Court Considers Batch Of Eyewitness ID Cases

, The Connecticut Law Tribune

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Attorney Lisa J. Steele

According to some scientific studies, what a person believes he is seeing during a high-stress situation—such as a shooting or robbery—may not be accurate. Increasingly, defense lawyers are asking judges to allow juries to hear expert witnesses explain such studies in an attempt to discredit eyewitness testimony.

Johnnie Jones was left paralyzed after getting robbed and shot late one night in New Haven in 2009.

He initially didn't know who attacked him, but then began his own investigation. He thought one of the assailants was someone he played football with in grade school. He found a photo of the man through his Myspace page. Those photos in turn helped Jones immediately identify the same man when police later presented him with photos of eight possible suspects.

Nathan Johnson, who was later convicted of the crime, is challenging the identification, claiming that Jones' own personal sleuthing tainted the police photo line-up results.

On Dec. 11, the state Supreme Court is set to hear arguments in Johnson's case, as well as in arguments in two other appeals brought by defendants questioning eyewitness identifications that led to their convictions. The Innocence Project, the Connecticut Criminal Defense Lawyers Association and state and national psychologists associations are weighing in with amicus briefs.

"This is a problem that the nation's courts are wrestling with, not just in Connecticut," said James Streeto, an assistant public defender who represents one of the defendants. "The essential problem is there are a good many factors that impact perceptions, memory and the ability to recollect what you've seen."

According to some scientific studies, what a person believes he is seeing during a high-stress situation—such as a shooting or robbery—may not be accurate. Increasingly, defense lawyers are asking judges to allow juries to hear expert witnesses explain such studies in an attempt to discredit eyewitness testimony.

In light of these studies, defense lawyers are urging the state Supreme Court to provide a more stringent standard under the state Constitution for gauging the reliability of eyewitness identifications.

For instance, Streeto argues that studies have shown there is at best a weak correlation between the level of certainty demonstrated by a witness viewing a police line-up of photos or actual suspects and the accuracy of the identification. A witness' certainty about the identification should no longer be considered a factor in measuring whether the identification is reliable, he said.

Streeto said that someone who tells police or a jury, "Yes, I'm certain that's the man," obviously sounds more certain than a witness who hedges and uses terms such as "maybe." However, Streeto said the certainty displayed by the witness has more to do with her personality than the accuracy of her memory.

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