Archive for the ‘“Eyewitness Testimony”’ Category

Let’s review what’s happened at trial:

It’s undisputed that attorney Greg Clark was shot to death on February 6, 2008. At approximately 1:55 PM, he was outside his house on the corner of Oakforest Dr., and Sentinel Rd, in Rockford, using a snowblower to clear snow from sidewalk adjacent to his driveway. Someone came up to him, shot him three times in the back and left. Attorney Clark was on the ground and dead within minutes of being shot.

There was a lot of procedural testimony from first responders and police detectives about what happened after the shooting; who responded to what event, about their job responsibilities, chain-of-custody testimony, what everyone physically did at the murder scene and what evidence and witness reports detectives collected and who they spoke to. HOW DOES MOST OF THAT TESTIMONY MATTER?

IT DOESN’T! The only part of trial testimony that matters as to whether we have the truth of who killed attorney Greg Clark is the reliability of the State’s evidence which they present and allege that it connects Richard Wanke and Diane Chavez to the Greg Clark’s murder scene and then, ONLY BY IMPLICATION, to some involvement in Greg Clark’s murder. So, let’s look at what this evidence consists of:


The State presented most of their prime physical evidence consisting mostly of clothing collected from attorney Greg Clark and suspect Richard Wanke on 2/6 – 2/7/08, phone logs, the 911 tape, an audio tape recording of 5/7/07, meeting between attorney Clark, Richard Wanke, and Diane Chavez, certain oral statements made in court at Richard’s Wanke 2006 burglary case both Clark and Wanke as documented in court transcripts, a photo of Diane Chavez’s ’98 Dodge Caravan, estimates of travel times and routes between Clark’s home and Wanke’s Rockford apartment, part of a gun strap found on the ground at the murder scene, computer address searches, gloves, State driver records, and vehicle search results, the contents of two photo line-ups, and bullet casings .

Forensic experts testified at length about the relevant DNA, fingerprint, gunshot residue, and comparison testing they did on the bullet casings, clothing, gun strap, gloves, and van. The expert testimony is only relevant in showing that the same weapon, a gun, was used in two different attacks on attorney Greg Clark. One occurred on November 7, 2007, and the other on 2/6/08.
The State maintained that although the rest of it’s forensic testing results were negative, that they are also inconclusive That’s trying to put a good spin on it.


The State found NO incriminating DNA, fingerprint, or gunshot residue on any of the tested items. The only DNA positives it found for Richard Wanke were on items of his own clothing and not those of Greg Clark’s.


There was no eyewitness to attorney Greg Clark’s shooting, so the most important witness testimony concerns the description of any stranger who eyewitnesses saw in the vicinity of the murder scene closest to the time of the murder and the description of any vehicle they drove.

The suspect in the van

Phyllis Clark, attorney Greg Clark’s widow, was the most immediate witness to reach the murder scene. She testified that her husband was outside their house snowblowing for about half an hour before she heard gunshots. She said she went to the window of their house and saw her husband on the ground. She said she saw a man 5’7’’ leave her husband’s side and enter the passenger side of a dark blue van on the street which then headed toward Sentinel Dr.

Various neighbors arriving home in the subdivision reported seeing and driving behind a dark blue van as it entered the subdivision on Sentinel Rd., from the north and headed towards Clark’s house minutes before the shooting. One neighbor passed a dark blue van on the driver’s side when it pulled over to the curb by Clark’s house, and another encountered a dark blue van as it pulled out of the subdivision shortly after the shooting. and turned west onto Rote Rd. Witnesses mostly described the van they saw as being dark blue in color. One said it was blue-green in color. Most said it was a Chrysler product and a Town & Country van. One said it had gold wheels. Each identified the State’s photo of Diane Chavez’s ’98 Dodge Caravan in court as the van they saw on 2/6/08. Several other witnesses described other suspicious and different color and make vehicles they saw in the neighborhood on 2/6/08. No witness saw or recalled the license plate number of the van.

The State photo of Diane Chavez’s ’98 caravan below: the van in this photo only appears to be dark blue because of the type of lighting used by police. There were plenty of dark blue vans in Rockford that looked like this. A few of them are still driving around. No one knows how many dark blue vans there were in total in Rockford in 2008, because the police search of registered vans only searched for 1998 year vans. Nor did they check van registrations from other surrounding cities. And, if you look closely at the hood of van in this picture, you can partly detect the van’s real color.


The actual color of Diane Chavez’s ’98 van: What difference does a subtle change of color make? EVERYTHING…

If the witnesses all saw a dark-blue van with gold rims on 2/6/08; it wasn’t Diane’s van. It was instead, the normal dark-blue color van which Chrysler has offered as a color for more years. Some of those regular dark-blue older Chrysler Town & Country and Caravan vans are still seen in Rockford today. In 2008, Ford also had a dark-blue Windstar van which can be still be mistaken for either Chrysler or Dodge vans.


p1020319The photos above are not Diane’s van. We can’t access her van because the police still have it, but these are the normal light photos of a van which is the same model and year as Diane’s: a 1998 Chrysler Caravan. It is a PURPLE, not a BLUE van! And if the eyewitnesses had seen Diane’s van up close and accurately, they would have described purple, not dark-blue. Chrysler offered the paint color Amethyst (Purple) on it’s Dodge Caravans and Chrysler Town & Country vans for several years through 2000. The color is still in use by other car makers today.

The allegations against Diane Chavez.

On this Home page of our website is the above tab, “About Diane Chavez”. We direct you to click on it and review the fallacious evidence the State uses to allege that Diane Chavez was present at Clark’s house on February 5, 2008, the day before the murder and during her lunch hour. The State’s implication is that Diane Chavez somehow assisted Richard Wanke in killing attorney Clark. The State is wrong and that its “evidence” against her is both false and manipulated and makes one question the accuracy of it’s case against Richard Wanke.

Back to the Man

Except for Clark’s wife, the eyewitnesses all saw the man in the van only as he sat behind the wheel of it and drove the van. They uniformly described the driver of the van as an older, white male. Their best estimate was that he was in his 40’s. The police detectives later testified that they were sent looking for a suspect described to them as having “grayish” hair and a “scruffy” beard. At trial, most witnesses seemed to qualify their mention of gray hair to being brownish and pulled back in a pigtail. A couple mentioned eyeglasses and one mentioned large eyeglasses worn by the man. Most said the man seemed to be wearing dark clothing, and one witness was adamant he recognized by the sleeve he saw that the driver wore a black demin jacket like one of the State’s exhibits. Every witness identified Richard in court as being the man they saw driving the van.

There was an unexplained discrepancy in the eyewitness testimony concerning who was in the van. The testimony of Clark’s wife, who saw a man enter a van on the passenger side before it left, and a then 7 year old child who testified that she saw a white man standing by the passenger side of a van by Clark before the shooting. If every witness saw the same dark blue van, then there was possibly more than one person in that van. One witness testified that they followed a van which pulled over to the curb by Clark’s house, which would be the right side curb of Oakforest Dr. At least two other witnesses said they followed a van as it entered the subdivision heading towards Clark’s house. Clark’s wife and the child witness saw the van parked facing the opposite direction: on Oakforest Dr., but pointed towards Sentinel Drive.

Every eyewitness testified that police showed them each six photos of different suspects on 2/6/08, and each witness in turn failed to identify Richard Wanke’s photograph on the day of the murder as the photo of the man they saw driving the van. Mrs. Clark too failed on 2/6/08, to pick Richard Wanke’s photo out as being the man she saw that day leaving the body of her husband. Each of them only days later called by the police to report that Richard Wanke, was the man they saw, after they saw the following several articles and photos published in the Rockford-Register Star on February 9, & 10, 2008.

What did all the eyewitnesses see and read in the Rockford Register-Star before they identified Richard Wanke as the suspect?

The articles the Rockford Register Star published on February 9, and February 10, which named Richard Wanke, and Diane Chavez as suspects in the Clark murder investigation even though Richard Wanke had not yet been identified by eyewitnesses as a man in the blue van.

The first article, “Double drama in court” which appeared in print on February 9, 2008, is a front-page triple article in one which continues on the next two pages inside. It shows a photo of Richard Wanke with dark hair and a beard. It identifies both Richard Wanke, and Diane Chavez, as police suspects in the Greg Clark murder investigation by saying that both a judge and attorney linked them to it in court. A chronology of Richard Wanke’s 2006 burglary case is at the top of the second page along with an article about the shooting aftermath at the bottom of the page. That second page is almost a full page devoted to information about the murder.

The article “Jailed duo helped each other” appeared the next day on February 10, 2008. Each of these Rockford Register-Star identifications and articles clearly influenced each of the eyewitnesses in this case. On our blog under this Home page tab “Unreliabiltiy of Eyewitness Testimony” is information about how easily and unconsciously eyewitness recollections are influenced by many factors and are often erroneous no matter how certain witnesses feel and testify about what they saw. You should review this information.

Bottom Line:

February 6, 2008, was one of the heaviest snowfalls in Winnebago County. At times it was almost a blizzard outside. Snow was heavy on the ground at the time of the shooting and snow was falling. Most of the eyewitnesses in this case were arriving home because of the weather. They were focused on driving in the snow and keeping their windshields clear of it. They were not that focused on the vehicles around them or the drivers of those vehicles. If they had been and if they each saw the van and the man driving it as clearly and completely as they claim, they would recall at least part, if not all of a license plate, the make and color of the van correctly, or would have agreed on the physical description of the driver, what he was wearing, and whether there was one person or two in the van.The eyewitness testimony in this whole case is unreliable.


The State played an audio micro cassette tape to the jury which allegedly contains the audio of a 25 minute meeting between Attorney Greg Clark, Richard Wanke, and Diane Chavez on 5/7/2008. It may actually be an earlier March 2007 meeting. Much of the tape is inaudible and difficult to distinguish. The Rockford Register-Star printed a small portion of the conversation on it:

“…Wanke wanted Clark to use photos of a minivan owned by Chavez in the burglary case. Clark questioned the significance of someone keying Chavez’s van or using photos of windshield wipers.

“I don’t know. That’s not my job,” said a man investigators identified as Wanke.
“Whose job is it? Whose job is it to determine materiality?” a man believed to be Clark responds. “Is it my job? What percentage is my job and what percentage is your job?…”
RRSTAR article about the audio tape
The State wants us to believe that Richard Wanke and Greg Clark had such an “tumultuous” relationship; that it was antagonistic enough to cause Richard Wanke to kill his attorney. The State claims that statements made by both such as the above and the text of court transcripts from Richard’s 2006, burglary trial for the theft of a laptop computer prove that Richard’s “state of mind’ motivated him to kill attorney Clark. The State exaggerates what hostility took place between attorney Clark and Richard Wanke and wrongly blames Wanke for all of it.
This audio tape exchange, shows Clark not cooperating with Richard Wanke when reviewing evidence that Wanke feels may be used at trial. Clark puts Wankd down when he tries to point out that the light-blue van had obvious physical damage that a State witness failed to note on the van he saw at the burglary scene and which he described to police as being silver in color. Keying, wipers, etc can be relevant when a witness claims it was your van he saw up close but then somehow misses seeing what he should have. Wanke didn’t know if what he had was useful for trial. He was consulting Clark, and Clark treated him poorly and was obviously antagonistic. The full length of the tape contains similar content but no obscenities are exchanged and there is a reconciliation of sorts at the end of it. The tape is not the “smoking gun” the State wants us to believe it is.
The court transcripts of Richard’s burglary case show it was attorney Clark, not Wanke who first complained to the court on March 7, 2007, that the other was not communicating with him. Even then, both Clark on page three says there was no hostility between them and Richard agreed on page six saying, that they were very courteous with each other, and it was just a difference of opinion.
The March 14, 2007 transcript

Wanke merely spoke up in his own defense. Attorney Clark pushed the court to admonish his client. If the court transcripts indicate resentment by either, it wasn’t Richard Wanke, but Clark who later on May 7, 2007, on page 13, told the court that he wasn’t used to being left out of the loop by a client and that he didn’t like it. Page 24 of May 7, 2007, Clark was upset enough with Wanke that he stood back when the judge pushed Richard Wanke to trial.
The May 7, 2007 transcript

Richard Wanke didn’t know at the time what was going on. He didn’t know that Clark had everyone meet the Friday before without him on May 4, 2007. He didn’t know that Clark had confessed that he advised Wanke wrongly about the length of his potential sentence and was requesting a continuance for that reason.

The May 4, 2007 transcript

May 4, 2007, and May 7, 2007, are the only two times in the nearly three year course of Richard’s burglary case where there is  emotion in the court record the State is now trying to use, and it was attorney Clark who was upset, and who reacted poorly, not Richard Wanke. Richard Wanke was out on bond in 2/06/08; something few defendants who lose jury trials are allowed. This was due to the court’s recognition of all the years in which he had complied with all court rules and was civil.
Bottom Line:

Defendants and attorneys regularly disagree about trial strategy and the relevance of evidence. Both sides hash out their arguments in court and in court filings. No revelation about that. Defendants are often held in contempt of court when they speak out of turn or disrespect someone. That did not happen here. There were no public arguments between Greg Clark and Richard Wanke. They were very civil to each other inside and out of court no matter what tension existed. Clark had represented Richard Wanke for six years (not one year as the State maintains) amicably before on another case, and his mistakes created the pretrial tension between them in Wanke’s burglary case. Had anyone of the court; the judge, the attorneys, the bailiff’s etc., seen threats or true anger exchanged between Clark and Richard, the Court would have immediately stepped in to intervene. Attorney Clark would have been removed from Wanke’s case. Richard Wanke would have been held in contempt of court or even criminally charged with misconduct. Violence of any sort is not tolerated in courts and the State has no witnesses who can show that any disagreements between Clark and Wanke exceeded the usual tension generally present in criminal defense. Richard was not a legal novice. He knew well that Clark’s death would not dismiss his case or improve his lot. At best, it would just cause a new attorney unfamiliar with him to do a worse job of advocating for him at sentencing. At worse, he could anticipate receiving the worst sentence possible as a murder suspect.


The lack of forensic evidence against Richard Wanke, the unreliability and inaccuracy of the eyewitness testimony against him, and the State’s attempt to make a mountain out of a molehill regarding Richard Wanke’s alleged motive to kill Greg Clark does not prove that Richard Wanke killed attorney Greg Clark. Far from it. Stay tuned, and in a couple of days, we will explain to you how the State’s evidence and the murder investigation instead proves that Richard Wanke did not kill Greg Clark! And, we will show the bias on the part of Rockford Police Deputy Chief, Greg Lindmark, who headed this investigation that made Richard Wanke the suspect.



There is reason for the public to shudder at the high number of wrongful convictions coming out of the state’s judicial system, even if they are not your hands gripping the steel uprights of a prison cell.

It means that real perpetrators are free to commit more crimes.

“The consequences are too grave for not using available, proven methods of preventing wrongful convictions,” said Stephen Saloom, policy director for the past eight and a half years of the Innocence Project. “It’s outrageous.”

What Saloom referred to was the failure, once again, of the New York state Legislature to enact reforms that would require law enforcement and prosecutors to videotape interrogations and use double blind lineups.

Bills requiring both methods be used and taught to police trainees died in committees.

“We know that our criminal justice system relies on unreliable forms of evidence — false confessions and eyewitness misidentification — proven methods are readily available and prosecutors and law enforcement don’t want to be required to use them,” Saloom said.

via Prove innocence of innocent – Times Union.

Eyewitness testimony can be blurry, so juries must weigh it carefully, says New Jersey’s top court, citing such research findings as the following:

A report by the Innocence Project at the Benjamin Cardozo School of Law that out of 254 persons wrongfully convicted but later exonerated by DNA evidence, 75 percent had been found guilty on the basis of faulty eyewitness identification.

A British study of 3,100 lineups found that 35 percent of witnesses had mistakenly fingered lineup “fillers.”

An experiment involving a staged crime and 500 unwitting bank tellers and store clerks found that nearly one-half later made mistakenly identified “perpetrators.”

A university study in which students made computer “composites” of their professor found that only 3 percent of other students in the experiment who knew him could match him to the composites.

Numerous studies reported that identification accuracy deteriorates sharply under stress and additionally with the distracting presence of a gun.

Identification accuracy starts to degrade significantly within two hours of an incident, multiple studies have concluded.

via Bad calls by witness ‘umps’ – The Trentonian.

The uninformed public gives the testimony of “eyewitnesses” far too much credibility. Do any research on the reliability of eyewitness testimony and you find that not only do people not remember correctly what they think or are certain that they saw, but you learn that all too often studies show that ideas and suggestions made after an incident happens or the desire of an individual to be “helpful” ends up tainting or rewriting peoples memories of events. The final memory that people believe is accurate is fragile and can bear little resemblence to the truth.

People should be a little more self-aware of how fleeting and susceptible their own memories are about events that happen around them and their own interactions with other individuals, and that we should know that our memories often cannot be relied upon. You would think that we would be very cautious in expressing certainty based upon our observations; particularly when the lives and well-being of others are affected by what we claim we saw or know.

Yet humans continue to bear witness to false memories and the consequences upon others, as in the two articles below, is disastrous. Jacques Rivera, served 21 years of an 80-year sentence before the appeals court accepted the recanted testimony of Orlando Lopez, the man who fingered Rivera for murder and who originally testified against him. Even now, Rivera is not free, but remains held without bond in Cook County jail, (a jail no one wants to be held in) waiting for the state to decide if it will still retry him for the 1988 murder. Inmate Jamie Snow, has not been so lucky. Even though his attorneys state that a former police officer who is now an inmate can discredit a prime witness’s claim that he saw Snow leave the scene of a murder, and despite that recantation of the testimony of other witnesses, Snow was still recently denied the chance for a new trial. He is just fighting to get his argument heard without any assurance that his life sentence will be overturned.

New trial for man convicted in ’88 murder after witness recants

Inmate appeals denial of new trial in 1991 killing

IL needs a law which prevents eyewitness testimony to either be used alone or in conjunction with just circumstantial evidence to convict anyone of a crime, particularly serious crimes. The consequences to those wrongfully convicted are too great and the error rate in eyewitness testimony is too high to justify such heavy reliance upon it in those cases. There are too many wrongfully convicted, particularly in IL, and too few resources to help them after they have been screwed. Thank goodness for the efforts of Northwestern University Center on Wrongful Convictions and those individual attorneys who, in these tough times, still care enough to do the hard work and investigation required to prove the innocence of those convicted only by eyewitness testimony or circumstantial evidence.

The DNA exonerations not only have corrected injustices on a scale previously unimagined, they also have provided an unprecedented opportunity to learn about the causes of and remedies for error in criminal cases. These cases reveal not isolated mistakes, but systemic flaws. They reveal that wrongful convictions have identifiable causes, causes that can be addressed. Because so much is at stake, they must be addressed.

via They didnt do the crime – JSOnline.

Chuck and Josh, the co-hosts of the popular podcast “Stuff You Should Know” take a look at The Innocence Project and with astonishing statistics unveil some misconceptions about how well our police and justice system work.

Listen to it by clicking here.

Amanda Knox and Raffaele Sollecito were convicted in an Italian court yesterday of complicity in the murder of Meredith Kercher (Amanda’s roommate). Amanda was sentenced to 26 years in prison and Raffaele to 25 years.

Are they guilty? Who knows? In our opinion, if they had been tried in a US court, we believe that there would have been sufficient basis to find “reasonable doubt” regarding their guilt. They may not be the most “likable” individuals, and they may have acted unwisely at many times, but that is far from being two “cold-blooded, brutal” murderers.

The immediate response of many in the US is to view the this case as the Italian prosecution’s attempt to convict Amanda and Raffaele for the “inappropriate behavior” and amoral lifestyle of two young Americans living abroad. Timothy Egan’s December 2, 2009, Opinionator, online commentary article in the New York Times at is typical of the degree and nature of the US public outrage being expressed regarding the judgmental attitudes shown by Italian society towards what we Americans perceive as the mostly average and innocent behavior of college aged students. The 400 plus reader comments following his opinion show many in agreement with Mr. Egan’s sentiments.

Most American commentors on the conviction and sentencing of Knox and Sollecito reach the conclusion that their convictions were factually unfounded and their punishment harsh. Many commentors also maintain that American society and the US justice system would never have proceeded to similarly judge and prosecute either based upon so little and so circumstantial evidence to support any assumption of their guilt. Unfortunately, many of us fail to recognize the realities of our own system.

The general American assumption and belief expressed in the impartiality and wise conduct of our judicial system is obviously inaccurate. If that were the case, then our own Rockford authorities would have publicly announced that Richard Wanke is no longer a “person of interest” in the murder of attorney Greg Clark, nearly two years ago, and they would also have dismissed by now the obstruction of justice charge still pending against his landlord, Diane Chavez.

After all, where is the direct evidence linking either of our two friends to the Greg Clark shooting? There may have been some DNA, some fingerprints, some blood, some footprints in the Knox and Sollecito cases to muddle the investigatory waters. But, what explanation exists for the continued bull-headedness of our local authorities?

None, that we at can see. The Rockford police would have found any similar evidence by now linking our friends to the murder, if it existed, considering the exhaustive investigation the Rockford police have conducted and the dissection they have done of two individual lives. Despite whatever improbable witness “sightings” early claimed in the media; our own knowledge of our friends tells us that our authorities must by now have amassed much more concrete evidence to show them that their assumptions connecting either of them to the murder is implausible and wrong. And we are not discussing the typical scenario of the amoral actions of two “irresponsible” teenagers or college students, but a significant variance authorities claim manifested in the normal, very quiet and respectable community life led by at least one of these older, settled individuals.

Our American system is as faulty in many respects as the Italian judicial system that many are now criticizing. Our judicial system has, after all, higher standards than any other judicial system. We hold that people are “innocent until proven guilty”, and it is supposed to be more than lip service to an ideal. As Americans, we profess that the liberty of each individual of our society is the most valuable of our ideals and thus most deserving of the protection by the law. We hold ourselves morally above other societies whenever we perceive individual existence in those societies being subject to the exploitation of the law to serve other purposes.

We, at wish that innocent individuals could rely upon the judicial system to correct mistakes that are made; and rely upon the authorities to recognize in the course of their extensive investigations the difference between innocence and implausible scenarios, and thus act accordingly, and free the innocent. But, that doesn’t happen in our American judicial system, no matter how hard we pretend that it does.

false memory

Posted: September 18, 2009 by scornn in "Eyewitness Testimony"

seen this it is cool how a memory can be forced on people

out of 16 people in this video only one passed the test

Play along I passed and got 7 words on the first and 6 on the second test

Article by Rodley Balko, April 8, 2009, taken from Reasonline, <>

New research and DNA exonerations call fresh attention to an old problem Radley Balko | April 8, 2009 DNA testing has been something of a mixed blessing for prosecutors. Provided the samples are handled correctly, a positive test on hair, blood, semen, or other biological evidence can conclusively put a suspect at a crime scene. But the scientific certainty of DNA testing has also exposed just how flawed other arrows in the prosecutor’s quiver really are. DNA exonerations have called into question the accuracy of ballistics analysis, bite mark evidence, hair and carpet fiber evidence, shoe print analysis, jailhouse informants, and even fingerprint identification, once the gold standard of the forensics world.

The latest form of evidence to come under scrutiny is eyewitness testimony. Psychologists have long known about the fallibility of human memory. As far back as 1971, England’s Criminal Law Review Committee warned that over-reliance on eyewitness testimony could lead to false convictions. Going back even to the 1800s, famed psychologist Hermann Ebbinghaus’s memory research established the “Forgetting Curve,” which plots how human recollection fades over time, beginning within minutes of the creation of a memory.

Nevertheless, eyewitness testimony remains a vital part of the criminal justice system, and with good reason. It’s the most abundant form of evidence, and it would be nearly impossible to convict guilty people without it. The problem is that it has for far too long been used irresponsibly, without instituting proper controls to ensure that eyewitnesses aren’t prodded into false recollections, that jurors aren’t permitted to give eyewitnesses more weight than good science allows, and that jurors are made aware of the limits and fallibility of human memory.

DNA testing has thrust the shortcomings of eyewitness recollection back into the spotlight. The cases of Timothy Cole and Ronald Cotton in particular have renewed the discussion. Cole was convicted in 1986 of a rape he didn’t commit. Though the real perpetrator confessed to the crime in 1995 and maintained his confession for years after, Cole’s name wasn’t officially cleared until yesterday. Unfortunately, Cole died in prison in 1999. His family says he couldn’t get proper treatment for his asthma while incarcerated.

Cotton was convicted of raping college student Jennifer Thompson in 1984, due entirely to Thompson’s identification of him in a police lineup. Cotton was also eventually exonerated by DNA testing and—in a rare happy ending for one of these cases—he and Thompson have since reconciled and now advocate together for criminal justice reform. They’ve just written a book together, and were the subject of recent reports by 60 Minutes and Newsweek.

According to a study published earlier this year in the journal Law and Human Behavior, false eyewitness testimony contributed to 77 percent of the 230 wrongful convictions exposed by DNA evidence over the last decade (the number of exonerations has grown since the study was conducted). These of course are only those cases for which DNA testing was available, which are usually murder and rape cases—crimes for which, generally speaking, there is also usually other evidence available. In crimes where investigators are more likely to rely only on eyewitnesses, robberies or muggings, for example, it’s likely that the problem is even more pronounced.

Psychologists and criminologists have known about these problems with eyewitness testimony long before advances in DNA testing proved them. But it’s even more troubling to consider that eyewitnesses tend to become more confident in their identifications with positive feedback.

In a 1999 study, Iowa State researchers Gary Wells and Amy Bradford showed participants grainy video footage of a real case in which a man shot and killed a security guard while robbing a convenience store. They were then given a spread of five pictures, and told that the culprit was included in the photo set. Every one of the participants claimed they could positively identify the culprit. They were all wrong. The researchers had deliberately excluded his photo from the lineup. More troubling still, when one group of participants was given positive feedback from the researchers, that group became more confident in their identifications. Half said they were now “certain” of their identification. Those participants also said they would be more willing to testify against the suspect. They were more likely to describe the security footage as “clear” than other participants and, notably, also denied that the positive feedback had any effect on their identification.

A study released this year takes Wells and Bradford’s experiment even further. Psychologists Lisa Hasel of Iowa State University and Saul Kassin of John Jay College staged a laptop theft in front of a group of students. The students were then shown a lineup of possible suspects. The lineup did not include the actual thief. The students weren’t told they had to pick someone, only to pick the suspect if they recognized him. They were then asked to rate their confidence in their selection from one to 10. Just 33 students correctly said that none of the photos was a match; 173 identified a suspect from the lineup.

The researchers then brought the students back two days later. Some of the students were told that one of the suspects had confessed. Half the students who originally (and correctly) refused to finger a suspect from the lineup changed their minds, now asserting that the person who confessed was indeed the person they saw. Of those who identified the suspect who later confessed, their confidence level in their identification increased from a six to an 8.5. It’s important to note that the students weren’t asked to rate their confidence in the suspect’s guilt, only in their ability to identify him from memory. Even though memory fades over time, the false confession made them more confident in their recollection.

All of this research should tell us that we need to institute reforms. Even subtle, unintentional feedback from police or prosecutors can lead to false identifications. Witness and photo lineups should be double-blind, where neither the officer conducting the lineup nor the witness knows which person is the suspect. Lineups should also include people that the police know are innocent. If a witness selects a known innocent, police and prosecutors will then know that particular witness’s memory isn’t reliable enough to be used as evidence.

Unfortunately, neither the spate of DNA exonerations nor the research on eyewitness identification has changed how police investigate crimes or how prosecutors try them. Though a few major police departments, most notably in Dallas, are considering some reforms, Stephen Saloom, policy director for the Innocence Project, told Nature last year that despite all of the problems with eyewitness identification, when it comes to lineups, “The majority of jurisdictions are simply sticking with what they have always done.”

After a string of high-profile criminal justice scandals, the state of California assembled a blue ribbon panel of former judges and prosecutors, criminologists, and defense attorneys to recommend reforms to guard against wrongful convictions. One of the key suggestions was to change the way the state’s police agencies conduct lineups. The reform proposals were twice passed by the state legislature, but after heavy lobbying from the state’s district attorneys and police organizations, they were twice vetoed by Gov. Arnold Schwarzenegger.

Reform prospects took another hit in 2006 when an Illinois study of 700 eyewitness identifications claimed that double-blind, sequential lineups (the type recommended by reformers) produced more errors than lineups where a police officer conducting the lineup knows which person is guilty. The problem is that the study was conducted by Sheri Mecklenburg, general counsel for the superintendent of the Chicago Police Department, an agency long opposed to changing old police procedures.

Mecklenburg’s report was widely derided by psychologists and criminologists for its lack of academic rigor and biased methodology. The critics’ complaints are too numerous too recount here, but the Mecklenburg report’s most egregious error was that it calculated a witness’s selection of the police suspect as a “correct” identification. Thus the report counted every Illinois DNA exoneration as a “correct” identification. That’s a considerable oversight, given that the reason the Illinois legislature commissioned the report in the first place was as a response to the state’s high-profile string of wrongful convictions. T

he Mecklenburg Report’s main effect was to slow the growing momentum for reforming the way eyewitness testimony is solicited and used in courtrooms. Though it has since been largely discredited, the damage was done. Perhaps the renewed media interest in eyewitness testimony will prompt lawmakers around the country to revisit the issue. There’s no question that witnesses are an important part of the criminal justice system. But there’s also no debating that when used improperly—as it often is—eyewitness testimony can do an incredible amount of damage.

Aired March 8, 2009, and hosted by Leslie Stahl, “60 Minutes” reports growing evidence that eyewitness testimony is much more unreliable than we understand it to be. The story featured Ronald Cotton, wrongly convicted in 1984 for rape and sentenced to life and 50 years after eyewitness testimony by the woman victim, Jennifer Thompson. Jennifer was the ideal eyewitness, someone who was alert and articulate and who was self-possessed through her ordeal and vowed to memorize every feature and aspect of her attacker so that she could correctly identify him afterward to help police convict the right person. The police ended up arresting Ronald, whose features were similar to the drawing. While the evidence against him was only circumstantial, the strength of Jennifer’s identification of him in her court testimony carried great weight with the jury. Jennifer’s honesty and the strength of her resolve to do right is impressive throughout the episode as she relates how convinced she was for years that she had identified the right person. She tells how her belief was unshakable even to the point that when she later saw another man in a second trial, Bobby Poole, who was her actual attacker, she failed to recognize him although he looked very similar to her drawing and Ronald Cotton.
Stahl explores with experts how Jennifer could have been so wrong after trying so hard to identify the right person. Experts now know that human memory is fragile, malleable, easily contaminated and often unreliable. The police often use the wrong procedure in presenting witnesses with photo line-ups of multiple individuals. When the actual perpetrator is not in any of the photos, people will wrongly identify the person who they feel most closely resembles the perpetrator, because they just assume that the guilty party is included in the line-up. Once the identification is made, memory will focus upon that person and  transform him or her into the guilty party in the mind of the witness, particularly when the selection of the witness is reinforced by some indication by a person of authority to them that they have acted correctly. So, even though Ronald Cotton recognized Bobby Poole in prison as the actual perpetrator of her rape based upon her composite drawing; Jennifer did not later recognize him in court, even face-to-face.
Ronald’s ordeal cost him 11 years of his life and pain to his family. The “60 Minutes” episode producer relates that what struck her so forcefully about his case was the many chance details of it that could have so easily resulted in him not being released despite his innocence. Over the course of years there was initial evidence which could have been destroyed or discarded and not available for the DNA testing which exonerated him. His contact with and recognition of Bobby Poole was itself highly improbable and he had to act on his own to bring Poole to the attention of his attorneys. And most disturbingly, there was the level of despair Ron experienced over the years which nearly drove him (an innocent person) to murder Poole in prison and thus commit an even greater crime than the rape he was imprisoned for.

Leslie Stahl questions in the course of this episode if eyewitness testimony should ever be trusted. That is a valid question when police have only imperfect eyewitness testimony to convict individuals of serious crimes. Police were once unaware of the fragility of human memory, but can no longer claim ignorance of proper procedures and the general inaccuracy of eyewitness testimony. You can read and view the full excerpts of the “60 Minutes” episode at the “60 Minutes” website at along with background materials.