Eyewitness Testimony

We're all bound by that common commitment to support and defend the Constitution, to bear true faith in allegiance to the same that you faithfully discharge the duties of our office. Do you solemnly swear or affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth. From Tenderfoot TV and I Heart Radio, this is Sworn. I'm your host, Philip Holloway. Years ago, I heard a story about a year old woman on death row in Chicago. She was sentenced to

death on a plea bargain. This made no sense to me how someone could be sentenced to death on a plea bargain. So I actually set up to meet with her on death row. She said that's what her lawyer told her to do. To plea out and that was her best chances of getting a good result, she said, and I'm innocent. I went back told my students about it, said, you know, there's this woman on death row. She says

she's innocent, she's got an execution date. We worked on her case, sitting in my kitchen and going out to the crime scene and tracking down witnesses. After I got her death sentence reversed, I decided that's what I wanted to do with my life. I have her picture. I'm

looking at it right now on my wall. Just sitting on death row twenty five years ago and looking at a kid sickly who went through the system without any assistance, who didn't get a trial, didn't get any investigation, was so shocking to me that that could happen in the United States of America that it just changed my entire life. And I always say there's two naive positions. One naive position is that everyone in prison is innocent. The other

naive position is everyone in prison is guilty. The truth is most people in prison are guilty, and we're trying to figure out, you know, where does that line end of most Thirty years ago, I was sworn in as a deputy sheriff in South Georgia. In I passed the bar exam. I've been a prosecutor, I've been defense counsel, and I've even warned a judge's room. I've seen just about every side of the American legal system that there

is to see. Last season on this show, we looked at just some of the criminal cases that caught my attention, and we highlighted a few of the issues in the system that we thought were important. Now we're taking a new approach. We're tackling the problems that run rampant in our legal system, the roadblocks, the corruption loopholes, things that cause innocent people to wind up behind bars. We're taking a good, hard look at the criminal justice system head

on this season on Sworn welcome back. As I mentioned at the beginning, things are a little different this season. As a practicing criminal lawyer, former peace officer, and former prosecutor, I deal with the inner workings of the criminal justice system on a daily basis. I see how complicated and heartbreaking it can be, and I know how many people

are caught unaware in horrible circumstances. Over the course of this season, We're going to look at just some of these high stakes situations, the ones that I see all the time, and we're going to hear from people who have had to live with the consequences. This show is dedicated to justice, what justice looks like, and how to find justice. We were able to work closely with people across the country who are fighting for a more perfect system. One of those people is Justin Brooks, who was the

voice at the beginning of the episode. Justin serves as the current director of the California Innocence Project, and you'll be hearing from him throughout the season. But first, I want to share with you a story of a man who was wrongfully convicted based on evidence that many juries view as the gold standard I witness testimony. This man spent nine years in prison while the perpetrator remains free. When it comes to shutting some light on this nightmare

that so many of us unfortunately share. I'm a walking book. The two most common contributing factors of wrongful convictions our witness smiths identification and misapplication of forensic science, and I was a victim of both of them. My name is Joe Dias. I am fifty five years old. I work in the high tech field. I'm a father four, married to a wonderful woman. As Joe mentioned, when it comes to his story, he's an open book, so we asked

him to start at the beginning. I'm sitting in a college class and two plain clothes gentlemen walk up to the professor. WoT a note? Professor walks over to my desk. They walked me outside. Mind you, this was back then there was a popular show called Hidden Camera. I had a lot of friends who were you know, Francis. I figured this is this is a joke of some kind. I walk outside and one of the investigators tells the other one he looks like a jack rabbit, may want

a handcuffle. So they told me to turn around and they handcuffed me. That's when I realized, okay, this is not a joke. They took me down to the police station, interrogating me for a few hours. Wanted to know where I was on certain days and if I knew of a certain school and a certain part of town. And I didn't. But nevertheless, they interrogating me for a long time and wanted to know who I knew, who owned a Volkswagen band, I said, I don't have the slightest idea.

They wouldn't tell me why they were interrogating me. You're talking about it was hours that they interrogated me. It's been so long I don't recall when they've read me my rights. But you know, I spoke to the biggest mistake I ever made in my life. But again, I was a twenty year old, ignorant individual, had nothing to hide, so I was willing to talk to them because I

hadn't done anything wrong. When they finally decided to take me over to the county jail, that's when they told me that I was being charged with two sexual assaults. They took me over to the jail house and I didn't see freedom again for another nine years. As I listened to his story, one of the things that I could not wrap my head around was why Joe got picked up in the first place. There were some police officers who knew my family and me from the neighborhood.

You know, we were hood them, so we weren't necessarily law abiding citizens that you could just walk by and yell at and we would not react. We would throw rocks, mud, fruit, whatever was in our vicinity. At the cops and run off. These cops knew my brothers and I, and they knew that we weren't the little Saints. So one of these cops who knew me claims that when he saw the sketch of the assailant that they were looking for it, that I sort of resembled him, so he put me

in the in the lineup. From a law enforcement standpoint, taking Joe into custody in a college classroom kind of makes a lot of sense. It's a contained environment. The suspect is unlikely to escape. Most college classrooms I've been in only have one way in and one way out. As for pointing him out in the first place, I'm not a fan of going on police sketches to begin

an investigation. There's just so much subjectivity, first in a witness remembering what they saw, and secondly in how a sketch artist will interpret what the witnesses trying to say. I did kind of resemble the guy. I did have short hair, just like the guy. I had a mustache at the time. The guy didn't have a mustache in the in the sketch, but he sort of resembled me, you know, because the nose was kind of wide and

everything that was for one of the two charges. The other guy had long, long hair, which I can't grow because my hair is currently and he had a real and he knows which I don't have. So the two composites could not have been any more different. They had shown both of those victims lineups photo lineups in the past,

and neither of them could identify the the attacker. Once this officer mentioned that I look like one of those composits, Supposedly they went back to the two victims and they put my picture in the photo lineup, and that they both picked me out. I'm the second woman who was attacked. These two joggers came by and they saw her putting her clothes back on and asked her, Hey, are you okay, And she says, that guy just attacked me. He ran that way. They chased the guy down, but the guy

got away. But the guy dropped a slipper and he gets away in this waltz dragging vannagant. If I'm not mistaken, they looked at the photo lineup and they both picked me out, or one of them did, and so then one of them came to court and said, yes, that's him right there. The first victim, the guy never was never able to attack her. He took her to the back of the school, and then somebody showed up with him,

so he ran off. The second guy was able to attack the second victim, and in her pennies they found some a blood. Now she and her husband were both a blood. I'm oh, that should have been enough right there to say we don't you mean to go to trial. They didn't have DNA testing, but as Joe mentioned, they did have blood typing. Blood typing that didn't match Joe with the perpetrator. So I guess, in my professional opinion, I'm gonna have to agree with Joe on this one.

I think the trial should have stopped there. During the trial, they brought that same forensics asperate who works for the county. They brought him into testify, and once he said yes, I found this a plus one minus that definitely excludes the suspect. It could not have been him. He's oh blood. The disciponturnity kept him under the stand for two days straight until they were able to batter him enough so that he we change his story and say, Okay, the

evidence was weak and inconclusive. Well, how could it be conclusive one day and inconclusive? You know, on paper it's conclusive, but after interrogation he changes it that it was inconclusive. Joe's got a great question there, and it's one that will explore later in the season. Trial, I believe was a week or two. It was a nightmare to me. It was just a big, abstract sporting competition, you know, a verbal joust between attorneys to see who can act

out the best, my attorney versus the district attorney. A lot of the times, trials can feel like that, and while it's generally best to keep relationships between defense attorneys and prosecutors friendly and professional, sometimes they can turn adversarial. There's a lot at stake, and it's not uncommon for emotions or egos to run high. And my attorney would not let me take the stand, and I'm like, I need to take the stand. I need to speak up

for myself. I don't have anything to hide, and he's like, no, you look angry. I look angry. That's an understatement. What do you mean I look angry? What if the roles reversed it you were sitting in my seat, would you not be angry. Of course I'm angry. You know, I was twenty years old. I had to defer. He's the one wh's gone to law school. I didn't know any difference. I said, okay, well I won't take the stand, and I didn't take the stand. To this day, I regret

not insisting that I take the stand. I can understand Joe's frustration here, but in my experience, most defendants don't take the stand. But it's always a tough call. I've seen cases myself that were one or lost by defendants owned testimony. As for looking angry, I certainly don't mind a little righteous indignation. In fact, there's a place for it in the theater that is a criminal courtroom. But we don't want the jury to feel intimidated, and we

don't want them to feel threatened. Always consider how my client will look and how they will sound on the stand, especially during cross examination. It's because of that opportunity for cross examination that the conventional wisdom says defendants should stay off the stand and maintain and exercise their right to remain silent. Whether or not a defendant chooses to testify is always a decision for the defendant and for the

defendant alone. After consulting with counsel. Judges must tell juries that defendants have a right not to testify, and if they elect not to testify, that the jury is not to hold that against the defendant in any way, shape or form. Merely exercising your constitutional right to remain silent is not the same thing as an admission of guilt, and juries are told that they cannot treat it as such. When Joe started explaining the eyewitness testimony in this case,

I knew we had to bring in an expert. I have admired Dr Elizabeth loft Us for a very long time. She is one of my personal heroes in the criminal justice system. She is an expert in human memory and

the problems with eyewitness testimony. So I am a professor at the University of California, Irvine, trained as a psychologist and experimental psychologist, and my specialty is human memory, and within the study of human memory, I have focused on the problems of false memories or distorted memories, and in some sense, when memory goes awry. What we know in the field of psychology is that memory does not work like a recording device. You don't just record the event

and play it back later. In fact, the process is much more complex. What we are doing when we remember something is we are often taking bits and pieces of experience and constructing what feels like a memory. So psychologists talk about memory is being a constructive or reconstructive process

rather than a kind of video recording process. The term the malleability of memory is one that refers to the idea that memory is changeable, that it can be influenced by all kinds of things, particularly by things that happened after some critical events is completely over. In the context of a criminal trial, memory comes into play quite often.

So often a key issue is who committed the crime, And often when the key issue is who committed the crime, there is some witness or victim who might be making an identification somebody that the victim or witness says was present at the crime, committed the crime, or cooperated in committing the crime in some way. That witness may be tested in a number of ways, maybe looking at photographs, may be going to a line up, and all of

these activities involved involved memory. And then, of course, in other situations, key witnesses are remembering things other than who committed the crime. They have to remember things like what was the color of the getaway car, or maybe it's a bar fight, and who's the first person who threw the first punch. These are also expressions of memory, so the accuracy of these kinds of accounts is crucial to

the resolution of a case. When in investigating the facts of a particular case, it's pretty important to look at whether there are opportunities where witnesses may have been influenced, may have had their memories tampered with, even inadvertently. This happens when witnesses talk with one another after some crime is over. It happens when people are interrogated. Maybe they're interrogated by an investigator who has a hypothesis or an

agenda and communicates information to the witness. Even inadvertently, they can supply information and contaminate the memory. Say a witness sees a kind of high publicity event and then looks at media coverage and other witnesses or news anchors or journalists are talking about the event. There's another opportunity for new information to enter the consciousness of a witness. Us to a critical case that's going to make its way into a courtroom and to cause a change in that memory.

You know, I had one case where the officer tried to elictit identification. The eyewitness said, no, I don't really recognize the perpetrator in this set of photos you're showing me. And the officer said, I see your eyes drifting down to number six. What's going on here? Well, you can see in this example that the officer has this idea that it's number six. Thanks he saw the eyewitness glanced down there, and he in the process secured an identification

of number six. That's the kind of more subtle suggestion that that I've actually seen happen in a case I was working on. I asked Dr Loftus what kinds of warning signs in a case would indicate to her that the eyewitness testimony might be faulty When it's a bit a very very long period of time between the supposed crime and the person reporting of memory. You don't need a PhD to know that memory fades over time. But what's a little bit less a matter of common senses.

As that memory is fading over these long period of time, it becomes more and more vulnerable to contamination or suggestion. So when I when I hear people coming forward and saying, you know, such and such happened twenty years ago, or thirty years ago or forty years ago, whatever, that sets off at alarm. So the passage of time or the presence of suggestive information that that's just a couple of factors. But you need to worry about a lot of other things.

For example, isn't an identification that involves across race identification? Do you have a stranger of one race trying to identify somebody of a different race who as a stranger not a friend. We make more mistakes when we make those cross race identifications than same race ones. The cross race identification problem, you know, has been at the root of a number of these wrongful convictions, and it it's even happened in rape cases. So people are pretty close together.

Justin Brooks, the director and co founder of the California Innocence Project, who you heard from at the very beginning of this episode, spoke with us about how common incorrect eyewitness testimony actually is in exoneration cases like that of Joe Diaz. So, first of all, there's sort of the global causes of wrongful conviction, and you know, I put

that in the category of not having resources. You know, poor people get wrongly convicted more than rich people, and we know that there's racial aspects to that, and we know that there's problems with the defense and investigation. But what we now know is more about the actual specifics. And it's sort of like when there's a plane crash, we want to study the plane crash to see why it went down. Now we're able to study the two thousand cases of documented wrongful conviction in America, and it's

revealed some interesting things. First of all, one of the leading causes is bad identification, and we now know that people aren't that good at identifying people. Yet we've allowed for centuries people to be convicted on alone witnesses testimony of that's the person I saw commit the crime. There's many reasons for this. It starts with just faulty memory, people having trouble with memory, but we've learned it it also comes from poor identification procedures. It comes from all

kinds of ways people's memories are contaminated. In California, we've had a huge number of cases where people are wrongthly convicted due to cross racial identifications. And I'm always talking to lawyers about how to talk to jurors about this, that people just aren't as good at identifying people not of their own race. It starts right from when you're a baby and your brain is processing how to do

facial recognition. If everyone around that baby is the same race, but the rest of their life, they will not be that good a cross racial identification. And it's nothing to do with racism. It's just to do with how our brains develop. So we've now seen, you know, in the initial few hundred DNA exonerations, more than half of them were based on bad identifications at trial. So there's a

lot of reasons people are wrongfully convicted. There's some we can really make improvements, and there's others that are always going to exist. So we just have to be cognizant of it, and jurors have to be cogni sent of it and be you know, highly skeptical of certain types of evidence. That sounds an awful lot like Joe's case. So I asked him what he thought the biggest factor was in the juries finding him guilty. Oh, the witness identification.

There was no doubt about it. If there's one thing that I had learned through all of this is how race comes into play a lot of times, and how difficult it is for people of one race to actually identify half the capacity to identify somebody of another race, or the errors that are made and trying to identify somebody of another race. I identified as Hispanic. However, I am a mix. My father's mother was Chinese, his father was Spanish. My mother is half Spanish, half Black. I'm multiracial.

Hey believe me, as much as I've been raised with almost every single I was raised in the hood. I came to this country of refugee. We were poor. We had to live in the poorest of neighborhoods, so you congregate with all the poor folk from all over that come in into the country. So I thought I could identify. I can identify people, but I make a gazilitian mistakes

all the times where I'm wrong. As I look back at my case, I realized how fallible we humans are, how fallible our memories and our belief that we could identify folks, and especially folks from a different culture. So I get it, you know, I get it. At the time, I'm like, I'm being framed. Why are you guys doing this. You know, at the time, I didn't know what I know now. At the time, I was just up in arms, like, how in the world could this be? There is power,

There is so much power. And a witness go into court and pointing a finger that a suspect and saying, yes, he or she is the suspect. There is power in that. After the trial concluded, the jury was sent back to deliberate, they couldn't come to a verdict. Come Friday afternoon, they all wanted to go home. All of a sudden, they had a verdict and it was guilty. Joe has a good point here, and I think there's something to his idea that his verdict may have been rushed. Most criminal

trials seem to fit nicely within one work week. By Friday, of course, everybody is tired. The lawyers are tired, the parties are tired, the judge is tired. This cuts both ways. Because a jury is ready to be done on a Friday doesn't necessarily mean they're going to acquit somebody in It doesn't mean they're going to convict somebody. In my career as a prosecutor or as defense counsel, if I have a choice. I really don't want a jury deliberating on Friday afternoon if it can be helped. Joe was

exonerated after his release. He served nine years of a fifteen years sentence, and it wasn't until years later that he was declared in a by a District Attorney's Conviction Integrity Unit, one of the strongest tools available in the fight against wrongful incarceration. That team of investigators revisited Joe's case after they realized that the facts of his case that very closely with a serial rapist that had been committing crimes in that area. Twenty eight additional victims came

forward even after Joe was in prison. My first almost six years were spent at Solidad prison, and I was very fortunate because I went in very angry, very bitter, and a lot of people asked me, well, you know, was it tough in prison? You know, were the guys tough in there? Do you have a lot of fights? Look, I had already grown up in the hood. I come from a family fighters. My whole family was already raised

to be pretty uh pretty outlawish. But in all reality, I didn't have to go into prison and try to prove that I'm a man and try to prove that I'm not a sex offender. I just carried my own myself as a respectful individual. I respected unders the respected me. But I was fortunate that the prison that I had to land in was one of the few prisons that had a college program. I had been railroaded, I had been abducted from a college class. As soon as I saw that they had a college program, I signed up.

I kept myself busy with that, and I kept myself on the basketball court. Basketball is my passion. That's what I did. I did the best that I could to make sure that I could improve my life to the best of my ability, because I mean, my life was not mine anymore. I had succumbed to the fact that I had to survive. I had to survive that nightmare and not do anything stupid. I always knew that I was putting my children first, and I knew that I had to do what I had to do. I always

had faith. I always had faith, not in God per se. I came to the point where I was cursing God, but I had faith in the legal system, and I had this blind faith and just karma that I would be freed someday, and I said, I have to educate myself to the best of my ability. I have to keep my mind clear for my daughter's I have to be there for my daughters. I didn't have a good upbringing, but I said, you know what, at least I can

do is be a man for my daughter. And I am so grateful for these professors that were willing to take the drive to teach people. I would have to believe that they believe that these people are redeemable. In the end, Joe was exonerated and given a certificate of innocence in April two. As we mentioned, our witness testimony is one of the main causes of for awful conviction

in the United States. I wanted to talk with more people about the problems with eyewitness testimony and find out exactly what's being done to try and fix the shortfalls of human memory. This is Judge Jed Raycle. My name is Jed. I'm a federal history judge in what's called the Southern District of New York, which is Manhattan and various counties to the north. I've been a judge since and I also teach at both Columbia Law School and

YU Law School. Eyewitness identification is among I think the most troubling and difficult issues for the system to deal with, because the problem is not easily effects you can, of course make better than it is how lineups are presented, what the police say when showing a witness of photo array, and but the single biggest cause of this identification by eye witnesses are things embedded deeply in the human psyche. There are things like poor perception and poor memory. One

example is what they call merger. At the time of the crime, you only vaguely saw the face of the perpetrator. You were watching from a window. You didn't want to come close because it was a weapon involved. But you did see the face, but not that perfectly. You're then shown a very good photo array. Thanks to computers now

the police can put together excellent photo arrays. You tell the police, I think, and maybe this guy number three, And you study number three, and you study all seven of the photo array photos very carefully, and you notice for the first time that he has a distinctive scar on his cheek. By the time you go to testify, which could be weeks or months later, your memory unbeknownst to you will have merged those two, so you will now honestly believe Oh, I always saw that he had

a scar. Well, how do you remember him? Well, I'll never forget that scar. This is all a trick of your own memory, unconscious. What you're really remembering is the scar that you saw on the photo right, but your memory now makes you think that you saw it at the time. Perception abilities and our memory abilities are not nearly as good as we think they are, and yet it's very powerful evidence. And the jury has no reason to disbelieve him because he has no more to to lie,

and he's not lying, but he's still mistaken. No one, i think, would say that the solution is to eliminate all eye witness identifications. That's going to extreme. To the other side, there are times when the person who eye witnessed as a crime has a really good view of it and who may be the critical person in identifying the culprit. This is a dilemma. It's one thing when you have, like you have in some forensic sciences, imperfect

science that can be made better. Here the great the problem is no one can change human perception ability and human memory ability. There are two solutions that have been proposed. One is to have judges alert the jury in the judges instructions to the jury about some of the problems with eyewitness identification efforts. The other is to of experts testify about those problems when the judge says, ladies, gentlemen,

the jury please be careful about eyewitness identification. The study suggests that the juries throughout the eyewitness identification totally there because the message they think they're gettings I don't believe the eyewitness. Where experts are used, and typically this would be experts on both sides, the study suggests they cancel each other out and they had no effect, for better or worse. Very few cases go to trial these days.

The real action is with the prosecutors, and I think a great deal more could be done to educate prosecutors to the realities of human perception of memory. Then, I think would enable them to be fairer and much more

acute in their evaluation of giving cases. I know from my experience having worked nearly two decades as a prosecutor, people are genuinely trying to get it right, that they genuinely are trying to get to their best recollection, but that we sometimes are influenced by other factors that impact memory. Jesse Evans is a prosecutor in Georgia. I've worked with him as a prosecutor and we've been on the other side from one another in various cases over the years.

Throughout Jesse's years at the District Attorney's office, Jesse has noticed some of the real problems that we know exist with eyewitness testimony and in particular with police lineups. Jesse's leading the charge in his office and in the state of Georgia to try and change some procedures to help prevent false identifications. I'm Chief Assistant District Attorney with the Cobb County District Attorney's Office specifically on the major crimes prosecutors,

so I head up the Major Crimes Unit. We deal mostly with homicide cases. When it comes to the prosecution of a case, there are two things that have to be presented in every criminal prosecution otherwise you're gonna have a problem on appeal, and those two things are venue

and identification. We as prosecutors, in our general trial outlines, no matter what kind of case we have, will always have those two things listed and basically bold and caps to make sure that we check those two boxes, you know. Identification we need to start from the broad perspective is

a very important issue within the legal justice system. So there may have been instances in the past where prosecutors and police were relying oh so heavily on that eyewitness identification, the fact that persons points to somebody, however that may be, and says that's the person that did this, And there are probably a lot of instances we need to, quite frankly, modern day be very careful about where that was the

crux of the case against the criminal defendant. You'd be hard pressed these days to find a case that's going to rest solely on that testimony of that person that could quite frankly be impacted by a number of other factors that could impact whether this is an actual memory or a case of misidentification. Modern day, we're always trying to find corroboration of that identification. That can be cell phone evidence, that can be geolocation analysis, that can be DNA,

that can be other forensics. I was first contacted by local jurisdiction mary at a police department. They asked me to attend a training and They brought in a former detective from Chicago who was going to talk about sort of new identification procedures that were beginning around the country. And I'll be honest. When they contacted me and said, hey,

we're contemplating making a change, I was skeptical. I think those of us in the criminal justice system, particularly the prosecution side of things, have a healthy skepticism about change. Why are we doing something? Is this an issue that's broken? Are we trying to fix something that doesn't need to be fixed. And I'll tell you, after participating in that training and listen to this, I became convinced that there's

probably a better to do identification procedures. The new procedure that is recommended and in fact is the default here in Georgia by statute, is what we call blind sequential lineups. Rather than looking at all six at the same time, what happens is that a witness is asked to look at photographs individually. One is presented to the witness, then that photo is removed from view, Then a second is presented to the witness, so on and so forth until

you go through, ideally all six of the photographs. That's usually the amount that we use here. The blind component of that is the idea that we try to do it in a method that would allow for the presenter of that photographic lineup to not be involved in the investigation or to not know who the person is. I asked Jesse if he's been able to see any changes or improvements in their work since implementing these new identification policies. It's a really a hard thing to gauge in terms

of statistics. Instead, what we wanted to do is just gauge sort of the boots on the grounds, the people that I trust, the people that I'm embedded with as the major crimes prosecutor. I went to my homicide detectives and I said, anecdotally, how do you feel about it, and how do you feel about the process. Do you

feel like you're getting less identifications? And speaking with my detectives that I trust, the anecdotes I was getting back from them was not only do they feel like they weren't getting significantly less identifications, they actually felt better about the identifications they were getting because they felt like the process was more fair. There's nobody in the criminal justice system that wants to get it wrong, so to speak. We're all seeking to get it right. We want to

get it right for that reason. While identification testimony can oftentimes be very important because we're all moving towards that goal of getting it right, we want to make sure that it's not the only thing that we're relying on. I can't think of an instance in my eighteen and a half year prosecution career where I've tried a case based solely on identification testimony. There's always gonna be some corroborating fact, is there? Otherwise I'm gonna be very concerned

about taking that to court. And in fact, our admonition that we give to witnesses and victims before they do this specifically tells them that whether or not they picked somebody out, we're going to continue on in our investigation.

And that's an accurate statement. I've been concerned with the problems of eyewitness testimony for quite some time now, So when we started thinking about what we wanted to do with this show for this season and what pitfalls and problems we wanted to talk about and to learn about and to bring to your attention, I knew that eye witness identification, and memory had to be on the list,

and probably at the top of the list. What I came to find though, through these interviews with the experts and from hearing stories like Joe's story man, I found that these problems are even deeper and more serious than even I knew. I have seen over and over again just how much weight eye witness testimony carries with judges and juries once witnesses take the stand. But it's been known for a while in law enforcement that memory isn't

always reliable. In fact, I learned about it firsthand back in my days at the police academy in the late nineteen eighties. One day, I guess it was probably nineteen eighty nine, I was in Albany, Georgia at the Regional Police Academy. I was in a classroom with a group of maybe twenty to twenty five students. Out of nowhere, someone just busting the room, wearing a ski mask and holding a handgun. This person goes straight up to the

teacher and held him up at gunpoint. At the time, none of us were armed, so we all just sat there stunned, and in about fifteen to twenty seconds, the teacher handed over his wallet and keys and and other valuables and this person in the ski mask just left the room. We all thought we had just witnessed a real, although pretty reckless robbery of somebody thinking that they could actually hold up the police academy. As it turns out, it was a lesson for us, a lesson in identification.

Everyone in the room was asked to write out a description of the person they saw, and between the twenty five or so students that were there, they were probably twenty five different descriptions. They brought the person in and lo and behold, nobody in the room was right. I mean nobody. Things like what color of the person was wearing. Those details were wrong, whether somebody had a hat on, those details were wrong, very important details that you would

think would be hard to miss. And to this day, I think about that exercise at the police Academy, I think about just how wrong our panic human memories are, even for people trained to identify suspects and to remember clues to a crime. The big takeaway for all of us was, look, we can't rely on this stuff. We can't rely on descriptions. Perceptions alone are not enough to

solve cases. It wasn't until law school when I started to learn about the work of Dr Elizabeth loftus that I realized the real problems with human memory and how they play into identifications. Not only is eyewitness identification unreliable at best, it's oftentimes just flat out dangerous, And now after twenty some odd years of practicing law, for me, it's just one of the more frightening aspects of our

legal system. There are so many people like Joe who get sent to prison on little other than what an eyewitness tells. A jury and juries love eyewitness testimony. I see it time and time again, juries and judges here, how confident these witnesses are even when they're wrong. I've seen victims and witnesses testify in court even before juries and give details that the witness is very certain but

that are very wrong. And as we've heard from our experts, it's not that they're lying or they're trying to do the wrong thing. Most of the time, they genuinely want to get it right and they think that they are right, just like I genuinely wanted to get it right back in the police academy. It's our brains and our perception that change these details and make false connections that aren't

actually there. In fact, just this week, while we were recording this episode, I had a hearing in court where a witness was absolutely certain about something that they saw, even though everything else about the case pointed to that not being true. I wanted to address this issue right off the bat, because, as Justin Brooks and Judge Raycoff have explained, eyewitness testimony is the number one reason Innocence

Project exonorees across the nation are falsely imprisoned. I don't think when it comes to something as serious as prison, we should rely on some thing as malleable, as changeable as eyewitness testimony and memories as the soul or even the primary evidence in a case. It can be a helpful investigative tool, don't get me wrong, but there are so many problems associated with it that it cannot be

the reason that we send someone to jail. I'm glad there are people like Jesse Evans and Jed Raikoff who are out there educating police and lawyers and juries on the problems associated with eyewitness testimony. I'm glad there are people like Dr Loftus who can go into court as an expert and explain this stuff to juries to prevent more wrongful imprisonments. And I know that in my own life, I take a good hard look at the things that I think I might know to be true based on

my own perceptions. Maybe it's details that I think I'm certain that I remember. I'm thinking about these things more critically because I don't want to make any important decision or even an accusation based on what might be faulty memory. If you have a story about a faulty memory or an unreliable eyewitness, we want to hear from you about it. Give us a call at four zero four four zero zero four four one. Next time on sworn he set it up, making sure that all right jury was selected.

It was like from there it was just an uphill battle. And I tell people all the time, if it had been an all Chinese jury and it would have been a Chinese victim, are all Mexican jury and the Mexican victim,

what are the odds? The odds are totally staticas fact that the fact that the fact that brought out the hair samples didn't match, but it didn't make any difference because says that one dramatic moment when they say it's the person that committed the crime in this court room today and they turn around and a tear coming down to their cheek. Let me point directly led me and said he's the one. Sworn is a production of Tenderfoot TV and I Heart Radio. Our lead producer is Christina Dana.

Executive producers are Payne Lindsay and Donald Albright for Tenderfoot TV, Matt Frederick and Alex Williams for I Heart Radio, and myself Philip Holloway. Additional production by Trevor Young, Mason Lindsay, Mike Rooney, Jamie Albright and Halle Beadal. Original music and sound designed by Makeup and Vanity Set. Our theme song is Blood in the Water by Layup. Show art and design is by Trevor Eisler, editing by Christina Dana, Mixing

and mastering by Mike Rooney and Cooper Skinner. Special thanks to the team at I Heart Radio from u t a or In Rosenbaum and Grace Royer, Ryan Nord and Matthew Papa from the Nord Group that Media and Marketing and Station sixteen. I'd also like to extend a very personal and special thanks to all of our contributors and guests who have helped to make all of these episodes possible.

You can find Sworn on Facebook, Twitter, and Instagram at sworn podcast and follow me your host, Philip Holloway on Twitter at phil Holloway e s Q. Our website is sworn podcast dot com, and you can check out other Tenderfoot TV podcasts at www dot tenderfoot dot tv. If you have questions or comments, you can email us at Sworn at tenderfoot dot tv or leave us a voicemail at four zero four for one zero zero four four one.

As always, thanks for listening. And then I noticed you're using the word convict and so of the word inmates. Can you exclaim why you're doing that? I'm conscious about the differentiation in prison. I would consider an inmate those men will carry themselves in a manner in which they try to curry favor with the guards, where they will do whatever staff wants to them at the expense of another man. A convict is a man who carries his

own excuse, the vulgarity, carries his own nutsack. He doesn't need a gang of individuals to help him walk the prison. He doesn't need a guard to give him an extra pillow or whatever stupid freebees, those guys would get. I detest any man that's already sitting in prison, currying favor with staff at the expense of another man.