Flaws in balancing test have been revealed by scientific research over past 3 years
By Dave Collins
Associated Press
HARTFORD, Conn. (AP) — Before Dashawn Revels was convicted of murder and sentenced to 55 years in prison in 2011, a Connecticut judge allowed the jury to hear testimony from a prosecution witness who saw the shooting at night from 265 feet away in her fifth-floor apartment.
The witness, Fidelia Carrillo, didn’t see the shooter’s face but identified Revels as the killer later the same night, when New London police drove her by Revels and shined the cruiser spotlight on him as officers detained him. She said he was wearing the same clothes as the killer.
Two years later in a courtroom, Carrillo misidentified an intern from the public defender’s office as the shooter as he sat next to Revels during a hearing on whether to allow Carrillo’s identification as evidence.
The state Supreme Court is now mulling whether Revels’ murder conviction should be overturned. But the justices are taking the case a step further by considering whether Connecticut should join other states and abandon a balancing test created by the U.S. Supreme Court in 1977 and used by judges nationwide to determine whether to allow eyewitness identifications as evidence.
Flaws in the test have been revealed by scientific research over the past three decades that shows how unreliable eyewitness identifications can be, and the result is judges are using a bad method to decide when to admit identifications into evidence, defense lawyers and psychologists say.
“There’s growing indication that eyewitness identifications can be problematic,” Connecticut Supreme Court Justice Richard Palmer said in December when the court heard Revels’ appeal, which is one of three cases in which the court is considering witness identification issues.
The Innocence Project, a New York-based national legal group that has won the exonerations of more than 300 people based on DNA tests, says 75 percent of those people were wrongfully convicted, at least in part, by mistaken witness identifications.
The Innocence Project, the American Psychological Association and the Connecticut Criminal Defense Lawyers Association are urging the Connecticut Supreme Court to devise a better method than the U.S. Supreme Court test, which came in a case named Manson v. Brathwaite.
“What we’re really concerned with is preventing wrongful identifications,” said Karen Newirth, a senior fellow at the Innocence Project in Manhattan.
New Jersey and Oregon already have replaced the test, and Massachusetts is considering doing the same.
The balancing test is used in cases where judges find that police were suggestive when witnesses identified suspects. When judges make that finding, they then must determine whether the identifications are still reliable by considering the witness’s certainty, the accuracy of the description and other factors.
The biggest problem, defense lawyers say, is that studies show those factors can be corrupted by suggestive actions by police, rendering the test invalid.
“The test has a very perverse result,” Newirth said. “The Supreme Court basically directed trial courts to balance suggestion against (witness) reliability. What we know is that suggestion inflates confidence. It inflates people’s recollection of how good their attention was.”
Revels’ public defender, James Streeto, says New London police were extremely suggestive when they drove Carrillo past a detained Revels and shined the cruiser spotlight on him. But the judge ruled that Carrillo’s testimony nonetheless was reliable.
“It may be the most suggestive identification that I’ve ever seen,” Streeto told the state Supreme Court in December. “In fact, it may be the most suggestive identification possible.”
Prosecutor Mitchell Brody defended Carrillo’s identification. He said she saw a man with a red cap and camouflage jacket shoot the victim, 20-year-old Bryan Davila, and that’s exactly what Revels was wearing.
Although there were other men at the scene wearing red hats, Revels was the only one wearing a green and black camouflage jacket, Brody said.
Revels, now 25, of New York City, was arrested shortly after the shooting about a mile away in another part of New London. He told police that he was with a group of men who got into an argument with Davila, but he denied being the shooter.
Carrillo told authorities the suspect was clean shaven, but Streeto said Revels had a goatee or light mustache at the time. Streeto also said Revels tested negative for gunshot residue, police never found the gun and a motive was never established.
Prosecutors claimed that Revels confessed to the shooting during a police interview, but Streeto denies the allegation. Streeto said it’s not clear from the recording of the interview whether Revels said “I shot back” at Davila or “we shot back” at him.
It’s not clear when the Connecticut Supreme Court will rule on the three witness identification cases.
Revels’ mother, meanwhile, is hoping her son gets a new trial as soon as possible.
“Literally it’s a nightmare,” Celina Sostre, of New York City, said. “It’s very hard. It’s a waiting game. ... I believe in my son, what more can I say?”
