July 15, 2020 • 48 mins
In the season premiere, host Phil Holloway investigates the problems with eyewitness testimony and the case of an innocent man who was put away because of faulty memory.
Learn more about your ad-choices at https://www.iheartpodcastnetwork.com
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
This episode includes discussion of sexual assault. Listener discretion is
advised if you will place your left hand on the
Bible and raise your right hand, and please repeat after
me and I do solemnly swear. The jury then titled
action find the defendant guilty of the prime It makes
(00:21):
no sense, it doesn't fit. If it doesn't fit, you
must aquit. We all took the same of the office.
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,
(00:43):
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
(01:03):
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,
(01:26):
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
(01:47):
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
(02:10):
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
(02:30):
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
(02:53):
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
(03:13):
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
(03:42):
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
(04:03):
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
(04:24):
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
(04:45):
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.
(05:11):
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
(05:34):
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
(05:56):
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,
(06:20):
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.
(06:40):
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
(07:01):
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
(07:25):
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.
(07:48):
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
(08:10):
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
(08:30):
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
(08:50):
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,
(09:11):
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
(09:33):
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
(09:54):
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
(10:16):
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,
(10:39):
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
(10:59):
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
(11:23):
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
(11:46):
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
(12:08):
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
(12:33):
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
(12:54):
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
(13:16):
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
(13:39):
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.
(14:01):
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
(14:26):
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
(14:47):
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
(15:09):
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
(15:29):
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
(15:49):
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
(16:11):
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
(16:36):
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
(17:01):
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
(17:24):
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
(17:49):
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
(18:12):
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
(18:32):
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
(18:55):
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
(19:16):
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
(19:37):
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
(19:58):
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
(20:19):
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
(20:40):
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
(21:05):
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
(21:28):
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,
(21:48):
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
(22:09):
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
(22:29):
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
(22:51):
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.
(23:15):
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
(23:40):
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
(24:02):
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
(24:24):
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,
(24:48):
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
(25:09):
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
(25:30):
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
(25:51):
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
(26:12):
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
(26:35):
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,
(26:58):
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
(27:20):
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
(27:40):
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.
(28:01):
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
(28:23):
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
(28:58):
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
(29:20):
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
(29:43):
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
(30:08):
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.
(30:29):
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,
(30:53):
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
(31:15):
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
(31:37):
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,
(32:00):
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
(32:21):
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
(32:42):
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,
(33:06):
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
(33:28):
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
(33:51):
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
(34:13):
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
(34:33):
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,
(34:56):
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
(35:18):
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,
(35:40):
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
(36:02):
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
(36:22):
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
(36:44):
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
(37:05):
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
(37:25):
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
(37:48):
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
(38:10):
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
(38:33):
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
(38:55):
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
(39:19):
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
(39:41):
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
(40:03):
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,
(40:27):
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
(40:50):
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
(41:11):
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
(41:34):
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
(41:55):
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
(42:19):
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
(42:43):
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
(43:05):
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
(43:26):
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
(43:49):
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
(44:09):
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
(44:31):
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
(44:54):
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
(45:15):
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,
(45:37):
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
(45:59):
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
(46:22):
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
(46:44):
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
(47:04):
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
(47:25):
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.
(47:48):
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
(48:10):
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.
(48:34):
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.
This episode includes discussion of sexual assault. Listener discretion is
advised if you will place your left hand on the
Bible and raise your right hand, and please repeat after
me and I do solemnly swear. The jury then titled
action find the defendant guilty of the prime It makes
(00:21):
no sense, it doesn't fit. If it doesn't fit, you
must aquit. We all took the same of the office.
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,
(00:43):
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
(01:03):
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,
(01:26):
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
(01:47):
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
(02:10):
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
(02:30):
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
(02:53):
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
(03:13):
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
(03:42):
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
(04:03):
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
(04:24):
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
(04:45):
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.
(05:11):
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
(05:34):
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
(05:56):
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,
(06:20):
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.
(06:40):
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
(07:01):
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
(07:25):
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.
(07:48):
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
(08:10):
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
(08:30):
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
(08:50):
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,
(09:11):
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
(09:33):
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
(09:54):
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
(10:16):
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,
(10:39):
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
(10:59):
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
(11:23):
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
(11:46):
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
(12:08):
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
(12:33):
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
(12:54):
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
(13:16):
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
(13:39):
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.
(14:01):
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
(14:26):
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
(14:47):
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
(15:09):
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
(15:29):
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
(15:49):
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
(16:11):
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
(16:36):
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
(17:01):
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
(17:24):
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
(17:49):
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
(18:12):
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
(18:32):
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
(18:55):
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
(19:16):
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
(19:37):
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
(19:58):
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
(20:19):
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
(20:40):
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
(21:05):
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
(21:28):
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,
(21:48):
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
(22:09):
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
(22:29):
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
(22:51):
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.
(23:15):
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
(23:40):
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
(24:02):
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
(24:24):
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,
(24:48):
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
(25:09):
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
(25:30):
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
(25:51):
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
(26:12):
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
(26:35):
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,
(26:58):
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
(27:20):
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
(27:40):
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.
(28:01):
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
(28:23):
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
(28:58):
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
(29:20):
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
(29:43):
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
(30:08):
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.
(30:29):
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,
(30:53):
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
(31:15):
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
(31:37):
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,
(32:00):
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
(32:21):
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
(32:42):
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,
(33:06):
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
(33:28):
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
(33:51):
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
(34:13):
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
(34:33):
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,
(34:56):
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
(35:18):
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,
(35:40):
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
(36:02):
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
(36:22):
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
(36:44):
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
(37:05):
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
(37:25):
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
(37:48):
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
(38:10):
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
(38:33):
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
(38:55):
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
(39:19):
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
(39:41):
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
(40:03):
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,
(40:27):
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
(40:50):
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
(41:11):
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
(41:34):
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
(41:55):
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
(42:19):
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
(42:43):
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
(43:05):
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
(43:26):
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
(43:49):
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
(44:09):
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
(44:31):
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
(44:54):
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
(45:15):
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,
(45:37):
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
(45:59):
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
(46:22):
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
(46:44):
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
(47:04):
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
(47:25):
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.
(47:48):
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
(48:10):
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.
(48:34):
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.
Popular Podcasts
1. Stuff You Missed in History Class
Join Holly and Tracy as they bring you the greatest and strangest Stuff You Missed In History Class in this podcast by iHeartRadio.
2. Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations.
3. Crime Junkie
If you can never get enough true crime... Congratulations, you’ve found your people.