Category Archives: The Courtroom
Eyewitness Identification: Recognition vs Resemblance
Eye witness testimony is one of the most controversial forms of evidence encountered in the courts. The reason is that human memory is influenced by a number of factors including
- Environmental Conditions (lighting, weather, sound, etc)
- Duration of observation
- Environmental Stressors (being shot at, car accident, being chased, etc)
- Physical or mental impairments which can be temporary (drunk/high) or permanent (glaucoma)
- Harboring any cultural, racial, or other relevent bias.
- Harboring any motive to lie about the identification.
But these conditions seldom come into play when the witness recognizes the person, place, or thing. Recognition is the identification of something that the observer is very familiar with. The easiest example is the recognition of a spouse. If a woman says “my husband hit me” the police are not likely going to challenge her identification. It’s very doubtful that she could mistake a stranger for her husband (unless some of the above conditions exist). The reason is that she would be intimately familiar with her husband’s appearance. Similarly, we recognize our vehicles. It’s how we are able to pick them out in a parking lot among other similar vehicles. We take note of many little differences that make our vehicles different from other similar models like damage, bumper stickers, add-ons, etc.
That’s not to say people can mistakenly approach the wrong vehicle or come up behind a man and touch his arm only to discover he is not your husband. These things happen before recognition. Recognition is the final stage of identification, not the beginning. When police rely on an eye-witness identification they should be asking “how” do you recognize the person, place, or thing? This is where the rubber meets the road. Police try to determine if the individual is capable of recognizing the item. For example, if a man says he saw a 1963 Chevrolet Corvette speeding away from the crime scene we would ask “how do you know it was a 1963?”. If the man is a mechanic or Corvette aficionado and can explain that he recognized the rear split window available only on the 1963 model he becomes more believable. Witnesses may even recognize specific aspects of the item which, when taken with other accounts, might strengthen the overall association (partial identification). For example, one witness may recognize the vehicle and color. Another witness may not be able to tell you what kind of vehicle (or even the color) but recognizes a particular bumper sticker that they themselves have on their car.
The real problem with eyewitness “identifications” is when they fall short of recognition. This is sometimes referred to as resemblance. Certain words or phrases usually tip off investigators that the witness is relying on resemblance more than recognition. Resemblance occurs when the mind tries to find an “approximate” description based on subjective criteria or perceptions. This is the least reliable type of identification. Statements containing words such as “like”, “sort of”, “maybe”, “could have” all point towards a resemblance identification.
- “It kind of looked like a Chevy Blazer or Ford Bronco”
- “He was old, like maybe 40″
- “It could have been blue…or maybe red”
These statements can’t be ignored but you shouldn’t base a case upon them. There is simply too much indecision. When you have multiple witnesses offering this type of “identification” then things can really get confusing. Witnesses can give widely contradictory statements leaving investigators scratching their heads. That is where the additional questioning comes in to see if the witness recognizes the person, place, or thing and how they recognize it.
As authors you should consider how your characters might perceive certain data to make identifications. If your witness is going to be reliable they should have some experience or background that has educated them to make that identification. Your detectives also need to question any identification to determine the reliability of the statement, unless of course you want to present an incomplete or sloppy investigation. Your detective may be inexperienced or too gun-ho to make an arrest and rely too heavily on an eyewitness. In the end your DA character is the one who ultimately makes the decision as to the weight of the witnesses account. Eyewitness “identifications” that prove unreliable can be effective tools to quickly change the storyline and keep your reader engaged.
Author John Grisham Taken To Task by Forensic Scientists
There is an interesting article recently released by The Crime Lab Report in which the editors take New York Times Best Selling Author John Grisham to task over statements he gave while testifying before a Senate committee of the United States Congress. Mr. Grisham’s statements do seem puzzling given the testimony cited from the trial but in his defense he may have been working off of someone else’s data (and I am only going off of this report). Nearly all of the methods and practices of the forensic sciences were utilized or discovered in other scientific fields long before they were ever applied to criminal investigations. Additionally, they have been “subject” to peer review from the scientific community for as long as they have been in existence. In many cases this is over a century! The main thing I take away from the article, and the debate, is that sometimes it’s the attorneys who misrepresent forensics, not the scientists (although that happens too).
I am always amazed that as an expert witness I have to go through voir dire and demonstrate to the court that I am an expert before giving forensic testimony to the jury. However, a lawyer can simply say “the evidence will prove…”X” without objection during opening and closing statements. Granted they are not giving “testimony” per se but the jury still hears the statement. Lawyers are intelligent professionals and can have great sway in convincing a jury of their particular point of view (that is their job after all) so it is interesting to me that they can effectively give their opinions on the value or weight of forensic evidence without ever proving they have the expertise to make such claims. I’m not sugesting lawyers be held to the same standard mind you, but it is a reality of the judicial system in the United States. Anyway, just some interesting reading.
http://www.crimelabreport.com/library/monthly_report/2011-1228.htm
When Good Lawyers Ask Blind Questions
This video has nothing to do with forensics but it is such a good example of what can happen when professionals ask blind questions. I’ve been on the receiving end in court on a number of occasions. Trials are a series of complex arguments stacked upon each other, so it’s understandable when a lawyer veers a little off track. But when that happens, it can be like watching a train wreck. As a witness, you can actually watch the build-up. It begins with a pause, an extra glance at their notes, or widening of the eyes. That’s the moment they should have waited but instead rushed headlong into the unknown.
It happens to prosecutors and defense but typically the defense attorneys are more prone to it in my experience. Probably because they are looking for any scrap of reasonable doubt they can toss to the jury, and they get a little excited when they think they have a “gotcha” moment. I once had an attorney challenge my expertise as a footwear examiner in open court. I was sure he remembered me but apparently not. Imagine his surprise to learn that he had hired me four months earlier to give a presentation on footwear evidence to a professional association of fellow attorneys. Yikes!
During a murder trial a prosecutor once asked me what test I had used to determine that a light was on when I arrived at the scene. No kidding. How can you possibly answer that without making him look like a dope? In another murder trial the defense attorney begin my voir dire (questioning the witness to challenge their expertise basically) by saying “So you’re a forensic entomologist. I didn’t even know that was a science” to which I promptly replied “Yeah…we’ve got text books and everything”. It got a good laugh out of the jury and I think even the judge smirked a little, but how did he expect to challenge my expertise after admitting he didn’t even know that field was legitimate?
I guess the point is not to share war stories but to remind you that these gaffes can add a lot of humor or tension to courtroom dialog. It happens to the best of people and has more to do with impulse control than intelligence. Most of these attorneys are a heck of a lot smarter than I am, they just got caught up in the moment. So consider adding in a blind question or two and watch how it can transform a character from a hero to a zero in mere seconds.
Why Do Some Juries Acquit?
I have to admit a few things. I didn’t follow the Casey Anthony trial and I purposely don’t like to comment publicly about on-going trials (especially ones I’m not following). However, I understand the dissatisfaction with today’s not guilty verdict. I have had a bit of experience with juries and while most are made up of reasonable people there are some times when they make a judgement that seems to defy belief.
First of all, juries aren’t always told all of the facts. Second, and I need to point this out, the prosecution doesn’t always make their case. I don’t mean to pass any judgement on this jury or case because I wasn’t in the deliberation room and haven’t heard them give any statements. But I have had jurors explain why they didn’t vote to convict in other cases and these reasons might help you form characters and dialog in your novels. So, when the prosecution does put on a good case and the jury still won’t convict, here are a few reasons why that might happen.
- A member(s) fundamentally has a problem with passing judgement on another person, especially when that person has any redeeming qualities or the death penalty is involved. A colleague had a case where an elderly juror stated (after trial) that the suspect looked just like her grandson and her grandson could never commit such a crime. (hence, the suspect couldn’t have done it). YIKES!
- A member(s) has a flawed expectation of forensics and the evidence (like DNA, fingerprints, etc) that “should” be there. In the Anthony case there was no DNA from the suspect on the victim at the dump site. First, DNA won’t survive that long in that environment. Second, even if it did, so what? Wouldn’t we expect to find the mother’s DNA on her daughter (except maybe the duct tape but that depends on a few things).
- A jury member(s) can’t make a mental connection between two events (i.e. connect the dots). They need each and every step in a thesis accounted for and proven. I once had a burglary case where I found the suspect’s fingerprints on the outside of a window that was the point of entry. The home was in a rural area nowhere near the suspect’s home. Once identified, police found stolen items in the suspect’s possession. Long story short, since the fingerprint was on the outside of the window (and not inside) one juror didn’t believe it proved the suspect entered the residence even though they had the stolen items in their possession.
- A juror(s) doesn’t believe a witness(es) and therefore dismisses the relevance of all evidence. Some jurors have prejudices. Additionally, some witnesses lie about certain things that may not be relevant to the crime. For example, if an eye witness is unfaithful to his wife it proves he’s a liar but it shouldn’t be proof that he would lie under oath about seeing the suspect leave a bank. The two things are completely different because they effect the witness in different ways. People have different motives for lying and that lying may be conditional on location (I won’t lie in church, court, therapy, etc.) but I will lie at the grocery store, classroom, or friend’s house. I’m not excusing it, just explaining how some people justify lying when not in certain “judgement venues”. But the defense will say “If you’d lie about the affair, how can we be sure you aren’t lying about seeing the defendant?”
- A juror gets “overwhelmed” with opposing expert testimony. This is a common strategy. In some cases the experts act professionally and just don’t completely agree on some issue(s). In other cases, however, the “expert” (either defense or prosecution) is a nutbag and jurors just can’t tell the difference.
Understanding Search Warrants
Search warrants are a common legal instrument used by law enforcement during criminal investigations but getting one is not as easy as they make it seem on television. Detectives can’t just say “I’ll call the DA or judge so and so and have them issue a warrant”. If detectives had that kind of power our rights would be pretty meaningless. Most of the time it is the detective, not the DA, who will write the warrant. This is because detective is the one with the information needed to justify the search.
The search warrant is only the document describing what is to be searched for and the location to be searched. Generally speaking these descriptions have to be fairly detailed. For example, it isn’t enough to say you want to search a particular address (home), the detective must describe the home (ranch style, attached two car garage, red brick fascia, etc.) to ensure that the correct home is searched. The warrant also has to specify exactly what is being searched for. Whether that is a shotgun, paper documents, blood, hairs, etc. and can get very detailed. The catch is that detectives may only search locations capable of holding such an item. For example, if the warrant was written to only look for a long barreled shotgun, detectives could not search in a jewelry case, medicine cabinet, kitchen drawer, etc. because obviously a shotgun couldn’t reasonably fit in there. If an officer does search one of those locations and finds something illegal like drugs or child pornography, then the evidence may not be used in any trial (although it can be seized and destroyed).
The supporting document for the search warrant is called the affidavit. The affidavit lays out the probable cause to believe that specific items will be found in a specific location. The affidavit is usually written by the lead detective (but can be done by others with case knowledge) and is presented to a judge for review and approval. The detective has to swear to the judge under the penalty of perjury that the information in the affidavit is true to the best of his knowledge. It is not always enough to say that just because a suspect owns the property that there is probable cause to believe that evidence will be found there. Every case is looked at individually and the judge will make the final decision.
The Truth, the Whole Truth, and Nothing but the Truth…
These are the words that all witnesses affirm to as they take the stand in a criminal case. If you carefully consider the choice of words used in that oath you will find that they encompass the totality of possible answers save one. An answer admonished by the courts. This reality exists in courtrooms all over America every single day and it can make for a very interesting device in your novel.
An admonition is an order by the court preventing a witness from revealing specific information to the jury during testimony. Often times these restrictions are understandable and necessary to ensure a fair trial. This information, as deemed by the court, may unfairly prejudice the jury against the defendant. These facts may include prior convictions for unrelated crimes (a fraud conviction may have no connection to a rape charge), prior statements (maybe your suspect is a flaming bigot), prior non-criminal acts, etc. The judge has the final say on what is allowed and what is not and that decision may be subjective.
A friend and mentor of mine once said that the oath should be followed by the words “to the extent the court will allow”. Courtroom dramas or scenes run the risk of being “dry” to the reader. Hell, they’re usually dry and boring in real life. But you can add some real emotion to your scenes by having the courts exclude evidence that turns out later to be very important. Or you may use an admonition ruling to create tension between characters (like the judge, prosecutor, star witness, etc.).
The truth is that jurors don’t always hear the whole truth. Most of the time it is for a good reason, but occasionally a judges ruling leaves almost everyone scratching their heads.
