad that it died.
I’m sure there are others that I’ve missed. Which bill did you want to see make it out of committee and which bill are you glad/mad didn’t?
Wishful Wednesday
Mar 9th
In what has by now become a ritual dance, every year the state legislature toys with bills meant to enact some real reform in the criminal justice system. Every year, like the sucker I am, I get seduced, dancing the dance, enjoying the promise of a moonlit sonata. Every year, like the battered spouse, I know it will be different. I believe and I hope and I pray.
So here we go again.
Tomorrow, the judiciary committee is set to conduct public hearings on three very important bills:
S.B. No. 230 (RAISED) AN ACT CONCERNING THE VIDEOTAPING OF CUSTODIAL INTERROGATIONS.
H.B. No. 5273 (RAISED) AN ACT CONCERNING EYEWITNESS IDENTIFICATION.
H.B. No. 5445 (RAISED) AN ACT CONCERNING THE DEATH PENALTY.
The bills seem to fall under the umbrella of “fixing the death penalty” and in some sense they may do so. But the real action in these bills is the adoption of best practices when it comes to interrogations and identifications. The death penalty bill also has some very interesting proposals. But let’s start at the very beginning. The interrogations bill is a hoot to read:
First, it applies only to those accused of a capital felony or Class A or Class B felonies. Second, any statement made by such person is presumed inadmissible unless 1) recorded and 2) the recording is not substantially altered. The bill then lists 9 exceptions pursuant to which a non-recorded statement is made admissible, but squarely places the burden on the state to prove by a preponderance that the exception is met. But there’s this odd subsection, which in my opinion, seeks to invalidate the entire bill:
(h) The presumption of inadmissibility of a statement made by a person at a custodial interrogation at a place of detention may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.
Since there is no further clarifying information, one must assume that this reverts back to the current standard for admissibility of statements: that they are reliable given the totality of circumstances. What, then, is the purpose of the bill requiring videotaping of interrogations? Am I reading this wrong?
The eyewitness identification bill is the standard bill that has been introduced for the last few years, so there’s nothing really to remark on. It is the death penalty bill that is the piece de resistance in this trifecta.
The bill starts tepidly enough and one might even confuse it for a bill proposed by a Republican to further limit the rights of criminal defendants in death penalty cases (oh wait, that’s exactly what it was…). But then it just takes off into neverneverland in a delightful way.
The bill first mandates that all relevant agencies must maintain exact records of the expenses incurred in pursuing and defending the death penalty. Some of you might recall how last year the public defender’s office was able to provide a dollar amount for the money spent, but the State “didn’t keep such records”.
But wait, it gets better. And how:
Another conviction reversed: Exhibit n for no prosecutorial immunity
Nov 15th
In what is becoming routine, another conviction was reversed this past week in New York, this one too based on the eyewitness testimony of 5 individuals. This, though, isn’t the usual case of mistaken ID nor is it a DNA exoneration.
Convicted of murder in 1992, Fernando Bermudez has wrongly been in jail for 17 years. Interestingly, it took only a year from his conviction for the eyewitnesses to recant citing police and prosecutorial pressure and manipulation:
A year after Mr. Bermudez’s 1992 conviction, five witnesses who had identified him as the killer at trial recanted, saying in sworn affidavits that, they were coerced or manipulated by the police and prosecutors to identify Mr. Bermudez as the killer. Several of those witnesses reiterated their recantations in September at a hearing before Justice Cataldo.
Not only that, but all 5 testified at the most recent hearing that they viewed his mugshot as a group and discussed his likeness to the killer: a big no-no in photo array identifications. All the science in this field shows that we have a tendency to compare pictures to each other and to what we think the suspect looks like and pick the one that most closely resembles the person sought to be identified, instead of picking the person who actually is. If you don’t believe me, try this simple test from expert Gary Wells‘ website.
In his 79-page decision, Justice Cataldo wrote that Mr. Bermudez’s rights were violated because the police had allowed prosecution witnesses to view Mr. Bermudez’s mug shot as a group and to discuss his resemblance to the killer. Justice Cataldo also found that the prosecution should have known before sentencing that one of its cooperating witnesses, Efraim Lopez — a teenager whom Mr. Blount had punched at the club — had given false testimony.
But that doesn’t deter prosecutors. In fact, they’re so wedded to the notion that once a conviction is obtained it must be defended at all costs – and certainly one where the reversal is based in part on misbehavior by one of their own – that they utter nonsense like the following:
Rest in Peace, good bill, your time will come
Apr 10th
It’s that time of year – when the legislature’s committees are done discussing, when one party has successfully blocked discussion and vote on other bills and the few stragglers that made it through leave behind a myriad of bills that died on the floor. Some of these bills are truly dead, some have a whisper of a chance – either for this year as add-ons to bills that made it through, or next year, because they’re persistent little sobs.
So, in honor of Good Friday (no, not really, don’t get mad at me and leave a 1000 comments), here are three Good Bills that died this year in committee, and two “it’s Good these Bills died in committee”:
Shh…don’t look now…
Mar 24th
but the Judiciary Committee is in full swing again and is considering several important bills again. Here’s a listing of the bills up for public hearing today, with some links to submitted testimony. I’ll have more on specific bills as they progress.
S.B. No. 348 (COMM) AN ACT CONCERNING THE VIDEOTAPING OF CUSTODIAL INTERROGATIONS. (JUD)
S.B. No. 349 (COMM) AN ACT CONCERNING THE PENALTY FOR POSSESSION OF A SMALL AMOUNT OF MARIJUANA. (JUD)
S.B. No. 357 (COMM) AN ACT CONCERNING EYEWITNESS IDENTIFICATION. (JUD)
S.B. No. 537 (COMM) AN ACT PROVIDING COMMUNITY REINTEGRATION SERVICES TO END-OF-SENTENCE INMATES. (JUD)
S.B. No. 543 (COMM) AN ACT CONCERNING SENTENCE REVIEW Modifications. (JUD)
You people would make terrible eyewitnesses
Mar 10th
The poll results from the eyewitness ID poll reveals either that I’ve got a bunch of non-attentive readers or (more likely) that there’s no way anyone can identify anyone from that array. They all looked the same to me, btw.
So, for those of you interested in the “answer”, it’s after the jump.
A dizzying array
Mar 1st
From a regular reader, can you pick out the defendant from this array given the description (click on the image for a larger size)? Make your choice in the poll below. I’m gonna sticky this post for a bit.
[poll id="27"]
If only they’d used such caution the first time
Jan 4th
As often happens, I lollygag when it comes to writing posts. Then, all of a sudden, in a span of a day of day or two, several stories appear that tie together the strands in my head. Today is such a day.
Percolating in the back of my head was some chagrin directed toward the prosecutors in the Clarence Elkins case (aka #92), the subject of Friday night’s Dateline. Elkins, in a case with some parallels to Miguel Roman, was convicted of raping his niece and raping and murdering his mother-in-law based on one single dubious eyewitness: his niece, who told cops that the killer looked like her uncle. Clarence, meanwhile had an alibi: he had been drinking heavily at a bar and then came home to his wife, who was awake. They went for a walk.
The police, however, got their blinders on because of the statement of the niece, despite the fact that rudimentary DNA testing excluded Elkins. Elkins’ wife, convinced of his innocence, began investigating on her own:
Troy Davis is “innocent” because…
Oct 20th
This “rebuttal” of Troy Davis’ advocates does little to dispel any notions of an impending injustice [via Paul Cassell at Volokh].
More disturbing than the weak “rebuttal” (for an extensive rebuttal of the “rebuttal”, see this comment), however, is the post itself by Paul “I used to be a Judge” Cassell, which contains some very disturbing assertions and implications.
He writes:
There has been much ado in the media lately about another “innocent” person about to be executed. Unfortunately, most of the media coverage about the impending execution of cop-killer Troy Davis has spent precious little time discussing the facts of the case.
I guess in Paul “I used to be a Judge” Cassell’s world, no innocent man has ever been sentenced to death, despite, well, innocent people actually being released from death row. Let’s just ignore those that were set free after numerous years awaiting execution.
Further, Paul “I used to be a Judge” Cassell implies that somehow the media coverage has ignored the facts of the case. While it may be true that lately the media accounts haven’t focused on the facts, that doesn’t mean that when the story about Davis first broke, the fact weren’t front and center. Without a link to back up his assertion, I’m disinclined to give him any credit. What else would they focus on right now? The issue is whether an innocent man is about to be executed. The stories should rightly focus on the reasons why he might be innocent and any status updates.
Then, Paul “I used to be a Judge but now I’m a victim’s advocate” Cassell throws out this gem:
Even more poignant is this link, which has information about the victim in this case — Officer Mark Allen MacPhail.
I guess as a standalone link it is fine, but to somehow imply that the saintliness of a victim should be a consideration in the guilt or innocence of a defendant is an affront to the whole judicial system. Would he care less about this case were the victim another drug dealer from the ‘hood? I suspect yes.
Obviously I know nothing of Officer MacPhail, nor do I presume to. By all accounts he lived a good life and was killed in the line of duty – an obvious tragedy. But if we start making determinations about the guilt of the accused based on the character of the victim, well, what sort of criminal justice system would we have?
Even more disturbing is that this is a man who used to be a judge. One of the characteristics required of a judge is to be able to evaluate both sides of an argument, assess the facts, give each one credence and then decide how to apply the law. Paul “I used to be a Judge” Cassell seems to think that these are characteristics that stay with the position of a judge, not the person occupying the judgeship.
Finally, we get this zinger:
Davis was convicted and sentenced to death in 1991. We live in strange times when the claim is made that he hasn’t had due process yet.
I think he may just be advocating for a statute of limitations on innocence claims. I don’t know that that merits any consideration.
This also isn’t the first time Paul “Good thing you’re not a Judge anymore” Cassell has made some outrageous comments.
Troy’s execution date is coming up soon. Read more about him and make your own decision.
Cops lie and people die
Jul 7th
Grits for Breakfast points us to this important and disturbing story published in the L.A. Times a few days ago. It is a report on the murder of 16-year old Martha Puebla, whose name the police used while fabricating an identification.
They were trying to get her boyfriend for an unrelated murder and during their interrogation of him, they showed him a photo array (already a source of many problems) where they forged a circle around his picture with Martha’s initials and an “identification” beneath it.
To drive home his point, [police officer] Pinner laid down a “six-pack” — an array of mug shots that detectives often show to witnesses or victims of crimes. On it, [suspect] Ledesma’s photo was circled, and the initials “M.P.” were written below it. “Those is the guy that shot my friends boyfriend” was scrawled along the margin, followed by Puebla’s signature.
“I don’t even know a Martha,” Ledesma lied.
Police deceit during investigations and interrogations has long been tolerated (see, e.g. Illinios v. Perkins), but this may be one of those instances of the disconnect between theory and reality. In this case, it lead to Puebla’s death:
The next night, Ledesma reached for a pay phone outside his cell. “Cokester,” he said into the receiver, calling his friend Javier Covarrubias by one of his gang monikers, “do you know the slut that lives there by . . . my house? Her name starts with an M . . . I need her to disappear. She is dropping dimes.”
To the gang, Puebla was a snitch and needed to be dealt with.
“Uh huh, like that,” Ledesma told Covarrubias, using a mix of Spanish and English. “But [keep a] low-pro[file]. ..Stay on your toes, homie. And don’t get caught.”
Of course, this is also a product of the anti-snitching culture that has garnered much attention. But the fact remains that as a result of the deceit on the part of these law enforcement officers, a young girl is dead.
Cases like Illinois above have given cops free reign of the interrogation room – everyone’s heard of good cop, bad cop – and license to lie about almost anything, resulting in false confessions.
While I recognize the arguments supporting lying to suspects during interrogations, there has to be some sort of oversight and limits placed on the extent of permissible deceit. Certainly, endangering the life of someone who is innocent and whom the cops should know would be in danger of losing his/her life as a result of their lie should be outside those limits.
The responsibility of law enforcement is to protect citizens and ensure their safety, not to endanger them while engaged in a tunnel-visioned pursuit of “catching a criminal”.
So what is the line? When is deceit okay, if at all? Should it hinge on waiver of Miranda rights? I’ll expound on those thoughts in a later post.
6 tips for being an effective trial lawyer
May 28th
Mike at C&F reviews a book that he recently read (and recommends), entitled “Don’t Believe Everything You Think: The 6 Basic Mistakes We Make in Thinking.” It is primarily a book about the human mind and the tricks it plays on us. Prof. Greenfield astutely reminds us all not to fall into these traps, if we are to represent our clients adequately.
I looked at it from another perspective. I think, generally speaking, as defense attorneys we are aware of these “tricks”. Some of them read just like the problems with eyewitness identification that are the subject of many papers and lots of research.
But this “list” organizes them succinctly (which, incidentally, is one of the “tricks”). If this is truly how people think, then we have just gained an insight into the minds of our jurors. We need to be aware of these “tricks” and be ready to either use them or to expose them.
Consider the following, with Mike’s summary:
Confirmation bias. People hate being told they are wrong. People love being told they are right. Consequently, people only look for data proving themselves right. Yet, in so doing, who knows what evidence we are missing proving ourselves wrong?
Anyone who is up on eyewitness id research knows about this. Witnesses reinforce their own memory and come to believe very strongly that what they saw is what they recollect. (As a side note, this is why it is imperative in eye id cases to attempt introducing the testimony of an expert.)
We are super simple Simons. Why do stock markets rise and fall? Why did your wife leave you? We have one or two sentence explanations of very complex events. In a sense, our need to oversimplify stems from the narrative fallacy and our inability to appreciate chance. Give us a show story that makes the world seem logical, and we’re sold.
Because of that, we prudently invest in mutual funds and worry about the child molester next door rather than the one in our own homes.
This, I think, can work in two ways. Find that two sentence theory of your case and you might be able to convince the jury of whatever your position is. Again, this is not new, but just further reinforcement that you want to keep it as simple as possible. One of the first things I learned about trying a case to a jury was to keep is as simple as possible – and simple to us lawyers is not the same as simple to lay jurors. Break the case into small, bite-sized pieces and feed as few of them as possible to jurors.
The other way it can work is to understand that the State’s case is usually made up of such a simplicity. A man saw the defendant hit someone. Hence, the defendant is guilty. Knowing that people lean toward such simple solutions teaches us that we need to unravel them carefully, and simply. Take each strand, one at a time and deconstruct it.
The simpler the better. See Occam’s Razor (or Bennett’s Chainsaw). I’ll have to read the book, but in the meantime feel free to jump in with your thoughts on this.
Eyewitness reform bill fails; DNA on arrest bill passes
Mar 25th
Just to show you how skewed the priorities of legislators are, let us compare two bills side by side.
On the left, we have the eyewitness id reform bill and on the right, the “collect DNA from the innocent” bill.
One is clearly needed, the other could be a significant violation of due process. (Yes, I do know that some states have held such DNA collection to not be a violation of the 4th. I disagree with them.)
As EyeID points out, the bill, while missing some legs, would have been a significant step in the right process. Alas, it was not to be. However, the esteemed legislators have deemed it worthy to collect DNA samples from people arrested of crimes. The argument behind this piece of legislation is that collection of DNA at the time of arrest would permit law enforcement to solve more crimes…because, you know, if you’re arrested, then you’ve probably committed a crime in the past.
Another rationale put forth by the State [pdf]- and I do love this – is that collection of DNA at the time of arrest would not only serve to solve unsolved crimes, but also prevent wrongful convictions.
The irony here, lest it be lost on you, is that the very same State opposed [pdf] the eyewitness ID reform bill, when DNA exonerations have shown that in 75% of wrongful conviction cases faulty IDs have been the culprit. Apparently, in eyewitness ID reform, there is a “pilot program” and the “jury is still out” on whether sequential or simultaneous lineups are better. Yes, you read that right. Apparently, no one knows how to use Google. There is some heavy citing of the Mecklenburg Report, which permits law enforcement to continually bury its head in the sand. The State’s testimony then quotes Gary Wells out of context (I’ve read about this being done in other states too) and ignores his response to this misquoting (I’m going on memory here – I’m sure the guys at EyeID know what I’m talking about – or if I’m imagining this whole thing, I’ll take it down).
The CT Public Defender’s response to the EyeID bill is here and to the DNA bill here. All the testimony submitted on these bills is available here.
On a positive note, the committee did pass the probation reform bill, which I discussed previously.
All the bills reported out of committee by last night’s deadline are here. For example, here‘s a bill “encouraging” bar owners to install breath alcohol testing devices. Here‘s a bill making it illegal to hang on a noose on public property, or private property without the consent of the owner.
Legal fictions and the standard of proof
Mar 20th
Here’s a legal fiction that we live with: Defendant is accused of murder. Defendant is on probation while he is alleged to have committed this crime. The state presents an eyewitness to the crime. The jury disbelieves the eyewitness and returns a verdict of not guilty. Later, relying on that very same evidence, a judge finds the defendant guilty by a preponderance of the evidence of violating his probation and sentences him to 8 years imprisonment.
What is wrong with this picture? Legally, there is nothing wrong. There are different standards of proof. A jury must find a defendant guilty beyond a reasonable doubt and a just must only find that the defendant violated his probation by a preponderance of the evidence.
In a case like this, however, it is interesting to analyze this further. All that can be gleaned from the news story about the state’s case is that it turned on the testimony of the eyewitness. The jury disbelieved the eyewitness, finding her account incredible. For the jury, there were only two options: either they believed her or they didn’t. They didn’t go back to their deliberating room and decide that they “didn’t believe her beyond a reasonable doubt”. Normal people don’t think like that; lawyers do. The jury certainly wasn’t sitting in that room saying: “well, it’s more likely than not that she was telling the truth, but it isn’t likely beyond a reasonable doubt”.
So they disbelieved the eyewitness. Zero credibility. They acquitted.
Yet, the judge, as was his right, believed the witness. Again, I don’t think a judge is sitting there thinking “It is more likely than not that she is telling the truth”. Either you believe the witness or you don’t. (I understand that you may believe parts of the witnesses testimony, but the jury clearly didn’t believe the part that had the defendant committing the crime and yet the judge did.)
So the judge is essentially telling the jury: “You got it wrong. I, one person, am right and you, six people, are wrong”. He’s allowed to do that.
Essentially, the man was acquitted and convicted based on the exact same evidence. Regardless of standards of proof, that should not be allowed to stand.
The uselessness of crossing an eyewitness
Mar 8th
Via CDW comes this fantastic new paper by Jules Epstein, which examines the problems with eyewitness identification testimony and the short-comings of using cross-examination to challenge it. It is a must read for the practitioner. The first 40 pages or so trace the history of eyewitness identification and of cross examinations and their place in our adversarial system. Then it underscores the need for expert testimony in eyewitness ID cases by shattering the myth propagated by judges and appellate courts that cross-examination will bring out any untruths.
That is because, often, eyewitness testimony does not contain untruths. The problems associated with eyewitness testimony are such that it is nearly impossible to expose them on cross.
1. Cross racial IDs: How does one go about questioning a witness regarding this sensitive issue, which has been demonstrated to be a serious problem in identifications? One cannot simply ask a witness if he/she is better at identifying people of their own race or if they are aware that studies show that such a bias exists.
2. Weapons focus:
The entire premise of weapons focus is that it is often a subconscious phenomenon—without realization of the occurrence, the witnesses’ eyes are drawn toward the weapon. It is precisely the extent to which the witness is unaware of the diverted attention that cross-examination proves ineffective.
This might be the only area where it is possible to do something on cross. As the example in the paper illustrates, the cross can elicit significant details about the weapon, thereby proving (or sowing seeds of doubt) that the witness was not focused on the face, but rather on the weapon.
However, the problem still remains that many jurors believe that a weapon increases attention overall and makes the eyewitness more reliable.
3. Stress: One can easily prove the fact of stress, but it is almost impossible to prove the impact or consequence of stress via cross. These are scientific results and ideas that cannot be elicited through the lay witness on the stand and often-times, the witness will use stress to affirm their recollection.
4. Memory Retention and the Confidence-Accuracy disconnect: This is another one that’s impossible to establish on cross. Asking a witness whether their memory has gotten worse over time and that just because they think they’re right doesn’t mean they’re right will result in them simply re-affirming their identification.
5. System variables (sequential lineup, double-blind, etc.): What can be established via cross is the occurrence of imperfect ID procedures, but not the significance, as with stress above. So the witness was not told that the suspect may or may not be in the lineup. What does it mean to the reliability of the ID? How are you going to get that out on the cross of anyone, including the cop?
So what is to be done? One method – the example used in the paper – is the one I prefer. To go over the events in a chronological order, breaking it down into tiny, tiny bits. One piece of information at a time.
Of particular importance is the technique of “time-framing”—the art of breaking the event or crime into a series of discrete acts, each in isolation.
I’d like to hear from you, my practitioner reader. What have you found useful? Has anything worked at all? I seriously doubt we’ll ever get the “aha!” moment during the cross of an eyewitness.
What I think this paper does is gives us a roadmap to arguing the admissibility of expert testimony. The offer of proof is one thing, but setting up why it is necessary goes a long way to informing the judge that he/she should admit the testimony. This paper lays out all the reasons why it is necessary to inform the jury of the pitfalls of eyewitness testimony. Use it. Even if you don’t get the expert testimony in, it gives you leverage to argue to the judge that you need to either ask jurors about it or be able to argue some of it in closing and have the judge give a detailed instruction on the fallibility of eyewitness testimony.
I’ve uploaded it here [pdf]. It’s available for free from SSRN, so I figured I could make it available here too. If that’s a problem, someone let me know and I’ll take it down.
(Courtroom sketch: Wired News/Norman Quebedeau)
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