When Our Eyes Deceive Us

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In their paper, Wells and Quinlivan suggest a host of tricks the mind can play, ranging from incorporating innocent "feedback" from police investigators to increasing certainty in one's shaky memories that become reinforced over time. Add to that Thompson's determination to regain control over her life, and her need to believe that the justice system was just, and it would have been doubly hard for her to look at a police lineup that, as it happened, did not include an image of the real rapist, and walk away. To hear Thompson and other victims tell it, being part of a system that identified and ultimately convicted the wrong man became another form of victimization, and for that reason alone the system needs to be reformed.

The problems with the eyewitness-identification system cannot be laid at the feet of crime victims any more than they can be blamed on police investigators. Wells's argument for reforming our eyewitness-identification system is that the incentive for the police to subtly nudge our memories is not only uncorrected by the justice system, but also sometimes rewarded by it. Wells wants the Supreme Court to revisit the scientific basis for its 1977 decision.Whether or not the John Roberts court wishes to take up the issue of innocent prisoners—there is one test casepercolating through the New Jersey courts—a few states and cities have used innocent-exoneration scandals to rethink their eyewitness-identification practices. Proposed changes include showing victims photos sequentially and explaining that the perpetrator may not be included in the lineup, and ensuring that whoever conducts the lineup has no knowledge of which person is the actual suspect.

This is not an issue that tracks the usual left-rightdivide. Some of the most zealous reformers of the eyewitness-identification process are lifelong conservatives who recognize that the credibility of the whole justice system is on the line each time an innocent man goes to jail and a guilty one walks free.

Lithwick is a NEWSWEEK contributing editor and a senior writer for Slate. A version of this column also appears on Slate.com.

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Posted By: Demand Justice for Tony Ford @ 07/18/2009 7:09:05 PM

I draw your attention to the case of a man held on death row since 1993 based on erroneous eyewitness testimony - Tony Egbuna Ford. He remains there fighting for his lifte to this day. The issuess with his ID are as follows:
* Viewing a 6 person photo spread with Tony at position 5, the witness first picked out number 4 as the perpetrator. This was written over with the number 5 later (by the detective in the case). We have copies of both the original and the amended statements. This has never been explained and was never challenged by Tony's trial counsel.
* One of the two witnesses identified Tony AFTER his picture had been all over the news as the prime suspect, and after having time to speak to the first witness (her sister) and discuss the photo spread (both sisters were shown the same photo spread)
* One of the two "eye witnesses" stated she had her head buried in a pillow the whole time of the incident
* On the day of trial both witnesses were asked (improperly) to confirm their identification of Tony outside of the courtroom. The prosecution pointed to Tony and asked "does that look like the man?". The witnesses took a long time to look at him and answered only that they weren't sure but it "could" be. This was witnessed by the court reporter who came forward in 2006 and spoke to journalists then researching the case for the show "The Wrong Man". The court reporter stated it was the only case that had ever caused him to be upset since he knew as soon as he witnessed it that Tony's trial would not be fair.
* This was a cross racial ID - under high stress.
* None of the other men in the line ups the witnesses were shown looked even vaguely like Tony or the true perpetrator.
* Eyewitness evidence was the ONLY evidence against Tony.

Further information on Tony's case is available on www.tonyegbunaford.com - including a study done by an eyewitness expert (whose assistance was denied at trial) which shows that the photospread was heavily weighted towards Tony being picked out.
We continue to fight for justice.
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Posted By: Jakes_Friend @ 03/24/2009 1:37:59 AM

Thank you for this insightful article. It rekindled memories of my personal experience over 20 years ago.

I was mugged from behind one early morning as I headed to the bank with a night deposit for my employer. I heard a noise behind me, spun around and stared my attacker straight in the face. He had a table leg as a club, and his intent was clear. I quickly turned away with my arms around my head, but he hit me hard and I fell to the ground dazed. After I regained my senses, I called the police, had the paramedics check me out, and then drove home. I filed a police report, and gave as clear a description of the guy as I could: hispanic or native american, with brown skin, straight black hair, dark brown eyes, broad, round pudgy face with high cheek bones, and some acne scars. A few days later, a detective interviewed me, and corroborated my story and my description of my attacker.

Nothing seemed to come of this incident, then about three years later I received a call from the County Sheriff's office. They said they thought they had caught the guy who had mugged me. I agreed to look at a photo line-up. The Detective explained that he was going to show me only three photos. He said that all three of these men had long criminal records, and that all of them should be behind bars. He told me it didn't really matter which one I picked, only that with my I.D. of one of them, one more bad person would be off the streets.

I looked at the three pictures. All three men fit my description. It would have been so easy to simply pick one, any one, especially with the Detective's comments. But I couldn't do it. I could not in good conscience say that one, or the other, or any of these three men was definitely the man that attacked me. Three years is a long time to remember a fleeting look at a desperate man in the act of swinging a table leg at your head. The Detective was very disappointed, but told me he respected my decision.

Its funny, but despite the impact this event had on me and my family emotionally, I have always felt lucky. I was lucky that day, because he could have chosen a knife or a gun, but only brought a table leg. I have never regretted my decision to not "finger" one of those three men. No matter what else they had done, I was not confident beyond a reasonable doubt that any one of them had done this crime, that early morning, to me...
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Posted By: FrankLa @ 03/22/2009 8:55:17 PM

Great article. A great follow up is the book: Witness for the Defense by Loftus and Ketcham. There are numerous examples of failed eyewitness accounts often where physical evidence trumped eyewitness memory

It also goes into how our memory works and why it definitely doesn't work like a VCR in spite of what juries want to believe.