Judge Precludes Questioning on Cross-Race IDs, Witness Gets 2 of 3 IDs Wrong, Man Still Goes to Jail

Donald Glenn Flack, a black man, was accused of assaulting a white woman at a mall in Knoxville, but when the victim attempted to identify her attacker from a photo in court, she picked another man -- even with Mr. Flack sitting directly across from her at the defense table. In the initial police lineup a month after the assault, she also picked someone other than Mr. Flack. The only time she identified Mr. Flack was when the prosecutor asked her if her attacker was sitting in the courtroom, at which point she pointed to the only black man sitting at the defense table. In the words of her attorney:

"I'm sorry, that's not an identification," he said in his closing argument. "She's one for three, that's less than 50 percent."

Further, Mr. Flack's brother testified that another man, James Blance, committed the crime. When Blance was called to testify, he invoked the 5th and refused to testify.

Despite the victim's identification of someone other than Mr. Flack on two out of three occasions, and other evidence suggesting an alternate suspect, the Knox County Court prohibited defense counsel from even questioning the investigating officer about the well-known difficulty that members of one race have when attempting to identify members of another race, a problem which is amplified by the presence of a weapon, stress, and a very short exposure time, all of which were factors in this case.

Notwithstanding the serious questions raised about Mr. Flack's culpability within the constraints defined by the court, the all-white jury convicted Mr. Flack and sealed his fate of up to 15 years in prison. This case is another illustration of the importance of expert testimony when it comes to the reliability of eyewitness evidence. Cross-examination and a compelling closing are rarely enough to shake a witness who honestly believes that she's right, but happens to be wrong.

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The Great Engine of Truth Not So Great for Eyewitness Evidence

I recently received a copy of a law review article on the effectiveness of cross-examination for getting at the truth of eyewitness evidence. Prof. Jules Epstein explores in depth the efficacy of the "great engine of truth" as applied to eyewitness testimony, and reports that it falls far short. (Cite: Epstein, Jules, The Great Engine That Couldn't: Science, Mistaken Identifications, and the Limits of Cross-Examination, 36 Stetson L. Rev. 727 (2007)).

Prof. Epstein frames the issue with a quote from the Supreme Court case of Watkins v. Sowders:

In Watkins v. Sowders, the Court found identification testimony no different from other categories of proof and cited Wigmore's dictum in holding that cross examination would suffice to establish or debunk the reliability of the evidence as follows:

[W]hile identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart - the ‘integrity’ - of the adversary process.

Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification - including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.

Epstein points out that "[a]t least two flaws are manifest in the Watkins
analysis." Specifically:

Given the significant incidence of mistaken-identification convictions, it is not clear if one can claim that such testimony does not go to the integrity of the adversarial process. Several decades of scientific study raise the question whether cross-examination can in fact secure reliable verdicts in cases of mistaken identification.

Following a detailed and extensively researched analysis, Prof. Epstein concludes that the highly revered truth-seeking tool of cross-examination, while perhaps effective at rooting out liars, is utterly ineffective at uncovering the truth when faced with a witness who is confident, but honestly mistaken about what he or she remembers -- which accounts for the majority of cases in which mistaken identification has led to wrongful conviction.

In short, cross-examination was developed to counteract perjury, not genuine mistakes.

[T]hese accolades also show the limits of cross-examination and its inutility in confronting the truthful but mistaken witness, or in demonstrating the lessons of the science of perception, memory, and recall. A tool designed from its inception to root out liars is ill-suited for the task of exposing the risk or reality of mistaken identification.

Epstein also goes into some detail about the problems associated with getting the results of scientific studies on eyewitness memory in front of juries, without the aid of expert testimony. For example:

Q: Ma'am, you've told us that being robbed was a highly stressful event, correct?
A: Yes.
Q: And you must know that the higher the stress, the more memory and perception get distorted. In other words, the more stress, the more it is likely that people make mistakes. You know that science has proved this, don't you?
A: Look, I don't know about studies. But I sure know what I saw. That man did it--this event was a powerful one, I'll never forget it.

That, coupled with a prosecutor arguing the "she'll never forget that face" line in closing, and a defense attorney is going to be hard pressed to sway a jury's intuitive belief that the identity of the perpetrator is "burned in the mind" of the victim forever. That is, without an expert to testify to the uncontroverted findings of 30 years of social science research that counteract that widely held -- but false -- intuition.

Prof. Epstein makes a strong case for the admission of expert testimony on eyewitness factors, as well as detailed jury instructions, to counteract jurors' "near-religious faith in the accuracy of eyewitness accounts." He concludes that "ongoing reliance on cross-examination as a great engine will, sadly, contribute to the continued phenomenon of wrongful convictions based on eyewitness testimony."

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Eyewitness Reforms Meet "Resistance from the Very People Who Should Care Most about Justice for All"

Professor Katherine Ramsland of DeSales University has a new commentary in the Philadelphia Inquirer on the widespread resistance among law enforcement officers to policy changes designed to make law enforcement more accurate and effective. At the top of that list is a set of proposed measures known to make identification procedures more accurate, and less likely to pollute witness memory with police suspicion.

Prof. Ramsland likens the resistance that advocates for changes in lineup procedures are facing today, to police resistance to mandatory Miranda warnings in the 1960s.

They said that articulating those rights hampered their ability to get confessions and released more criminals on technicalities. In other words, if an arresting officer forgot the warning or failed to notice that the subject was not competent enough to waive protected rights, the case could be tossed.

The climate is much the same surrounding efforts to modify lineup procedures to comport with research that has pointed the way to a more reliable set of practices which are less likely to result in misidentification, and ultimately wrongful conviction.

Now we are seeing a host of new policy changes on the horizon. These changes will help minimize false convictions. And again, we see resistance from the very people who should care most about justice for all. It is almost as if the law-enforcement establishment believes it is more important to convict and then let the system sort it out. But those who believe this have not fully grasped the harm some current procedures have perpetrated on the innocent. Law enforcement should welcome - not reject - changes designed to protect.

(Emphasis mine.)

Ramsland also details what we know about wrongful convictions resulting from misidentification, and the likelihood that the problem is far more widespread than the DNA exonerations are able to reveal.

Prof. Ramsland's frustration at the resistance to the clear mandate of the social science community that has scrutinized these problems for over three decades is unmistakable.

It is almost as if law enforcement does not want to identify and exonerate the innocent. Eight states do not yet mandate giving inmates postconviction access to DNA analysis. Five states defeated bills intended to change policies on eyewitness identification. The California State Sheriff's Association opposes bills that require officials to record interrogations and corroborate informant information; the purported fear is that such procedures would create loopholes for defense attorneys to exploit. This organization also opposes new procedures for suspect lineups. Research has revealed that witnesses, when asked to pick from lineups, make comparisons among those lined up, which can alter their memory. Or they may simply choose the one who "looks" criminal. (The recent study by the Chicago police department that "proved" that current methods worked just fine was significantly flawed.)

(Emphasis mine.)

The English jurist William Blackstone famously said: "Better that 10 guilty persons escape than that one innocent suffer." Apparently that's literary fluff to some people. They should talk to exonerated convicts.

That doesn't sound like a bad idea.

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