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.

"Stress has a drastic effect on both the ability to formulate memory and perceive," said Streeto. "A weapon present really eradicates the ability to make an accurate identification. Cross racial identification is difficult for most people. The size of the studies here are really mounting up. A general based consensus is emerging."

Streeto represents DaShawn Revels, who was convicted of shooting and killing Bryan Davila, a 20-year-old New London man, in 2009. A witness saw the shooting from her kitchen window and later identified Revels to police. The witness described the shooter's gender, race, hair, clothing and hat color.

"At no time did [the witness] describe the perpetrator's face or facial features," Hope Seeley of Hartford's Santos & Seeley writes in an amicus brief on behalf of the Innocence Project. "The court should have found that this factor weighed against reliability."

The other case up for oral argument is that of Troy Artis, who was convicted of first-degree assault as an accessory. Defense attorney Lisa Steele, of Bolton, Mass., represents Artis, as well as Nathan Johnson.

Steele said that when the detective prepared the photo array to present to the victim in Artis' case, the officer pointed to one image with the defendant's name on it and said, "This is the guy I'm going to arrest." The trial court agreed that what the officer did was unnecessarily suggestive, but added that the identification was reliable because the witness was 100 percent sure he was identifying the right suspect.

On appeal, however, the Appellate Court ordered a new trial. The panel had concerns with the identification, including that the witness had consumed at least four beers before the alleged assault, that there was insufficient lighting at the location of the altercation, and that the witness and his assailant were face to face for only a few seconds.

The appellate judges also noted that the witness was unable to describe the clothes worn by the assailant; that his testimony regarding the location of the assailant just before the incident was contradicted by other evidence, and that he was under stress at the time of the assault.

Special deputy assistant state's attorney Laurie Feldman argues that the Appellate Court is applying "social science beyond its reliable reach." She hopes the state Supreme Court reinstates the conviction.

The Appellate Court decision "effectively ruled that due process requires trial courts to review reliability through a social science lens," Feldman writes in court documents. "This is precisely the wrong approach to this area, in which findings are controversial and in flux. … This case is a warning against appellate reliance on the shifting sands of social science research to usurp the roles of the trial judge and jury so as to overturn convictions of the guilty."

In the Revels case, the Connecticut Psychological Association submitted its first ever amicus brief.

Steele penned the brief, which was also endorsed by the Connecticut Criminal Defense Lawyers Association. It urges the state's justices to adopt protocols similar to those recommended by the New Jersey Supreme Court in State v. Henderson.

The 2011 New Jersey decision requires judges to more thoroughly scrutinize the police identification procedures and many other variables affecting eyewitness identification. The court noted that this scrutiny will require judges to provide enhanced jury instructions about factors that increase the risk of misidentification.

These factors include whether a suspect line-up was "double blind," meaning that the officer who administers the line-up is unaware who the primary suspect is and the witness is told that the officer doesn't know; whether the police provided the witness with feedback that would cause the witness to believe he selected the correct suspect; whether the witness was under a high level of stress; how much time the witness had to observe the event; what the lighting conditions were; and whether the witness was under the influence of alcohol or drugs.

Steele argues that if the Connecticut Supreme Court is unwilling to go as far as New Jersey's decision in Henderson, the justices should at least inform trial judges to stop considering the certainty demonstrated by a witness in identifying someone.

For now, Connecticut generally follows the 1977 U.S. Supreme Court decision in Manson v. Brathwaite, which weighs the flaws an identification procedure with other indications that the procedure was reliable. The court then determines whether, under the totality of the circumstances, the identification appears to be reliable. If not, the identification evidence must be excluded.

Streeto, who noted his appreciation that the state Supreme Court is addressing these issues, hopes the justices release three separate rulings rather than one for all three cases so trial lawyers are given more-detailed guidance.

"Anything you do is fact-sensitive," he said, "but when you see it play out in three cases, you start to see trends emerge."•

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