12 Feb 2013
If you were a member of a jury in a criminal case, you would be exposed to various categories of evidence. Some of it may be circumstantial, and some of it may be direct. Circumstantial evidence requires an inference in order to make the connection between the particular evidence and a conclusion. An example would be finding a fingerprint at the scene of a crime. You could infer, based upon the evidence, that the person whose fingerprint was found was present at the scene. Direct evidence, on the other hand, seeks to establish a fact in and of itself. The clearest example of direct evidence is an eyewitness identification of a person in the act of committing a criminal offense.
You might think, as a juror, that your job would be a lot easier when eyewitness testimony is available in the case. It involves less supposition if a witness gets on the stand and says, “I saw the defendant commit the crime.” Your job would then be to assess the credibility of the witness, and if you find the testimony believable, a conviction is a virtual certainty.
There is, however, a problem with this analysis, and it is called misidentification. While there may be cases where an eyewitness is out and out lying, more often the question becomes whether that person is simply mistaken. The issue is not an isolated one; it is estimated that in about three-quarters of all convictions later overturned because of new DNA evidence, the original conviction was based upon eyewitness identification – or more accurately, misidentification. Texas, by the way, leads the country in cases in which post-conviction DNA results in a conviction being overturned. We have previously reported on this issue in our blog of May 25, 2012 (Wrongful Convictions in Texas).
Those of us involved with the criminal justice system know that when a witness testifies, his or her memory can be affected by many things. Among them are the witness identification procedures utilized by law enforcement. An extreme example would be a witness who identifies a suspect’s physical characteristics, then is asked to pick from among half a dozen people in a simultaneous photo lineup, only one or two of which share the characteristics identified by the witness. This greatly increases the chance of a positive, yet incorrect, identification. Experts in the field have argued for some time that providing sequential lineups (that is, one at a time), reduce the likelihood of picking out the wrong person.
We’re pleased to note that the Austin Police Department last month initiated a new policy that calls for sequential lineups in most cases. Hats off to Chief Art Acevedo, who is quoted as saying that he’d sooner not arrest anyone, than arrest the wrong person.
Law Office of David D. White, PLLC
1205 Rio Grande Street
Austin, TX 78701
(512) 369-3737