Scientists have long claimed that eyewitness testimony can be both highly convincing and incredibly unreliable.
In fact, according to the Innocence Project, almost three-quarters of convictions overturned by DNA evidence came down to bad eyewitness testimony.
Observers say Massachusetts has made progress in how it uses eyewitness testimony in court, but problems persist.
'He thought he would not be convicted because...it wasn’t him.'
Ramon Valle is facing 20 years in prison for a home invasion in Springfield, Massachusetts, after refusing a plea deal that could have gotten him out in five.
He was sure he’d be acquitted.
“He had faith in the criminal justice system,” said his lawyer, Jessica LaClair. “He thought that he would not be convicted because, you know, it wasn't him.”
But largely on the strength of two eyewitness accounts, Valle — a 42-year-old father of four with no previous criminal record — was convicted.
When LaClair took his case on appeal, she argued that police did a terrible job collecting the eyewitness evidence.
“Something that the George Floyd protests highlighted for the public is that each police department is its own entity,” LaClair said. “There's no real systemic oversight of police department policies and practices.”
Many experts say this should not still be happening.
Over the past two decades, federal and state reports and rulings were meant to catch the criminal justice system up on the science of eyewitness identification. What used to be convincing in court, scientists say, is often simply not true.
'They believed the brain works like a video camera'
Eyewitness testimony is among the most persuasive evidence in the trial system. Think of all the movies and TV shows — from “My Cousin Vinny” to “Perry Mason” — where the witness points at the defendant in court.
It happens in real life too.
Jessica LaClair said, in her client's case, a witness was asked on the stand if she knew who did the crime. She pointed to Valle.
"And then she does that again and again," LaClair said. "The empirical research shows us it’s really difficult for a jury not to be persuaded by that.”
Historically, juries were expected to figure out the credibility of eyewitnesses on their own, and it was up to the lawyers to point out any inconsistencies. There was little concept of eyewitness science in the legal profession and little pushback when a witness claimed to remember exactly what happened.
“They believed that the brain works like a video camera, that you can walk around the world and you're sort of like recording things, and then you can just sort of play it back,” said Radha Natarajan, executive director of the New England Innocence Project.
“And that's why it played such a strong role in so many convictions,” she said. “Because when an eyewitness said to a juror, ‘Yes, I was there, I saw him. He's the man,’ they had to basically defer to that and they didn't have any reason to doubt it. But now we have lots of reasons to doubt it.”
Those doubts gained steam in the 1990s, when DNA started to exonerate people in prison. When the Innocence Project analyzed those cases, they found about 70% of them involved mistakes by eyewitnesses.
“The science had actually been developing for quite some time. It was the law that hadn't caught up,” Natarajan said.
In 1999, U.S. Attorney General Janet Reno put out a report on science-based methods to make eyewitness identifications more reliable — from asking open-ended questions to designing fairer lineups and photo arrays.
“There was a sense in the air that, ‘OK, this is going to fix everything.’ And it didn't,” said Shrewsbury-based attorney Lisa Steele, who handles appeals for low-income clients in Massachusetts and Connecticut. “The Department of Justice sent copies of this booklet out to every police department in the country, and as best one could tell, most of them went promptly into the nearest recycling bin.”
Yet there has been some headway. In 2011, the Supreme Judicial Court of Massachusetts assembled a committee to study eyewitness testimony.
The committee’s report, released in 2013, focused on educating police, judges and juries on the science of memory. It also addressed outside factors at a crime scene — like distance and lighting — and whether the witness was impaired.
Steele said the SJC report was a good step but it should have gone further than it did. That’s because the report only made recommendations, not rules.
“Some of the police departments are doing a phenomenal job,” Steele said. “The problem is they're not required to.”
Two years after the SJC report, a court case called Commonwealth vs. Gomes did lead to changes in courtroom procedures. Most notably, the ruling said judges must instruct juries on the complexity of human memory, including the influence of stress and other factors on eyewitness evidence.
Many lawyers in Massachusetts say police and courts have improved since then — with some exceptions.
'They didn't take those steps'
Jessica LaClair considers the case of her client, Ramon Valle, one of those exceptions.
In May, 2014, Valle was working as a personal care assistant in a five-unit apartment building in Springfield. LaClair said two women came to that building one night and made a lot of noise.
So Valle “came outside and said, 'Could you could you quiet down, please?'” LaClair said. “And those ladies continue to cause a ruckus. And he asked them again to leave. This created some tension.”
Later, according to court documents, the women were having a party in one of the apartments. They said two men stormed the place and threatened them with guns. Several people called 911.
When the police arrived, LaClair said Valle came out on his porch to tell the police he heard the shots.
Meanwhile, the women were ushered into the backseat of a police cruiser, and after some discussion, told an officer they recognized Valle on the porch as one of the intruders. Valle was immediately arrested.
According to LaClair, the women were then driven to where Valle was standing in handcuffs.
“And each witness is asked, ‘Is this the person who you think came into your … apartment with a weapon?’ And they both, again, identify him,” LaClair said. “Essentially that's where the investigation ends.”
This kind of identification is called a show-up, where a suspect is stopped at the crime scene and a witness points them out right there.
LaClair — and many others — say show-ups are inherently suggestive since there’s only one person to choose from.
In Valle’s case, LaClair said police made additional mistakes. They left the women alone, together, to confirm each other’s stories. They asked them to identify the suspect while he was cuffed and looking guilty, instead of bringing them all back to the police station for a photo array.
“So there were investigative tools police had to minimize the risk that that was a bad, unreliable identification,” LaClair said. “They didn't take those steps.”
It’s not that LaClair thinks the women were lying. Rather, she said, they likely recognized her client from the earlier dispute and, in a phenomenon called “unconscious transference,” confused him with one of the intruders.
Even though there was no forensic evidence, such as fingerprints or a weapon, Valle was convicted at trial.
On appeal, LaClair asked for the official Springfield Police Department eyewitness procedures and found they hadn’t been updated since the SJC report.
A spokesman for the Springfield police declined to address Valle’s case. He said the department follows the SJC’s recommendations and emailed a link to the 2013 report, but did not provide a specific policy for the Springfield police.
'It's better for 10 guilty people to go free than for one innocent person to be in prison'
Police and prosecutors acknowledge that show-ups — when a witness identifies a suspect at the crime scene — can be suggestive. But Hampshire County prosecutor Steven Gagne said they’re also very useful, not only for catching the person who did the crime, but clearing someone who didn’t.
Gagne had a recent case where an elderly woman described a man who snatched her purse in downtown Northampton.
“A person seen matching the description was stopped about a block away about 10 minutes later,” Gagne said.
The police drove a witness by that corner, and she said officers had the right guy.
In this case, Gagne said police then found other evidence, including the victim’s wallet in the suspect’s pocket. Gagne acknowledged they could have brought the man back to the police station for a less hurried identification. But what if it wasn’t him?
“So now you've detained the person for two to three hours to conduct an ideal photographic array procedure pursuant to the SJC, and then come to find out it's not even the right person,” Gagne said. “That's even a greater intrusion, I think, on their privacy interests.”
There are ways to make show-ups more reliable, he added, by separating witnesses during the show-ups so they don’t influence each other, and making sure witnesses don’t see a suspect in handcuffs.
Radha Natarajan from the New England Innocence Project, who was on the SJC eyewitness committee, said show-ups have largely been skipped over in reforms. She said she understands that both police and courts don’t want to lose that tool for catching a criminal, but she believes the risk of catching the wrong person is often too high.
“That's actually the underlying premise of the entire criminal legal system,” she said, “is that it's better for a guilty person — for 10 guilty people — to go free than for one innocent person to be in prison.”
'If there's a gunshot going off, you're focused on the gun, not on the person's face'
When eyewitness testimony is faulty, it’s not always because of what the police did or didn’t do. Sometimes it comes down to what happens in the courtroom.
Northampton, Massachusetts, attorney Myles Jacobson said his client might not have been convicted if the jury understood the latest science. The case revolved around a 2007 shooting near a nightclub in Springfield.
Jacobson’s client, Phillip Ayala, admitted to making angry threats earlier in the evening in the club staircase because he wasn’t allowed into the club. But, according to Jacobson, Ayala claimed he eventually left the area without incident.
Later that night, a man was shot and killed in the street near the club. A witness who was about 50 feet from the shooting — and who had previously been at the nightclub — picked Ayala out of a photo array.
Ayala was convicted of first-degree murder and sentenced to life in prison without parole.
Jacobson, who handled Ayala’s appeal, said the police followed proper procedures but that's no guarantee the witness picked out the right person. He said the jury was not told that the witness might have conflated the person he saw on the club staircase with the killer on the street — and that they may in fact have been two different people.
“The whole question is, did (the witness) see the face of the shooter or did he simply see a shooter and superimposed the face of the man on the staircase?” Jacobson said.
The witness claimed he saw the shooter in the illumination of the muzzle flash as the gun went off. So Jacobson hired experts to explain that is scientifically impossible, since a muzzle flash is more like a spark, a thousand times faster than blinking your eye.
What’s more, research shows that in the middle of a traumatic shooting, a witness is not likely to fix on a face.
“If there's a gunshot going off, you're focused on the gun, not on the person's face,” Jacobson said.
But the appellate judge was not convinced and upheld the conviction. Ayala is now going through another appeal, without Jacobson as counsel.
'My days are so full of frustration and anger'
Ramon Valle is about five years into his sentence.
Last fall, after Valle lost his first appeal, his case went to the Massachusetts Supreme Judicial Court. Valle lost that appeal too. His lawyer, Jessica LaClair, is now working to reduce his sentence.
In the meantime, LaClair speaks to him by phone every few weeks. She recorded one conversation and asked how he was doing.
“My days are so full of frustration and anger,” Valle told her on the call. “Waking up every morning is like a reminder to me of how the system failed me, a man with no criminal past, a hardworking man. They refused to hear me.”
Valle said he thinks about his family every day.
“They are my first thought in the morning,” he said, “and my last thought at night. I think about being with them again, hoping that the justice system can get it correct.”
This is the first in a three-part series, Questioning The Witness — a look at the evolving science of eyewitness testimony and the people with the greatest stake in how it’s used.