Like many trial lawyers your favorite Clearwater Criminal Defense Attorney has seen many witnesses at trial; none more effective than Eye Witnesses. While working as a prosecutor it was always devastating to deliver the final punch with the Eye Witness leaving the Defense shattered. And no wonder Eye Witnesses are so effective in trials because the Eye Witness is seen by the jury as simply a teller of truth.
|Manet, A Plum Witness
Yet Eye Witness testimony is among the most unreliable at trial. Many guilty verdicts that were proven with Eye Witness testimony have been unwound by the Innocence Project thru DNA analysis establishing Defendants’ innocence. In fact the Innocence Project lists Eye Witness Misidentification as being “the single greatest cause of wrongful conviction playing a role in nearly 75% of convictions overturned trough DNA testing.”
The Misidentification comes from two categories of variables:
1. Estimator variables include simple factors like the lighting when the crime took place or the distance from which a witness sees a Defendant, also the amount of stress during a crime because of force used or the presence of firearms or trauma a witness experiences.
2. System variables include how law enforcement officers acquire witness memory including lineups and photo packs.
As you can see the ‘system variables’ should be controlled by the Criminal Court System. New Jury Instructions in states such as Florida caution Jurors to be wary of Eye Witness identifications made during criminal trials. Yet one of the confounding things I often see is that Florida Law Enforcement Officers are not required to record witness statements nor statements made by Defendants. Often their notes of what was said by witnesses and Defendants are proven to be wrong.
How reliable is Eye Witness testimony as studied not only be lawyers but by psychologists? Here’s an excerpt from The Problem of Eye Witness Testimony found in The Stanford Study of Legal Studies:
The process of interpretation occurs at the very formation of memory—thus introducing distortion from the beginning. Furthermore, witnesses can distort their own memories without the help of examiners, police officers or lawyers. Rarely do we tell a story or recount events without a purpose…
The act of telling a story adds another layer of distortion, which in turn affects the underlying memory of the event. This is why a fish story, which grows with each retelling, can eventually lead the teller to believe it… it is not necessary for a witness to lie or be coaxed by prosecutorial error to inaccurately state the facts—the mere fault of being human results in distorted memory and inaccurate testimony.
Clearly Eye Witness testimony should be viewed with a healthy skepticism, because the goal of a criminal trial must be to provide the Defendant with the fairest trial possible and maybe along the way, to even find the truth.
Imagine being falsely accused, arrested for something you didn’t do, then prosecuted with unreliable lab failures, errors and false expert testimony, false forensics, fabricated DNA evidence or unreliable fingerprint evidence before facing a Florida Judge who sends you to a grim Florida prison. Imagine telling your loved ones throughout the years of this torturous ordeal that you’re innocent while feeling their faith in you ebbing away with your freedom. Yet Clearwater Criminal Defense Attorneys fight for your innocence till a Judge agrees (we’re imagining after all) that you’ve been wrongfully convicted and you, blinking from brutal prison conditions are finally set free.
|Renoir, Self Portrait, 1910
You might think the State of Florida owes you something for their failures and their mistakes in a failed investigation, prosecution and conviction of an innocent man.
Yet the wrongfully convicted in Florida are not being compensated. Four years ago Florida passed a law granting compensation for those wrongfully convicted by Florida Courts and Prosecutors. How much is wrongfully taking someone’s freedom worth? Not much if you’re unlucky enough to be wrongfully convicted in Florida, as only three people have received any compensation, according to press reports.
This is true because Florida requires that the wrongfully convicted have clean hands with no prior record whatsoever for any compensation. Twenty-two people have been exonerated from murder charges since 1972, hundreds have been exonerated from other convictions. all that should matter is whether there has been a false conviction, if so there should be compensation for that wrongful conviction as a matter of fairness. Here is a comparison of how other states compensate for wrongful convictions and arguments on why there should be compensation for wrongful convictions.
Your Clearwater Criminal Defense Lawyer is reluctant to tell how much compensation the wrongfully convicted receive as the folks who read this Blog are apt to get themselves arrested and convicted in the belief that I’ll find new evidence, get the conviction reversed and sell the movie rights, all for a law that pays $50,000 per year incarcerated with a cap of two million dollars. Forget the crime just write the screenplay and we’ll split the money.
The Washington Post recently found that the government provided false forensic testimony leading to convictions in hundreds of cases and then inexplicably failed to give this information to the Defense for possible review of wrongful convictions. The reliability of expert forensic testimony is usually taken for granted in cases in Tampa Bay and Pinellas, even by a Clearwater Criminal Defense Attorney who in this blog has written about faulty forensic crime labs leading to unacceptable errors and false testimony.
What are the weaknesses and strengths of Fingerprint analysis in criminal trials in Pinellas and Hillsborough? How accurate is Fingerprint evidence in Florida Courts?
When a fingerprint is detected at a crime scene, later analysis and comparison depends on the age, integrity, quality of the original latent print and how it was processed. As the articles linked with suggest there are significant hurdles for law enforcement to successfully overcome to gain a fingerprint which will be useable for matching purposes.
Reliability weak points
Matching and interpreting prints can be subjective and vary between examiners, whose level of training can range from formal programs to informal monitoring.
One case study
Houston Police Department Crime Laboratory
In 2009, a Houston police crime lab audit found irregularities in more than half of fingerprint examinations sampled. Officials hired consultants to review 4,300 cases and work through a 6,000 case backlog.
Much of the problem of making an identification based on fingerprint evidence comes into the subjective play over what is a reliable and useable latent print. For example, even as some specialists believe in the impossibility of finding usable prints of a Defendant on a murder victim’s body, other experts believe that latent prints on human skin are a hidden evidence which can, with proper care be uncovered.
When a useable fingerprint exists then the crime scene print is matched to the subject, who one hopes isn’t a Pinellas Criminal Defense Lawyer. Yet the matching itself is fraught with uncertainty as experts do not always agree on what constitutes a match. In an interesting news release FDLE (Florida’s FBI) noted that it’s ‘improved matching technology’ had tripled the number of hits within its system. But are all the hits true matches or did FDLE merely reduce the criteria upon which it counts a match?