Eyewitness Accounts Can Receive New Scrutiny

State Supreme Court Reverses Earlier Decisions

August 23, 2012|
By EDMUND H. MAHONY,
The Hartford Courant

HARTFORD — — In an opinion a legal scholar called "momentous," the state Supreme Court reversed itself Thursday and will allow defendants in criminal trials to use scientific testimony to attack identifications made by witnesses to crimes.

The court's decision in a double-murder case called State v. Brady Guilbert puts Connecticut among a growing number of jurisdictions that recognize research suggesting that human psychology can create flaws in the way witnesses observe, recall and — often much later — testify about events related to a crime.

The decision allows criminal defense lawyers, in circumstances approved by trial judges, to solicit expert testimony intended to create doubt about the reliability of witness accounts of crimes. With rare exceptions, defense lawyers in Connecticut have had to rely in the past on cross-examination, closing argument and instructions from judges to question the reliability of eyewitnesses.

"This is significant" said Professor Timothy H. Everett, who teaches at the criminal law clinic at the University of Connecticut's law school. "This is the latest in several signals for courts in Connecticut and around the country that the law now recognizes that people can be convicted on the basis of unjust identifications."

Until now, Connecticut law on expert testimony and eyewitness identification had been guided by two state Supreme Court precedents holding that jurors are best positioned to weigh the reliability of eyewitnesses and that testimony on the subject by experts would usurp the jury's role in the criminal justice system.

The decision, written by Justice Richard N. Palmer, said the court "now recognizes" that expert testimony concerning the reliability of eyewitnesses does not "invade" the jury's duty to decide what weight to give to testimony.

"An expert should not be permitted to give an opinion about the credibility or accuracy of the eyewitness testimony itself; that determination is solely within the province of the jury," the decision said. "Rather, the expert should be permitted to testify only about factors that generally have an adverse effect on the reliability of eyewitness identifications and are relevant to the specific eyewitness identification at issue."

The decision said that scientific advances suggest that the memories of eyewitnesses operate, in some cases, in ways that are not generally known and, in other cases, in ways that are counterintuitive.

The decision noted that courts elsewhere in the country now accept as fact new conclusions about eyewitness behavior. Among many: That there is little correlation between eyewitness confidence and accuracy, that eyewitness reliability may diminish when a weapon is used in a crime and that cross-racial identifications are considerably less accurate than same-race identifications.

Because of the advances in science, the court held that its two earlier decisions on the subject, in State v. Kemp and State v. McClendon, "are out of step with the widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror."

"This broad based judicial recognition tracks a near perfect scientific consensus," the decision said. "The extensive and comprehensive scientific research, as reflected in hundreds of peer reviewed studies and meta-analyses, convincingly demonstrates the fallibility of eyewitness identification testimony and pinpoints an array of variables that are most likely to lead to a mistaken identification."

Not specifically mentioned in the decision are two notorious Connecticut cases in which mistaken identifications resulted in the convictions and long imprisonments of two innocent men.

Lawrence Miller, a former guard at the federal prison in Danbury, was freed in 1995 after serving 12 years for assaulting two teenagers. In 2006, James Tillman of Hartford was released after serving 18 years in prison for a rape conviction.

"It is time to recognize that there are serious potential problems with eyewitness identification and that the common juror doesn't know what those problems are and so it is appropriate to utilize an expert," said attorney Karen Goodrow, a state public defender and director of the Connecticut Innocence Project.

Goodrow, whose Innocence Project won reversal of Tillman's conviction, called the Supreme Court decision a piece of a "larger fabric" of eyewitness measures being studied and enacted in Connecticut and elsewhere by courts and legislatures.

Earlier this year, an Eye Witness Identification Task Force, created by the state legislature and chaired by former state Supreme Court Justice David M. Borden, produced a report making a number of recommendations about how eyewitness evidence should be gathered and used in court.

Among other things, the task force studied procedures in use elsewhere and recommended that police departments adopt procedures to reduce the possibility that officers make subconscious suggestions when showing suspect photographs to eyewitnesses.

The office of the state's top prosecutor said Thursday that it will train prosecutors and police officers to comply with new legal requirements regarding eyewitnesses.

"This decision certainly provides more guidance to the trial courts as to when the court should allow defendants to put on expert evidence of eyewitness identification," Deputy Chief State's Attorney Leonard Boyle said. "Hopefully it will provide some clarity to everyone as to the proper way in which identification procedures should be employed."

Massachusetts-based defense attorney Lisa J. Steele, who has long advocated for a means to question eyewitness identifications, raised the challenge that resulted in Thursday's reversal by the Supreme Court.

She represented Guilbert, who was convicted of shooting one person in the face and killing two others in New London in October 2004. Steele argued at Guilbert's trial, and later to the Supreme Court, that Guilbert should have been permitted to call experts to testify about the reliability of his identification by multiple witnesses.

The Supreme Court said in its decision that Guilbert should have been allowed to call experts. But it upheld his conviction, saying that the experts would not have delivered testimony likely to have affected the jury's guilty verdict.