Selling a Story: Why A Case Should Never Rely on Eyewitnesses
Sept. 17, 2015 (Mimesis Law) — On a Wednesday in September, outside a penitentiary the world watches and waits. Death row is housed here. For one man, today is his day. The state set the time; the lawyers have exhausted his legal options. There is nothing to do but wait. Maybe a last minute reprieve will come, but at this point it’s unlikely.
The only evidence against him is eyewitness testimony from the real killer: the person who pulled the trigger. No DNA. No fingerprints. Just the words of a tainted witness who has an overriding interest in sticking to the police’s version of events.
Without any other evidence, there is no way to prove innocence: there won’t be a “get out jail free” card. And so, in the cold, dark recesses of death row, where they let student tours sit in the old electric chair, the needle is put in his arm, he closes his eyes, and he dies at the hands of the State.
That was Troy Davis’s case in 2011. But it’s a version of events almost identical to and eerily reminiscent of those in the Richard Glossip case. The only difference is that Richard Glossip got his reprieve (albeit a short two-week reprieve) yesterday at the eleventh hour.
It also brings to mind Scalia’s dissent in the Troy Davis case when the Supreme Court ordered the federal district court in Georgia to consider whether new evidence established Davis’s innocence. Scalia infamously dissented from that opinion and articulated that innocence should have no bearing on the decision. Instead, the question should be whether there was a fair trial:
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.
I’m pretty sure Scalia intended to convey air quotes around the word “actually.”
I posit that convicting someone and sending them to prison, let alone death row, based solely on eyewitness testimony does violate a person’s constitutional right to a fair trial.
So what is wrong with the lone eyewitness or even a string of witnesses who echo the same story? Whether it’s a witness who wants to be helpful or one who has something to hide, the bottom line is that eyewitness statements are inherently unreliable and erratic. Sometimes it depends on conditions: time of day, distance from the scene, cross-racial identification. Other times, it comes (as it did in the Davis and Glossip cases) from police pressure.
We know that witnesses get it wrong, and that it convicts the innocent. But once they are locked into a statement it’s even more difficult to get them admit any error. In fact, they become more adamant about what they saw, heard, or said when none of it may be remotely true.
The crazy part is that while there are studies and experts on these innate problems, many courts won’t allow that testimony in because they have have determined that juries “should know” that eyewitnesses can be untrustworthy.
So just to be clear: If you have an untrustworthy eyewitness as the only evidence against you, we just assume the jury can figure out whether or not that testimony is credible. And if they decided to believe that nutjob, then you’re out of luck because that’s a constitutionally fair trial and once you’re convicted we can execute you or lock you up for decades because your innocence doesn’t matter. If you’re not pulling your hair out by now, you should be.
Eyewitness testimony is outrageously inaccurate and biased, even under very controlled circumstances. The fact that we depend on this testimony as the sole evidence in a death penalty case is absurd, tragic, and unconstitutional.
On a Wednesday in September 2011, Troy Davis lost the battle to spare his life and prove his innocence. On a Wednesday in September 2015, Richard Glossip won a small battle, but the war is not over for Glossip’s supporters.
These cases should make us reconsider the death penalty and eyewitness testimony. They should push us to continue the fight for uniform policies on how police work with witnesses to get statements and extract information. They should compel us continue to request that juries receive proper information about eyewitness reliability. They should make us want a system where someone cannot be executed because another person bought and sold the version of events that sets up a wrongful conviction.