Federal Criminal Practice Seminar Fall 2012
Who You Gonna
Believe, Me Or Their
Lying Eyes?
1
The prevalence of Eyewitness
Misidentifications
Brandon L. Garrett, CONVICTING THE INNOCENT
2
Two Different Problems
3

Unreliable eyewitness identifications tainted
by suggestive pre-trial procedures.

The inherent unreliability of Eyewitness
Identifications (whether by strangers of
acquaintances)
Supreme Court Cases




4
United States v. Wade, 388 U.S. 218 (1967)
Neil v. Biggers, 409 U.S. 188 (1972)
Manson v. Brathwaite, 432 U.S. 98 (1977)
Perry v. New Hampshire, 132 S.Ct. 716 (2012)
Charles Ray Finch
Suggestive Lineups
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Witness Description of Perpetrators
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Scene of Crime
7
First of Three Lineups
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Second of Three Lineups
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Third of Three Lineups
10
Shawn Massey
Witness Misidentification
11
Victim’s Description of
Perpetrator
12
•
5’9” black male
•
about 175 pounds
•
with his hair pulled back from his face and 4-5 small braids on the
back of his head (the non-biological DNA of the case)
•
red shirt with Hurricane signs on the front
•
blue jean shorts
•
silver revolver
The Photographic Line-up shown to
victim
13
The victim: “Looks the most like
him, except no braids”
“She believes that the
person whom she
identified in the lineup is the person who
robbed her, and that
she could be certain if
she saw him in
person.”
Officer T. G. Ledford
14
Our Vision of the Perpetrator’s hairstyle
based on entire record: CORNROWS
15
Another possibility, based solely on the description:
“the rat tail: 4 or five straggly strands of hair falling from”
the back of the head. Wikipedia
16
Prosecutor Assumed Rat Tails
Q:
On the photo line-ups you have there, is it
possible to view the back of any of these
suspects’ head, in that photo lineup?
Direct Examination of T.G. Ledford, CMPD
Q:
Can you see the back of any of those
subjects’ head in the photo lineups?
Direct Examination of J.J. Ojaniit, CMPD
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And a Second Theory at Trial
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Q:
Have you ever known Mr. Massey to wear any kind of artificial
braids that you can attach to the back of the head?
A:
No. And, he wouldn’t be able to because his hair has never
been long. You have to have hair long enough in order to attach
those braids.
Q:
But you are familiar with that practice?
A:
Yes.
Victim’s Trial Testimony:
Cornrows
Prosecutor: Let me direct your attention to those braids, Ms.
Wood. Did the braids go all through his hair or
were they just on the back or just on the sides?
Where were the braids?
Ms. Wood:
19
They went through.
An Unanticipated Discovery:
Victim’s pre-trial Revelation
The morning of trial, when the victim saw Shawn
Massey in the courtroom, she told the prosecutor:
“I don’t know if that’s him or not.”
20
Confirmation: “That’s the way it
was done – straight back braided”
21
Two Recent State Court Cases
•
State v. Henderson, 27 A. 3rd 872 (N.J. 2011)
•
•
22
New Rules Issued July 19, 2012
State v. Guilbert, 306 Conn. 218 (2012)