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Attacking Eyewitness Testimony
22 Apr 2016

Attacking Eyewitness Testimony

Eyewitness testimony. It’s in our movies, our television shows and our news broadcasts. It is the foundation upon which criminal cases are built, and, sometimes, upon which cases are won. It’s the witness identifying the defendant in open court. It is the proverbial “ace up the sleeve.” Why, then, according to University of Virginia law professor Brandon Garrett, has eyewitness testimony played the leading role in 75% of the 250 convictions overturned by DNA evidence between 1989 and 2010?

Eyewitness testimony is when a person witnesses a crime, accident, etc., and then takes the stand in court and recalls the details of what he or she witnessed. This testimony is convincing and compelling because the independent witness has no reason to lie or embellish; the witness is simply telling the court what he or she remembers. So, how does an Albuquerque criminal attorney attack a person’s memory? There are several strategies.

The simplest method is to attack the witness’s testimony directly.

Attacking the Witness’s Testimony

Attack the witness’s credibility.  Does the witness have a criminal record? Has the witness been offered leniency or any other form of compensation in exchange for his or her testimony? Does the witness personally know the defendant, the prosecutor, or any alleged victim? Does the relationship provide a reason why the witness’s testimony could be inaccurate, slanted, or a downright lie?

Attack the witness’s physical and mental characteristics. Does the witness wear corrective lenses or have hearing loss? How old is the witness and has the witness ever suffered from any form of diminished capacity? Is the witness currently prescribed any medication or under the care of a physician or psychologist?

Attack the witness’s social life.  Does the witness belong to any organization that may have an ulterior motive for providing the testimony? Does the witness consume alcohol on a regular basis? If the defendant is a minority, does the witness regularly socialize with members of that particular minority?

An experienced criminal defense lawyer will research the witness’s social media postings, such as on Facebook and Instagram.

Attack the environment in which the event occurred. Was it sunny or dark? Was it raining? Was the area crowded or secluded? What was the noise level? Was the witness speaking on the telephone at the time the event occurred?

Attack any inconsistencies that might exist. Such inconsistencies could include previous inconsistent statements or obvious inconsistent descriptions. Did the witness initially report the suspect as having a beard or mustache when he does not or did the witness initially report the color of the defendant’s clothing as blue when in fact they were black.

If the simple approach is not creating enough doubt, the Albuquerque criminal attorney can turn to science and the inherent fallibility of memory itself.

Using Science

According to a research study conducted by Northwestern Medicine and published in the Journal of Neuroscience, “recalling a memory more often makes that memory less accurate” and “instead of remembering the actual memory, you’re recalling the memory of the last time you remembered it and any mistakes that might have been introduced there.” So, that bright and sunny childhood memory may not have actually been that bright and sunny. The criminal attorney can ask how many times the witness has told this story prior to testifying in court and to whom was it told?

Science has also identified other weaknesses of human memory that are useful in attacking eyewitness testimony. The Misinformation Effect occurs when a witness is exposed to misinformation after witnessing the event. Misinformation, even when innocently introduced to the witness, can corrupt the memory to the point of ‘remembering’ that which never happened or did not even exist. Memory Error occurs when people forget events that happened or people from their past or even where they placed their car keys. Memory Bias is based on the scientific premise that human memory is formed using schemata, or ‘memory templates’, and we tend to remember the ordinary and mundane in a very generic manner, whether it actually exists that way or not.

So how do these scientific theories aid in discrediting eyewitness testimony? Obviously, a criminal attorney doesn’t want to ask the witness if he or she has ever heard of the Misinformation Effect, but your attorney might ask if the witness has discussed his or her testimony with any other witnesses or if the witness was exposed to any news coverage of the event in question or if the witness has used anything to refresh his or her memory and, if so, what did the witness use and who provided it? Creating a solid foundation of questions will not only subtlety lead to the introduction of a scientific theory but it will assist the audience (judge or jury) in applying that theory to the testimony being given.

In the end, whether the attorney uses the simple approach or the scientific approach or a combination of the two, attacking eyewitness testimony is not easy. It needs to be done with confidence but in a manner that does not come across as abusive. The judge and jury have no desire to be bored with scientific theories nor do they want to watch an innocent witness get bullied.

To schedule a meeting with an Albuquerque criminal attorney who is skilled in courtroom tactics, call Ray Twohig at 505.898.0400.


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