Witnesses' memories can leave truth murky

 Eyewitness testimony in Ferguson case fails to provide a lucid narrative

By Catherine Martin
The Daily Record Newswire

ST. LOUIS — Anyone hoping that documents released after the Ferguson grand jury decision late last month would provide a clear narrative of what happened when Michael Brown was shot soon realized there was no such clarity.

Roughly 60 witnesses testified in front of the grand jury, which met 25 times over about three months to hear evidence. The witness accounts of that day vary wildly. Officer Darren Wilson, for example, said Brown reached into his car and tried to grab his gun. Dorian Johnson, who was with Brown during the shooting, said Wilson reached out of the car and grabbed Brown.

Witnesses not directly involved in the incident didn’t make things any clearer. One man said he thought Brown had a gun, and that he thought he saw Brown throw it to the ground. Another witness said Brown had his back to Wilson when Wilson fired shots, a narrative not supported by forensic evidence.

While the testimonies don’t provide a lucid narrative, they do make one thing clear: Eyewitness testimony is unreliable, said Gary Wells, an Iowa State University professor and expert on the topic.

“Memory is not like a video system that you click and can review verbatim,” he said. “It’s reconstruction in the mind based on bits and pieces you saw and also things that you have filled in.”

Because it’s so unreliable, Wells said eyewitness accounts are problematic to use in trial. That problem is exacerbated in the grand jury process, when only one set of attorneys is present.

But others, such as Frank Bowman, a law professor at the University of Missouri, disagree.

“What else are you going to do?” Bowman said of eyewitness testimony. “What’s the alternative?”

Filling in the gaps

While the differences in stories are striking, Wells said the witness testimonies given in Wilson’s case are very typical.

“In fact, eyewitness experts would be quite suspicious if those did not vary a lot from one another, because that’s what you always find,” said Wells, who has been studying eyewitness testimony for 40 years.

The issue isn’t that people are lying, he explained. When they become an eyewitness, they’re encountering a “totally unexpected event,” and they aren’t taking in all the details.

“They don’t know what’s going to be important. They don’t know if it would be important to spend their time trying to study, ‘Are the guy’s hands in the air? Is he moving forward to surrender?’” Wells said. “They have no script to follow, so once the event is over … they’ve got a lot of gaps … and they start to fill in with suspicions, inferences, deductions.”

 “[Witnesses] don’t know what’s going to be important...They have no script to follow, so once the event is over … they’ve got a lot of gaps … and they start to fill in with suspicions, inferences, deductions.” — Gary Wells, an Iowa State University professor

What is unusual about the testimonies is that they were given in front of the grand jury, Wells said.

Typically, grand jurors would be presented with summary witness statements, given by police officers, or write ups of what witnesses said in interview, instead of having the witnesses giving in-person testimony, Bowman said.

“That’s unusual in a grand jury setting,” he said.

‘More confusing’

Ed Magee, a spokesman for the prosecutor’s office, agreed that the move was unusual.

“It’s usually just a couple of witnesses in grand jury proceedings,” he said, adding that “this case isn’t normal, for sure.”

Magee declined to speak more about the state’s decision to present all the witnesses, other than to say that there were “many witnesses that had much information about the case.”

Joel Schwartz of criminal defense firm Rosenblum, Schwartz, Rogers & Glass in St. Louis, speculated that the state presented so many witnesses “to avoid an appearance of impropriety.” Although, he added, there are those that argued it created an appearance of impropriety because a non-police officer might not have gotten that kind of treatment and would instead be indicted and go to trial.

But to Schwartz, the main issue with the surplus of witnesses was the volume of information.

“It made it much more confusing, which made it much more likely for no true bill,” he said. “Generally [a grand jury] hears only one perspective. This was sort of like a mini-trial, as opposed to a grand jury proceeding.”

A full-blown trial, using the adversarial system with a prosecutor and “competent defense attorney,” does a better job of filtering out the truth than a grand jury system, Wells said.

“You’re just throwing a lot of testimony out there and the jury is not really exposed to the two different theories to help guide them through the case,” he said of the grand jury proceedings.

The transcripts released from the proceedings reveal that the assistant prosecutors, who did the questioning of witnesses, gave jurors little guidance about what to make of eyewitness accounts, in terms of problems with unreliability, and how much weight the statements should carry.

On Aug. 20, the first day the grand jury met, Kathi Alizadeh, an assistant prosecuting attorney, reminded jurors not to form opinions until they had heard all the evidence, but she didn’t say anything about the reliability of eyewitness testimony. While a prosecutor likely wouldn’t make such statements in a jury trial, an eyewitness expert could be called into testify, and a defense attorney would be present to question a witness’ account and present alternative theories.

“A number of people have suggested that Wilson was not really challenged on his account. At a trial, he would be strongly challenged,” Wells said. “That’s the process in the American legal system. That’s believed to be the way in which you get the truth.”

At a later date, Alizadeh did allude to issues with memories during Wilson’s testimony, asking him if he remembered additional details about what happened later, or if there were details he may have imagined in the days after the incident. Wilson replied that “you tend to remember more through a couple sleep cycles then what you do as soon as it happens,” according to the transcript.

Wells disagrees with that theory, noting it’s important to get as much information down right away, before people start to fill in those memory gaps.

At other times, Alizadeh pointed out inconsistencies between eyewitness testimony and forensic evidence. When one witness recounted Brown’s falling in a different place than that listed in the police report, the witness initially insisted she was right.

“I was there,” she said.

“I know you were there,” Alizadeh replied. “But people remember things differently or they see things from a different perspective, distances are hard to judge.”

The witness eventually concluded she was wrong about the location, and Alizadeh and the grand jury went back to the typical line of questioning of details about the witness’ account: the type of cars she saw in the parking lot, if Brown tried to tackle Wilson, if she saw Brown stop running and turn toward Wilson.

Questioning of other witnesses followed a similar pattern of trying to clarify details in the witness’ story. Wells said this plethora of detail and stories can add up to information overload.

“A grand jury has no good ability to process that wealth of information that’s just kind of thrown at them in something of a haphazard fashion,” he said.

“How are you ever going to prove a case against anyone, that doesn’t happen to involve conclusive evidence like DNA evidence? Yes, human beings can be unreliable witnesses. Of course they can …. but they’re all we’ve got. — Frank Bowman, a law professor at the University of Missouri

‘All we’ve got’

Bowman, however, questioned if more attorneys and more questions help paint a clearer pictures of what happened for jurors.

“Certainly, the absence of an adversarial process is going to have probably left some nuances of this testimony unexplored,” he said.

“On the other hand, does it make it harder or easier for the jury to try to make sense of it?” he added, going on to question if adding another lawyer that is challenging witnesses from a different perspective would make it easier to harmonize different accounts of an event, or just more challenging.

Bowman conceded that eyewitness testimony, in general, is not reliable, but he defended its role in the justice system.

“How are you ever going to prove a case against anyone, that doesn’t happen to involve conclusive evidence like DNA evidence?” he asked. “Yes, human beings can be unreliable witnesses. Of course they can …. but they’re all we’ve got.

“If you want to know what happened at some event in the past, unless you have a video camera on it, you have to ask someone who was there,” he added.

Cameras are exactly what many people are calling for in light of this incident, and President Barack Obama even requested $263 million in funding for police body cameras last week.

Wells said cameras are a step in the right direction. He also said that police need to improve tactics in witness interviewing, including isolating witnesses and interviewing them immediately so their recollections aren’t tainted by media accounts or other witnesses. He also thinks police should video record all interviews.

With everyone’s eyes on Ferguson, Wells said it could further the conversation about unreliability of eyewitnesses.

“There’s already quite a bit of attention being paid, at some levels, to the problems with relying on eyewitnesses and the strong need for recognizing that eyewitness accounts can be mistaken and we need to rely somewhat more on corroborating evidence,” he said. “But this certainly will contribute to that dialogue.”