brand logo

Call Today for a FREE Consultation

262-923-8761

24 HOUR EMERGENCY CONTACT

Eyewitness testimony is frequently unreliable

On Behalf of | May 17, 2021 | Criminal Defense

You might not think six eyewitnesses could all be wrong, but they were.

The case was a 2010 murder. A man named Aaron Scheerhoorn was stabbed to death outside a nightclub in Houston. A crowd gathered, and six people told detectives that Lydell Grant was the murderer.

There was no physical evidence against Grant, which was amazing, considering how violent the crime had been. Moreover, Grant had an alibi.

Nevertheless, the jury felt the weight of the six eyewitnesses and convicted Grant. He was sent to maximum security prison in Gatesville, Texas, despite insisting upon his innocence.

Grant had been in prison for almost ten years when he finally caught a break. In 2019, a new method of DNA analysis allowed for testing of samples found under Scheerhoorn’s fingernails. That test implicated another man, who then confessed to the murder. Grant was exonerated and released from prison.

How could six eyewitnesses be so wrong? And how common is it for eyewitnesses to be completely mistaken?

According to the Innocence Project, over 375 people have been exonerated after new DNA testing. Of those, 21 were on death row. And, in the overwhelming majority of those cases, the original convictions were based on eyewitness testimony.

Human memory is not like video

Since the 1970s, experimental studies have shown that people’s memories are actually quite malleable and subject to manipulation. We tend to think that our memories are true records of the events, much like a video was taken. In reality, our experiences come back to us steeped in assumptions, prejudices and reconstructions.

In Lydell Grant’s case, it seems likely that the six eyewitnesses received small clues from the detectives about which person was considered the suspect. This could have been intentional, but it’s just as likely that the clues were unintentional and even subconscious.

Specifically, three of the eyewitnesses reported that the detective had said they picked the same person that others had. Two discussed their recollections with each other, confirming each other’s memories. The last witness said the detective praised him after he identified Grant.

Good practices can reduce mistakes

Ideally, police officers would engage in “double blind” identification processes, where neither the officer nor the eyewitness is told the identity of the suspect.

The witnesses should also view the photographs or in-person lineup sequentially, one person or photograph at a time, and answer whether or not they believe that person to be the perpetrator. The traditional “simultaneous” lineup, where six people walk out on a stage together, or an array of several photos is presented to a witness, has been shown to be prone to error.

Studies show that witnesses tend to view a simultaneous array and decide which person among them looks most like the suspect from their memory. This “comparative” judgment by a witness may not lead to the real perpetrator, as we have seen in many tragic wrongful convictions.

In addition, there should be some standardized instructions that help witnesses resist being primed to select any particular person. After they make the ID, the witness should be asked their level of confidence in the choice. And, the whole process should be videotaped.

Following these procedures can minimize the possibility of suggestion or bias in the eyewitness ID process.

Archives

FindLaw Network

“I just want to say thank you for the outstanding work you have done for him and let you know how much we appreciate the time and attention you gave to his case. We are obviously overjoyed by today’s dismissal!” (Child pornography case dismissed after motion to suppress was granted)”

“After having had time to exhale, we thank each one of you and all the others who contributed to the exemplary Supreme Court presentation. We are proud of your efforts on our behalf and, equally important, on behalf of the many present and future defendants statewide.” (Client’s comment after Supreme Court oral argument)

“Thank you. Thank you. I am so pleased to hear that we won. It doesn’t seem that it was even a close call. I appreciate your efforts.” (Oconto County defendant after Buting, Williams & Stilling got his prison sentence overturned in the court of appeals) ”

“Your time and advice was appreciated more than words can express at a time when we really needed someone to guide us.” (Client)

“The outcome was amazing, one unavailable even under identical circumstances in probably 98 percent of federal courtrooms around the country. Separate and apart from the outcome, though, I am supremely impressed by your efforts on your client’s behalf. Your comments in support of the requested sentence were perfect in tone and, having now reviewed the extensive sentencing memorandum you filed, your work in that regard was exemplary as well. Your client was certainly fortunate to have you as his attorney.” (Local federal court attorney present at a sentencing)

“I can’t thank you enough, not only for all of the tireless work that you and your staff put into my case, but for telling me what I needed to hear, at a time when I absolutely had to hear it. I consider myself blessed for everything turning out the way it did, especially since I blindly picked you out of a phone book! You helped me, my family and friends in many more ways than the money ever could.” (Child pornography client)

“I think you will find that in any circles where Kathy’s name is raised, people will always respond positively and identify her as an extremely hardworking, knowledgeable and ethical lawyer who is timely and effective with any endeavor she takes on. These circles would include colleagues, friends, prosecutors, judges, professors and others who have crossed paths with Kathy. They would also include the many lawyers like me who have referred numerous cases to Kathy, invariably with positive feedback from the clients regarding her knowledge of their case, empathy, professionalism and fair-mindedness in addressing their concerns.” (Fellow attorney)

“Thank you for giving [our son] back to us. Wonderful work!” (Family of client accused of armed robbery after charges were dismissed)

“Yes, His perfect time and perfect place, you were a part of this plan. I almost didn’t hire you, but I took a step of faith trusting Him and look what happened? Praise God. Our Lord put you in your vocation for a reason, continue to help those He brings your way. May He bless you in ALL you do!” (Client who was wrongfully convicted of sexual assault in a northwestern Wisconsin county. He was released from prison after attorneys got his conviction reversed.)

“I really cannot thank you enough for your past help. You really know your stuff. It is actually funny when I think about my other past attorney’s knowledge and then when I talk with you. It’s like night and day. You’re like a walking book of knowledge with a purpose-driven life. Thanks.” (Brown County client of attorney Buting)

“A year later and I still believe your defense is the single best example of lawyering I have ever seen.” (Television reporter commenting on attorney Buting’s defense of Steven Avery)

“You have a certain brilliance that makes me sure that when you talk, it is good information and I am in good hands. You tell it to me like it is even when the things you say are not always the things that I would like to hear. You keep it REAL!!!” (Brown County client)

“Thank you, thank you, thank you! I feel like this was one of the biggest blessings that happened in my life. I put this along with my children being born healthy and when I survived that horrific shooting. I appreciate everything you have done for me. I couldn’t ask for better lawyers. I want to say thank you to everybody at your firm. I owe you more than the fee you so rightfully deserve. … You gave me back hope. Thank you, man! Out of my 36 years … I have never seen such kindness before. I don’t know what I did to deserve this; I’m very thankful nonetheless. Thank you for giving me hope again. Thank you for your generosity. There are still some really good people around.” (Federal criminal appeal client)

“There is no other attorney I’ve ever even heard of I’d rather have as chief counsel and leader of my defense/appeals than Jerome Buting. You’re the best. Period.” (Dane County client)

“Your advice and counsel were greatly appreciated. We appreciate you taking the time on your Sunday and evenings to help us. We are SO happy about the results! Thanks again.” (Waukesha County client)

“Thank you again … for everything. Five and one-half years of commitment, so many ups and downs and an outcome like that. You did a GREAT job.” (Waukesha County felony drug offense client)