Saturday, August 3, 2013

GateHouse: Cross-examination often inadequate for eyewitness

Matthew T. Mangino
GateHouse News Service
August 2, 2013

More than 75,000 prosecutions every year are based entirely on eyewitness identification. Some of those identifications are erroneous. The U.S. Supreme Court believes that cross-examination is the panacea to eyewitness misidentification.

In the famous courtroom drama "12 Angry Men," rated by the American Bar Association as one of the 25 greatest legal movies of all time, juror No. 8, played by Henry Fonda, earnestly advocated for a not-guilty verdict.

Fonda started out as the only not-guilty vote. The turning point of the deliberations occurred when an older juror recalled that the state's prized eyewitness, who had observed the murder through her window as she laid in bed, had red marks on her nose left from wearing eyeglasses that were absent during her testimony. The older juror asked a reserved bespectacled juror, "Do you wear your glasses when you go to bed?" The bespectacled juror responded, "No, I don't. No one wears eyeglasses to bed."

Ultimately, Fonda succeeded in convincing his fellow jurors to acquit the young defendant accused of stabbing his father. Justice prevailed not because of an effective cross-examination — apparently the eyeglasses-less observation at night through a window did not come up during trial — but rather a persistent juror in search of justice won the day.

The 1957 movie raised an issue that is only now beginning to gain traction, the reliability of eyewitness identification.

The U.S. Supreme Court, as recently as last year, reaffirmed that the rules of evidence, jury instructions and most importantly, cross-examination are safeguards that protect an accused from the use of unreliable evidence like inaccurate eyewitness identification.

In "12 Angry Men," cross-examination failed to expose a witness' inability, due to impaired vision, to credibly identify the accused. In the movie, the failed cross-examination probably had more to do with bad lawyering than a fissure in the mechanism of cross-examination.

In real life, things do not always work out like they do in the movies. Jules Epstein, in "The Great Engine that Couldn't: Science, Mistaken Identification, and the Limits of Cross-Examination," wrote that even effective cross-examination can be inadequate to protect an accused wrongfully convicted through the testimony of an eyewitness.

Epstein referred to a passage in James M. Doyle's book "True Witness." Doyle wrote about the trial of Ronald Cotton. In 1984, a college student was assaulted in her apartment by an unknown intruder. Two days later, the victim picked Cotton's photograph out of a photo array. She said Cotton's photograph "looks most like her assailant." Later, the victim hesitatingly picked Cotton out of a lineup and ultimately identified him as her attacker at trial.

Cotton's defense counsel, through cross-examination, unlike in "12 Angry Men," was able to establish "the eyewitness victim, who wore eyeglasses, did not have them on during the assault." The witness later admitted the light source for the identification came from blinds, a bedroom window and lights from a stereo.

Cotton was nonetheless convicted. He was later exonerated through DNA evidence. Epstein argues that "judges and lawyers must disabuse themselves of the notion that cross-examination's great engine has the efficacy to redress and prevent the recurrence of mistaken identification."

Advances in the social sciences and technology have cast a new light on eyewitness identification. Hundreds of studies on eyewitness identification have been published in professional and academic journals. One study by University of Virginia Law School professor Brandon L. Garrett found that eyewitness misidentifications contributed to wrongful convictions in 76 percent of the cases overturned by DNA evidence.

At least one U.S. Supreme Court Justice, Sonia Sotomayor, has acknowledged the shortcomings of cross-examination. She wrote, "eyewitness identifications' unique confluence of features — their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process — can undermine the fairness of a trial."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at and follow him on Twitter at @MatthewTMangino.

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