Ferguson Shows Again Eyewitness Testimony is Unreliable

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Demonstrators protest against the verdict announced in the shooting death of unarmed black teenager Michael Brown in Ferguson, Missouri, during a rally in Union Square in New York November 25, 2014. Attorneys for the family of Brown, the 18-year-old shot to death in Ferguson by officer Darren Wilson in August, condemned as biased the grand jury process that led to Monday's decision not to bring criminal charges against Wilson. Brendan McDermid/Reuters

A man lies dead in a pool of blood, and a community is shocked. Witnesses to the killing each claim to know how the death happened. But each of the stories they tell is different.

That's the story of the medieval samurai warrior in "Rashomon," the highly-influential 1950 film by Japanese cinematographer Akira Kurosawa. It's also the story of Michael Brown, the young, unarmed black resident of Ferguson, Mo., shot dead in August by white police officer Darren Wilson, whom a grand jury last night voted not to indict over the incident.

As legal experts began pouring over the prosecution's unusual release late last night of thousands of pages of documents, including transcripts of the 12-person grand jury proceedings, interviews with witnesses, photographs, and forensic, autopsy, toxicology, crime-lab ballistics, D.N.A. and other lab reports, one thing emerged from the accounts by what appear to have been 64 witnesses: everybody knows that Brown died after being shot by Wilson, but different people saw very different things.

"Some witness statements were those of abject liars," said David Klinger, an associate professor of criminology and criminal justice at the University of Missouri in St. Louis, and a senior fellow at the Police Foundation in Washington, DC., a nonpartisan, nonprofit research organization. "But we also apparently have legitimate differences about what happened among people who apparently aren't lying."

Klinger called the phenomenon, well known in legal circles, "the Rashomon effect."

The "liars," said Klinger, might include those whose testimony is directly contradicted by forensic evidence, such as those who asserted that Officer Wilson pumped bullets into Brown's chest while Brown was lying on the ground. But witnesses who claim Brown was in a defensive posture, with his hands raised, when shot "may have built a narrative in their brains: if someone stops and is going to surrender, you going to see in your mind a surrender posture."

Not just bystanders to the event but also those directly involved can see the same things differently. (Newsweek wrote about growing doubts about relying on eyewitness testimony earlier this month.)

Take a critical scene involving Brown's presence by Officer Wilson's police vehicle. In his sworn testimony to the grand jury in September, Officer Wilson says that at that time, "I see him ducking and as he is ducking, and as he is ducking his hands are up and he is coming in my vehicle." That account is similar to what Officer Wilson told the police department a month earlier in an interview under oath.

The first of two shots are then fired from Officer Wilson's gun. But the police department's narrative summary of what it all meant is striking: "The gunshot startled Mr. Brown, Officer Wilson said. Officer Wilson said Mr. Brown stepped back. And then came forward. He had his hands up, but Officer Wilson did not see this as a sign of surrender – quite the opposite."

In "Rashomon," the samurai's killer (a bandit); the murdered samurai's wife; a woodcutter; and the ghost of the murdered samurai, speaking through a psychic, all provide radically different accounts of what happened.

Likewise, in Brown's case, competing narratives jostle in the mountain of evidence. Brown, 18, was shot and killed by Wilson, 28, on Aug. 9 in the St. Louis suburb of Ferguson, a predominantly black area. The event prompted protests and unrest that lasted for weeks and charges of police racism against black people.

At one point, Officer Wilson tells the grand jury that Brown, after the altercation and initial shots, "had the most intense aggressive face. The only way I can describe it, it looks like a demon, that's how angry he looked. He comes back towards me again with his hands up."

But a witness described Brown in that moment like this: "he had the weirdest look on his face and he started coming forward. Not in a, like he was tryin [sic] to attack him, it's like he's coming to him like to plea with him stop." [sic]

And there are yet more, widely-varying accounts.

One witness says that "I could say for sure he" -- Brown -- "never put his hands up. He ran to the officer full charge." Still another witness told the grand jury that "I personally saw him on his knees with his hands in the air." Another another said that Brown "raised his hands but he didn't raise them all the way up." Yet another says she heard Brown say "I give up" -- a surrender -- moments before Wilson fired his final of 12 total shots. And yet another witness said, "He turned around and he did some type of movement. I never seen him put his hands up or anything. I'm not sure if he pulled his pants up or whatever he did but I see some type of movement and he started charging towards the police officer."

Benjamin Brafman, a prominent criminal defense lawyer Brafman who has successfully defended high-profile clients such as rap mogul Sean "Diddy" Combs and former International Monetary Fund director Dominique Strauss-Kahn, tells Newsweek that "witnesses who see a startling or frightening event often get it wrong or assume things that may not be accurate, and when you add to the equation the very strong emotions in a case like this, it complicates matters dramatically because people want to testify."

Stressing that he was not involved in the Wilson case and saying he had not yet pored over the released evidence, he added that "at the end of the day, it's almost impossible to separate real facts from all the events that color a person's memory, especially in a high-profile case that has captured the world."