COMMENTARY: Does the eye lie?

By Jermaine A. Wyrick

In August 1989, Mark MacPhail, a 27-year old Savannah, Georgia police officer, worked as an off-duty private security guard, who intervened to assist a homeless man that was beaten by another man in a park, who consequently fatally shot Officer MacPhail. Troy Davis was arrested and charged with the murder of Officer MacPhail. Law enforcement and the prosecution relied heavily on the witness account of Sylvester "Redd" Coles. The prosecutor did not produce any physical evidence to support the claim that Troy Davis attacked the homeless man nor fatally shot Officer MacPhail. No murder weapon was recovered, nor fingerprints. Later, seven out of nine witnesses submitted affidavits that recanted their trial testimony, in which they admitted their testimony was untruthful and unreliable. Most of the witnesses implicated Troy Davis based upon witness coercion. For example, Dorothy Ferrell, one of the witnesses, stated nine years later in her affidavit that she didn't actually see the shooting. Interestingly, she pointed at Davis, "to tell police what they wanted to hear!" Interestingly, there were witnesses who claimed that Sylvester Coles, the primary prosecution witness, boasted about the fact he was the actual killer. Moreover, three of the jurors regretted their guilty verdict decision, and would have found him not guilty if they had another opportunity to decide. Troy Davis garnered widespread support from dignitaries such as former President Jimmy Carter, Pope Benedict XVI, Desmond Tutu, and nearly 1 million people signed petitions urging the Georgia Board of Pardons and Paroles to grant clemency to Davis. On September 21, 2011, Davis was executed by lethal injection.

The Davis case raises the issue of the extent to which eyewitness testimony should lead to a conviction. Eyewitness testimony is prone to human error. Consequently, in the State v. Henderson case, the New Jersey Supreme Court stated, "We are convinced from scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications." Consequently, the ruling requires judges to give comprehensive and thorough instructions about the potential flaws in eyewitness identifications. According to the Innocence Project, a non-profit organization that uses DNA evidence, statistically, of more than 250 people exonerated by DNA evidence the last 20 years, 75% were erroneously identified by eyewitnesses. Misidentification is widely recognized as the single greatest cause of wrongful convictions in this country. Most misidentifications stem from the fact that human memory is malleable; not malicious.

Since United States v. Wade, 388 U.S. 218 (1967), the United States Supreme Court has recognized the inherently suspect qualities of eyewitness identification evidence. In Manson v. Brathwaite, 432 US 98 (1977), the court held if an identification procedure is shown to be unnecessarily suggestive, the court must consider whether certain independent indicia of reliability are present, and if so, weigh those factors against the corrupting effect of the flawed procedure. The court should determine whether, under the totality of the circumstances, the identification appears too reliable. If not, the identification evidence must be excluded from evidence. In Watkins v. Sowders, 449 U.S. 341 (1980), the court described eyewitness evidence as "notoriously unreliable."

Soon the United States Supreme Court will hear a case that asks whether courts should suppress eyewitness testimony that was influenced by friends and neighbors in the same fashion witnesses are tainted by the police. The outcome of the decision will be momentous if it deters inappropriate police conduct, and assists in the jury's ability to evaluate identification evidence. In the dissent, Justice William J. Brennan Jr stated that eyewitness testimony has, "a powerful impact on juries." Soon the United States Supreme Court will hear a case that asks whether courts should suppress eyewitness testimony that was influenced by friends and neighbors, in the same fashion witnesses that are tainted by the police. The outcome of the decision will be momentous if it deters inappropriate police conduct, and assists in the jury's ability to evaluate identification evidence. Hopefully, neither Officer MacPhail nor Troy Davis died in vain.

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Attorney Jermaine A. Wyrick can be reached at (313) 964-8950, e-Mail: Attyjaw1@Ameritech.net. He is available for speaking engagements on legal topics.

Published: Fri, Dec 23, 2011

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