The Appeal: Witness Memories Have Always Been Fallible. New York Is Starting To Remind Jurors Of This

Sarah Lustbader and Vaidya Gullapalli
March 28, 2019

Most Americans are familiar with the basics of a trial: opening statements, cross examinations, objections, verdicts. But most don’t know what jury instructions are. Even some who have served on a jury don’t remember the jury instruction. That’s because there is nothing particularly exciting about jury instructions. After both sides have given closing statements, before the jury begins deliberating, the judge instructs jurors on how to evaluate the evidence: what are the elements of each charge, how certain they have to be, what kinds of considerations are acceptable, etcetera. The prosecutor and defense lawyer have spent the trial doing everything they can to get the jury’s attention by telling the most compelling story possible. The judge, while giving instructions, usually reads legalistic words off a page for an hour or more. Sometimes people fall asleep. Perhaps you are already bored simply reading about jury instructions. Maybe you’ve forgotten what they are.

We know memories aren’t perfect, and research continually shows just how unreliable they are. Hugo Münsterberg, who taught at Harvard in one of the first American psychology departments, wrote a book in 1908 called “On the Witness Stand.” In it, he argued that because people could not know when their memories had deceived them, the legal system’s safeguards against lying—oaths, penalties for perjury, and so on—were ineffective. Based on that research, he expected people in all fields to be eager to reform their practices. “The lawyer alone is obdurate,” Münsterberg wrote. [Paul Kix / The New Yorker] Indeed, eyewitness identification is the leading cause of wrongful convictions and yet it is still a cornerstone of the legal system.

Ironically, New York’s highest court has turned to the highly forgettable jury instruction to help remedy misidentification. Last year, it ruled that defendants who are identified by someone of a different race are entitled to a jury instruction explaining that people generally have greater difficulty accurately identifying someone of a different race than their own. That decision sent a conviction back to a lower court in Brooklyn, and this month, after a retrial, an innocent man was finally acquitted. Jurors said it took them five minutes to reach their decision, and afterward waited in the courtroom to hug the defendant and his family.

Otis Boone, who is Black, was arrested when he was 19 and spent seven years in prison, during which he steadfastly insisted on his innocence. Two white people had mistakenly identified him as a person who had robbed them of cell phones at knifepoint in Brooklyn. There was no physical evidence pointing to his guilt, but he was convicted and sentenced to 25 years in prison based on the two eyewitness accounts. At his second trial last month, public defenders presented evidence that Boone was a mile away from one of the robberies five minutes before it occurred. “Boone’s ordeal illustrates a shift in how the state’s criminal justice system handles witness identifications,” writes Ashley Southall for the New York Times. “They were once considered strong evidence of guilt, and they remain a persuasive tool for prosecutors.” [Ashley Southall / New York Times]

“One thing that was encouraging was that during jury selection it seemed like people got it,” Bess Stiffelman of the Legal Aid Society, who represented Boone on his retrial, told The Daily Appeal. “It used to be that identification testimony, pointing to someone and saying ‘That’s the guy who did it!’ was the most powerful evidence people could hear. And I think that people can understand that witnesses can be mistaken, despite confidence.”

Stiffelman was surprised that the Brooklyn DA’s office, which prides itself on having the largest dedicated conviction review unit, and on being “progessive” in general, never seemed to consider the possibility that her client was not guilty. According to the office’s website, the Conviction Review Unit takes a “fresh look at all the evidence,” consulting with experts and using the most up-to-date science to reevaluate the evidence. This includes “social science research on issues like faulty eyewitness identification.” But they fought the case aggressively.

It turned out, if the lead detective on Boone’s case had looked at the file before she administered the lineups, she would have seen notes from interviews with one of the complainants, who said on the night he was robbed that he wouldn’t be able to identify the offender if he saw him again. Five days later, an officer wrote that the complainant said he “couldn’t remember what the person looked like only described him as a tall male black.”

The Daily Appeal asked Stiffelman what changes she would like to see as a result of her client’s acquittal, apart from the jury instruction. “What I would really like to see is that the prosecution and the police department don’t think that just because you have a lineup identification that your case should be closed. The DA’s office and the NYPD never seem to doubt an identification,” she said. “They have to shift their thinking on that. Maybe look in your file to see whether there are reasons why this might be a bad ID. Just look a little bit, just look a little bit closer.”

It’s natural for people to trust their own memories and trust a person who points his finger in the courtroom and shouts, “He did it! I’m 100 percent certain! I’ll never forget that face!” But the power of that kind of statement makes it dangerous. Our legal system has relied on eyewitness testimony for centuries, but that doesn’t mean we should cling to it, regardless of how many innocent lives we destroy. We know better. And hopefully, despite the fallibility of human memory, jurors won’t forget that new jury instruction.