Bill of Rights in Action

Advances in science and technology are invading the courtroom and even solving past mysteries. This edition of Bill of Rights in Action takes a look at several issues—past and present—involving forensic evidence.

World History: The Riddle of the Romanovs

U.S. Government: DNA, Lie Detector, and Voiceprint Evidence

U.S. Government: How Reliable Are Eyewitnesses? 
 
 

By the summer of 1918, Russia had erupted in civil war. On one side were the communist revolutionaries, called the Reds or Bolsheviks, who favored redistribution of wealth and worker control of government. They held the major cities, but in the countryside White armies were on the move. These forces opposed the revolutionary government, some favoring democracy and some the restoration of the monarch.

In the middle of this bloody conflict stood the fate of the last tsar of Russia, Nicholas II, and his family. Two years earlier, Nicholas had been forced from the throne by a provisional democratic government. In 1917, the democratic government too had lost power, this time to the Bolshevik revolutionaries led by Vladimir Lenin. The Bolsheviks hated the old rulers of Russia, especially the Romanovs, the family that had ruled for 300 years. As tsar, Nicholas was the head of the Romanov family, made up of dozens of nobles and aristocrats who owned much of Russia's land and wealth.

By spring 1918, intending to place the tsar on trial, the Bolsheviks had moved Nicholas to the town of Ekaterinburg on the slopes of the Ural Mountains. With him were his wife, the Tsarina Alexandra; four young daughters, the Grand Duchesses Olga, Tatiana, Marie and Anastasia; and the tsar's son and heir, 13-year-old, Alexei. 

To imprison the royal family, the Bolsheviks took over the two-story mansion owned by a rich engineer named Ipatiev. For security and to protect against the prying eyes of the townspeople, they built a tall wooden fence around the place and started calling it "The House of Special Purpose." 

The royal family stayed on the top floor with their physician, Dr. Botkin, and three servants. Their guards also occupied rooms in the house. Cut off from the outside world and confined to their rooms except for meals and brief periods of exercise, the family prayed for release.  They hoped the Bolsheviks would exile them to some foreign country or that the White armies fighting in the area would take over the town and free them. 

Unknown to the royal family, rather than a promise of salvation, the fall of the city would seal their doom.  Fearing that the White army would free the tsar, the local Bolshevik command, with Lenin's approval, had decided to kill the tsar and his entire family.

In the early morning hours of July 17, 1918, they acted. After 78 days in the House of Special Purpose, something terrible happened to the royal family.

The First Investigation

For political reasons, the Bolshevik government in Moscow decided to keep the fate of the family secret.  It admitted that the tsar had been executed for crimes against the Russian people, but claimed that the rest of the family had been removed to safety.  Many people, including relatives of the royal family, believed these reports and held out hope that the tsarina and her five children were alive. 

On July 25, the White army entered Ekaterinburg and officers rushed to the Ipatiev house.  It was all but empty, only rubbish and odds and ends of the family's possessions littered the floors.  The Whites began an immediate inquiry, soon appointing a seasoned investigator Nikolai Solokov to lead it.

Solokov had only five months to complete the investigation before Ekaterinburg again fell to the Bolsheviks.  He interviewed townspeople, collected physical evidence, and took statements from Bolshevik prisoners. Eventually, he had to flee Russia when the White armies were defeated and the Bolsheviks gained control of the entire country. He published the findings of the investigation in 1924.

According to Solokov, the tsar, his wife, their five children, the doctor, and three servants all died in the early morning hours of July 17. The commander of the Ipatiev house had ordered them down to a small basement room, supposedly for their safety. Suddenly, a squad of executioners appeared at the door. The commander read a brief execution order and everybody started firing pistols into the helpless victims.  The tsar fell first with a bullet to the face.  After 20 minutes, the bloodshed ended and the 11 bodies were loaded on a truck and taken to the dense Koptyaki Forest some 12 miles from the city. There, according to Solokov's evidence, they were doused with acid to conceal their identity, burned, and thrown down an abandoned mine shaft.

But Solokov never found the bodies. The communist government in Russia, now the Soviet Union, kept the fate of the Romanov family a well-guarded state secret, only admitting their deaths in 1926.  Not trusting the communists, many people, including living members of the Romanovs, held out hope that at least some members of the royal family survived.

The Case of Anna Anderson

Soon after the civil war ended in Russia, a number of people came forward in Europe claiming to be members of Tsar Nicholas's immediate family. Most of the pretenders to the Romanov legacy were quickly exposed as frauds. But not all. 

In 1920, an unknown woman tried to commit suicide by jumping off a bridge into a canal in Berlin, Germany.  Rescued, she was rushed to a clinic in a dazed and confused state. At first, she had a complete loss of memory, but slowly she began to recover.  One day, she saw a picture of the tsar's family and became quite excited.  Soon she was claiming to be one of the grand duchesses. Rumors spread that a member of the tsar's immediate family had survived.

Claiming that her memory had recovered, the unknown woman told a remarkable story of how she, as Anastasia, had survived the slaughter. According to the story, Anastasia had been saved from a fatal wound because one of her sisters shielded her from the bullets. Though seriously wounded, she awoke under starry skies. A soldier named Tchaikovsky saved her and smuggled her into Romania. There she bore him a son, but Tchaikovsky was soon killed. That is when she fled to Berlin to try to find Romanov relatives. Unsuccessful in her attempt, she became desperate and depressed and decided to kill herself.

What convinced many people of the unknown woman's claim was her ability to provide details about the Romanov family's life in pre-revolutionary Russia. She also bore a strong physical resemblance to the young duchess and had scars on her body consistent with pistol and bayonet wounds. So convincing was the unknown woman that even several relatives of the Romanovs supported her claims.

Most did not. They viewed the woman as a clever imposter, too common to be of Romanov blood and breeding. They also noted that the woman could not, or would not, speak Russian.  Frustrated by the family's refusal to recognize her, and now calling herself Anna Anderson, the woman filed a series of lawsuits in German courts for formal recognition. Relatives of the dead Tsarina Alexandra opposed her claim.

Lacking dental or fingerprint records of Anastasia, investigators on both sides of the issue resorted to other methods to prove their case. For Anderson's side, experts analyzed photos of the Anastasia and Anderson and claimed great similarity. Handwriting experts also argued that their penmanship was the same.  Investigators for those who opposed Anderson came up with their own theory about the woman's identity.  They claimed that she was a Polish woman named Franzisca Schanzkowska who had disappeared from a Berlin boarding house shortly before the unknown woman was pulled from the canal.  Photos of the woman did look like Anderson and the investigators claimed Schanzkowska had many wounds suffered as a result of an explosion in a munitions factory.

The lawsuits dragged on for nearly 30 years ending only in 1970.   At that point, the German court ruled that Anderson had failed to prove that she was Anastasia.  Frustrated by her many years of court battles, Anderson moved to the United States where she died in 1984.

Secrets From the Forest

In 1989 startling news came from the Soviet Union. It was a time of great change.  President Mikhail Gorbachev promoted a greater openness in Soviet society and peaceful relations with the West. On April 12, headlines announced that the bones of the Romanov royal family had been found in a mass grave in the Koptyaki Forest. In fact, they had been discovered by amateur historians led by Alexander Avdonin and Geli Ryabov in 1979. Fearing how the Soviet government might react, the finders hid the information until things changed.

In 1991, Soviet authorities opened the shallow grave. They discovered the tangled skeletons of nine people along with sections of rope and broken sulfuric acid pots. A team of Soviet scientists immediately began to try to identify the remains. Based on studies of the skeletons, they were able to determine the gender and age and found them consistent with those of the royal family, the doctor and the servants. All of the skeletons showed evidence of massive traumatic injuries and gun shot wounds. The dental work of some was the type used near the turn of the century and of the highest quality, affordable only by the richest of people. Scientists made careful skull measurements and compared them to life photos of Romanov family members. They superimposed pictures of the skulls on similar photos and found a match.  They noted evidence of old fractures or injuries to the bones and compared them to known medical conditions of family members. The scientists concluded that occupants of the lonely grave in the forest were the tsar and the others from the Ipatiev massacre. Only one thing did not match.  The scientists could reconstruct only nine skeletons. There should have been 11. They concluded that Alexei and one of the grand duchesses, probably Marie, were missing.

To help confirm the findings, the Soviets asked several American forensic scientists, including Dr. William Maples of the University of Florida, to conduct an independent study.  His team reached similar conclusions to the Soviets, but believed that the missing bodies were those of Alexei and Anastasia, not Marie.

Meanwhile, other Soviet citizens, including writer Edvard Radinsky, had searched Soviet archives to find more clues about the fate of the tsar's family. Through careful research and detective work, they added new details to the story of the tragedy of Ipatiev house. For example, killing the royal family in the cellar had been no easy matter. The young girls, and perhaps even Alexei, had sewn precious jewels—diamonds, rubies and the like—into their clothes to hide them from the Bolsheviks. Like bullet-proof vests, this jewel-encrusted clothing had protected them from the bullets. The executioners had to use bayonets to finally kill them.  Also, in disposing of the bodies, several accounts suggested that two of them had been burned and buried separately from the others.

Still questions remained. In 1992, the Soviets decided to conduct DNA testing on the remains. This process uses comparisons between sequences of genetic material to match samples of human tissue with living people or deceased relatives. DNA can be found in bone, blood, hair, and even saliva. Using blood samples donated by Prince Philip of England, the grandnephew of Tsarina Alexandra, Dr. Gill of the British Home Office Forensic Science Service conducted the tests.  The testing confirmed that five bodies, a father, a mother, and three daughters were all part of the same family. It also proved that the mother was Alexandra. The results were confirmed by two other laboratories.  Scientists ran another test comparing Tsar Nicholas's DNA with that of his dead brother Grand Duke George, whose body had been exhumed for a tissue sample. The test showed they were from the same family.

These tests left little scientific doubt about the identity of the remains found in the mass grave. But what about the missing skeletons?  Believers of Anna Anderson found support for their theories when Dr. Maples claimed that Anastasia's was one of the missing bodies. Two of Anderson's supporters, the granddaughter of the doctor who died with the Romanovs and her husband, Marina and Richard Schweitzer, asked Dr. Gill to make tests to compare Anna's DNA and that of the Romanov bones. Though Anderson had died and been cremated in 1984, a lab sample of her tissue was located. A living relative of the missing Polish woman Schanzkowska, who the Romanovs claimed was Anderson, also provided a blood sample for testing. Now Dr. Gill could test Anderson's DNA against both.

The test results shocked those who believed in Anderson's story. They showed that she was not related to the Romanovs, but was related to Schanskowska. Other labs confirmed the results showing that Anna Anderson had, by false belief or fraud, been an imposter all along.  Some supporters rejected the tests and continue to believe in her claims.

While most of the mysteries about death of the Romanov's now seem resolved through the use of DNA testing, a few remain.  What really happened to the bodies of the missing Romanov children?  Some believe they were burned and buried somewhere in the Koptyaki Forest and someday may be found.  Others suggest that they demonstrate that one or more of the children may have survived. 

If anyone does surface claiming to be the last of the Romanov children, DNA testing should quickly settle the matter.

For Further Reading

King, Greg, The Last Empress, New York: Buch Lane Press, 1994.
Massie, Robert K., The Romanovs, New York: Random House, 1995.
Radnsky, The Last Tsar, New York: Doubles Day, 1992.

For Discussion and Writing

1. Why did the Bolsheviks want to eliminate the entire Romanov
    royal family?  Why did they want to cover up what they did?

2. Why at this time might it be important to find out about the
    fate of the Romanov royal family?

3. Why might some people reject the findings of DNA testing?
 

ACTIVITY: Answering Historical Mysteries

In investigating crimes, police often rely on forensic experts—criminalists, technicians, ballistic experts, medical examiners. After any serious crime, the scene is combed for fingerprints, bullets, fibers, and other physical evidence that can be taken to a lab and analyzed. Blood, hair, skin, or semen can be turned into a DNA fingerprint, which can be compared to DNA samples taken from suspects. Even a criminal's voice, if captured on tape, can be turned into a voiceprint and analyzed to see if it matches a suspect's voiceprint. Police can even ask (but not force) witnesses, or a suspect, to take a lie detector test. 

Scientific Evidence in the Courtroom 

In 1923, a federal appeals court in Frye v. United States handed down a landmark ruling on the use of scientific evidence in the courtroom. The trial court in Frye had refused to allow testimony from an expert saying that the defendant had passed a blood pressure lie detection test—a forerunner of the modern lie detector test. The appeals court upheld the trial court's ruling. It stated that, to prevent experts from misleading juries, forensic witnesses could only present evidence based on scientific techniques "sufficiently established to have gained general acceptance in the particular field in which it belongs." The court found the lie detector did not pass this "general acceptance" test. A vast majority of other courts in the country adopted this "general acceptance" test for scientific evidence. Using this test, courts have excluded most controversial scientific evidence. 

Some commentators, however, felt the Frye test went too far. They believed that modern juries would not be fooled by questionable scientific evidence because the opposition could cross-examine, place other experts on the stand, and ask for the judge to instruct the jury to discredit testimony it finds unconvincing. They argued that juries are already allowed to evaluate conflicting testimony from doctors, engineers, and accountants. 

In 1974, Congress passed the Federal Rules of Evidence. These rules seemed to allow all evidence, including scientific, as long as it was relevant to the case. But most courts still clung to the Frye test for scientific evidence. 

In 1993, the U.S. Supreme court in Daubert v. Merrell Dow Pharmaceuticals, Inc. overruled the 70-year-old Frye test saying it didn't conform to the Federal Rules of Evidence. But the court stated:

 That the Frye test was displaced...does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence. Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. 

The court in Daubert pointed to a number of factors that might indicate the scientific evidence was reliable. Among them were whether the scientific technique can be tested, its known rate of error, whether standards exist to control its operation, its general acceptance in the field, and the possibility the evidence would overwhelm, confuse, or mislead the jury. The general acceptance test became just one of several factors. 

Since Daubert merely interpreted the Federal Rules, the case only applied to federal courts. Most criminal trials take place in state courts, which are governed by state evidence codes. Many state legislatures have left the decision over admissibility of scientific evidence to the courts. Some have adopted codes resembling the Federal Rules. Several legislatures have enacted laws banning specific controversial techniques, such as lie detector tests, from being presented in evidence. In short, many state courts still follow the Frye test, others follow Daubert, and others follow legislative bans on specific evidence. 

Lie Detectors 

The lie detector, or polygraph, is based on the idea that, when people lie, their body reacts in ways that they cannot control. The polygraph machine continuously measures changes in blood pressure and in rates of breathing, pulse, and perspiration. A needle records the responses on graph paper. During a test, the examiner asks the subject a series of yes-no questions. One question must be an anxiety-provoking question that the subject must lie about. The examiner compares the response to this question to the other responses and interprets whether the subject is lying or telling the truth. 

For years, government agencies have used lie detector tests to screen possible security risks. Law enforcement considers them a useful investigative tool. But Congress banned their use in private industry in 1988. 

Critics of polygraph tests say they don't work. Defense attorney William G. Hundley watched as his client, implicated in the Koreagate scandal of the 1970s, took a lie detector test. "The needle never moved," said Hundley. Yet his client later confessed that he had lied throughout the test. Hundley concluded: "I don't think there's any medical or scientific evidence which ever tends to establish that your blood pressure elevates, that you perspire more freely or that your pulse quickens when you tell a lie." 

Polygraph examiners admit that the test can be beaten. One has even estimated that 50 percent of the population could, through intensive training, learn how to beat the test. Paul Minor, former chief FBI polygraph expert, said: "Can the machine be defeated? Yes, but not easily. When the poly is beaten, it's usually by training or by fluke." 

Some polygraph experts estimate that lie detector tests are accurate in 95 percent of all cases. But this figure is disputed and some estimate the range of accuracy as anywhere from 70 to 90 percent. 

Support for polygraph testing seems to be growing in the scientific community. A 1982 study of psychophysiologists, scientists who study interrelationships of mind and body, found that 60 percent believed lie detector testing "was a useful tool when considered with other evidence for assessing truth or deception." A second poll taken in 1992 showed that 80 percent of "those psychophysiologists who considered themselves well-informed of the literature believed that the modern polygraph technique was useful when considered with other evidence." 

One problem is a lack of standard training and qualifications for polygraph examiners. Only 30 states have set up licensing boards, and no national licensing board exists. 

Following the Frye case in 1923, almost all courts—state and federal—refused to admit polygraph evidence. A few courts allowed polygraph evidence if prosecution and defense agreed in advance of the test. But at least one state legislature enacted a law banning courts from admitting even agreed-upon polygraph evidence. After Daubert, several federal appeals courts began allowing polygraph evidence in certain situations. 

Voiceprints 

Another controversial technique is the voiceprint, or sound spectrography. It is based on the idea that each individual's voice is unique. According to the theory, this is caused by the unique shape of each person's mouth, throat, and voice box and a person's unique way of moving the muscles to speak. 

Sound spectrography was developed during World War II to identify enemy radio operators. The modern spectrograph, used to make voiceprints, came out of the Bell Labs in the 1960s. 

The spectrograph has a revolving cylinder with paper attached to it. As the cylinder revolves, a needle moves across the paper according to the recorded voice's frequency, time, and intensity. The resulting squiggles form a voiceprint, or spectrogram. An examiner can compare voiceprints to determine whether they come from the same speaker. 

Comparing voiceprints is different from comparing fingerprints. Everyone's fingerprints remain the same. If Joe makes five prints of his right thumb, they will all be the same. But if Joe makes five voiceprints of him saying, "Put $100,000 in unmarked bills in a brown paper bag," each voiceprint will be different. But, according to the theory, they will resemble each other more than someone else's voiceprint saying the same words. 

In 1972, Oscar Tosi of Michigan State University conducted 34,000 tests of voiceprints using 250 male students and about 30 examiners. The examiners, who had only undergone a brief one-month training, were given 15 minutes to interpret each test. Tosi found that false identifications occurred in only about 6 percent of the tests. 

In 1976, however, a committee of the National Academy of Sciences concluded that "technical uncertainties concerning the present practice of voice identification are so great as to require that forensic applications be approached with great care and caution." Ten years later, the FBI published a report, which several scientists criticized as deeply flawed. It announced that an extensive examination of 696 FBI voiceprint cases covering 15 years revealed just one false identification and two false eliminations. The report also stated that voiceprints had "yet to find approval among most scientists...as a positive test in comparing voice samples." 

In 1992, a committee of the International Association of Identification set certification requirements for voiceprint examiners and set standards for conducting voiceprint comparisons. 

A majority of courts today admit voiceprint evidence. Most of these courts cite the Tosi study as showing the reliability of voiceprints (and ignore the report from the National Academy of Sciences committee). Courts that still apply the Frye test are less likely to admit it. 

DNA Fingerprints 

One of the newest techniques in forensic science is DNA fingerprinting. DNA (deoxyribonucleic acid) is the genetic code that determines a person's physical characteristics. Each human cell holds the complete genetic blueprint for an individual. No two people, except for identical twins, have identical DNA. 

Under an electron microscope, the DNA molecule looks like two ladders spiraling around each other. The "rungs" of these ladders are made of pairs of molecules called "bases"—the essential ingredients of DNA. There are about 3 billion base pairs in one person's DNA. Of those 3 billion base pairs, 99.9 percent are identical in every human. The differences occur in the remaining .1 percent. This sounds small but this is still 3 million base pairs. 

Someday, scientists will be able to make a complete map of a person's DNA from a bit of blood, saliva, semen, skin, fingernail, or hair. But DNA fingerprinting does not, at this stage, make a genetic map of all 3 million base pairs. Instead, DNA fingerprinting charts a few selected areas of DNA. 

The process involves recovering a small amount of body tissue or fluid, separating the DNA chemically, cutting and sorting it electrically and chemically, transferring it onto a nylon sheet, and adding radioactive probes into selected areas of the DNA. This produces the DNA fingerprint, which looks like a bar code. 

The DNA fingerprint from a suspect can be compared to DNA found at the crime scene. If they don't match, then the suspect is cleared. In the last few years, DNA fingerprints have played a major role in clearing innocent suspects and freeing wrongly convicted prisoners. 

If the suspect's and crime scene's DNA do match, this does not necessarily mean the DNA at the crime scene belongs to the suspect. Since the print charts only a few sections of DNA, conceivably other people could share the same DNA print. 

Scientists calculate the probabilities. They do this by consulting databases of DNA patterns. They look to see how often each particular pattern, or band, in the bar code occurs in the general population or in the ethnic group of the suspect. Let's say the bar code consists of just five bands and the scientists find that each of the bands occurs in the population as follows: 

Band #1—10 percent (or 1/10)
Band #2—5 percent (or 1/20)
Band #3—20 percent (or 1/5)
Band #4—25 percent (or 1/4)
Band #5—2 percent (or 1/50) 

By multiplying the odds of having each band, scientists calculate the odds of having all of them. In this case, the odds of a person sharing the same DNA pattern for all five bands would be 1 in 200,000 (10 X 20 X 5 X 4 X 50 = 200,000). 

Some critics believe DNA experts often overestimate the odds of having matching DNA fingerprints. They point out that people of the same ethnic group share more DNA and would be more likely to match DNA than people outside these groups. DNA proponents respond that the FBI now keeps separate DNA databases for whites, Hispanics, Asians, and blacks. But critics contend these groupings are too large. In 1992, a National Academy of Sciences report agreed and recommended a temporary ceiling on odds for DNA matches. In 1996, however, a follow-up report found that the databases, combined with new formulas, gave accurate and powerful odds and lifted the ceiling. 

Critics also complain of contamination. Proponents agree that contamination can be a problem if people collecting and storing DNA evidence do not follow proper procedures. But they point out that contaminated DNA will lead to false exclusions—not false matches. 

Finally, critics cite poor lab procedures. In one study in 1987–88, of 50 samples sent to the three major private DNA labs, two labs made mistakes on one sample. The 1992 National Academy of Sciences report suggested sending separate samples for testing to ensure quality control, but the report concluded that lab procedures were "fundamentally sound." 

The overwhelming majority of court cases have allowed the introduction of DNA evidence. Some state legislatures have specifically written laws permitting it. 

For Discussion and Writing 

1. What problems do new types of scientific evidence pose for a court? 

2. What is the difference between the Frye and Daubert tests?
    Which test do you think is better? Why? 

3. Between polygraph, voiceprint, and DNA evidence, which do you
    think is most reliable? Most unreliable? Why? 
 

ACTIVITY: Should It Be Admitted Into Evidence? 

Form small groups. Each group should (a) review the section on scientific evidence and decide what standard you believe is proper for admitting scientific evidence into court, (b) discuss and decide whether the evidence should be admitted or not, and prepare to report your decision and reasons to the class. In all cases, assume that proper procedures have been followed with the evidence and that the expert is well-qualified in the field. 

Cases 

In each of the following cases, the trial judge refused to admit the evidence and the party trying to introduce the evidence has appealed. 

#1. The prosecution wanted to introduce voiceprint evidence that identified the defendant as making a telephoned bomb threat. 

#2. The defense wanted to call a polygraph expert to the stand who would testify that the defendant was telling the truth when he denied committing the murder. 

#3. The prosecution tried to call a DNA expert who would testify that the blood found on a broken window belonged to the defendant. The judge refused to admit the evidence citing a state law prohibiting all DNA evidence at trial.

Robert Leaster was talking with friends on a Boston street corner when two policemen jumped out of a patrol car with guns drawn. The officers handcuffed the 21-year-old Leaster, charged him with the murder of a neighborhood storekeeper, and drove him directly to Boston City Hospital. Leaving the dismayed suspect in the back of their squad car, the two officers disappeared, only to re-emerge with a sobbing woman on their arms. She peered through the window at the handcuffed prisoner and told the officers that Leaster looked like the man who shot and killed her husband. Six months later, Leaster was convicted of murder and sentenced to life without parole.

In a San Diego courtroom, a distraught young woman described her hour of terror at the hands of a rapist. The victim pointed directly at defendant Frederick Daye and stated that he was the offender. "There is no doubt in my mind," she insisted. A second eyewitness testified that he saw Daye push the woman into a car and drive away. The San Diego barber was convicted of rape and sent to prison.

Both men were wrongfully accused by eyewitnesses who were certain they had correctly identified the defendant as the offender. Both men were later cleared of the charges against them and released from prison after serving 16 and 10 years respectively. Their cases serve as vivid proof that eyewitnesses can make horrible mistakes.

The Role of Eyewitness Testimony

Eyewitness testimony occupies a prominent place in the criminal justice system.  According to a 1988 survey of court prosecutors, an estimated 77,000 suspects are arrested each year based on eyewitness testimony. Beyond providing a strong basis for arrest, eyewitness testimony has great impact in the courtroom. 

"It's the most theatrical moment of the trial," says UCLA law professor John Wiley Jr. "Everybody in the jury box looks at the witness, looks at the [eyewitness's] finger and follows the line right to the defendant."

To determine what role eyewitness testimony played in the courtroom, psychologist and memory expert Elizabeth Lofthus conducted an experiment in which subjects served as jurors in a mock trial. First, all jurors heard the same description of the crime, a hypothetical robbery and murder. In one version of the trial, the prosecutor presented only circumstantial evidence. Only 18 percent of the jurors found the defendant guilty. In the second version of the trial the prosecutor presented the same evidence with one addition—an eyewitness. Seventy-two percent of the jurors found the defendant guilty. This led Lofthus to conclude that jurors place enormous value on eyewitness testimony. 

Studies have shown that mistaken eyewitness testimony accounts for about half of all wrongful convictions. Researchers at Ohio State University examined hundreds of wrongful convictions and determined that roughly 52 percent of the errors resulted from eyewitness mistakes. Legal scholar Edwin Borchard studied 65 cases of "erroneous criminal convictions of innocent people." Mistaken eyewitness identification was responsible for approximately 45 percent of Borchard's case studies.

There is no way of telling how many innocent people go to jail due to mistaken eyewitnesses. Most juries arrive at a conviction only after hearing a broad spectrum of evidence against the defendant. Eyewitness testimony is usually only a part of that broad spectrum. San Diego criminologist Ebbe Ebbesen maintains that police and prosecutors "weed out" most unreliable witnesses while others disqualify themselves by expressing doubt about their own perceptions. These factors help prevent convictions of innocent defendants from mistaken eyewitnesses. 

The Brain Is Not a VCR

Eyewitness testimony is powerful because most people believe that the human mind is able to record and store every detail of the events we experience. They believe that these permanently recorded memories, thoughts, and impressions can be retrieved, even from realms of the forgotten and the subconscious. In fact, says psychologist Lofthus, "human memory is far from perfect or permanent and forgetfulness is a fact of life."

Most scientists agree that memories are formed when neurons form connections between brain cells. According to James McClelland, a Pittsburgh brain researcher, "Each neuron represents a little bit of memory," just like a computer holds information in bytes of electronic coding. These bits of information are channeled from the eyes, ears, and other senses to various parts of the brain. Here, the connected neurons are stored in cerebral compartments that can hold as much as 1 quintillion separate memory bits.

These storage compartments are constantly being rearranged by a part of the brain called the limbic system. Like a neurological file clerk, the limbic system tries to "make sense" out of our memories by adding new data and tossing out old or confusing information. As Lofthus describes this process, "Every time we recall an event, we must reconstruct the memory and with each recollection the memory may be changed...Thus our representation of the past takes on a living, shifting reality."

Our brains may hold on to certain peak memories. But between the peaks, our brains fill in the gaps. Dr. Marcel Mesulam, professor of neurology and psychiatry at Northwestern University observes that "your brain may be re-creating something very vivid. But that doesn't prove that what was being re-created was true." 

This neural recollection process takes on particular significance when eyewitnesses to crimes are asked to recall their experience for police investigators, lawyers, or a judge and jury. Most witnesses want to help. Both investigators and witnesses want to see justice served. No one wants to held responsible for the wrongful conviction of an innocent person. In short, most witnesses and criminal investigators have the same goals. In most cases, these common goals can create an effective collaboration to identify a suspect. But these same goals, combined with the fallibility of memory, can create an margin for error in the identification of a suspect.

Psychologist G.H. Wells, an expert in methods used to secure eyewitness testimony, describes the process this way: "The investigator's knowledge of which person...is the suspect creates a dynamic situation in which the investigator can influence the eyewitness to choose the suspect." For example, if the eyewitness makes a tentative choice, the investigator can create a false sense of confidence by confirming the choice. "The eyewitness then becomes convinced that the identification was correct," contends Wells, "and a false certainty begins to take hold."

Elizabeth Lofthus explains the development of false certainty by claiming that "the more people think about an event from the past, the more confident they become in their memories. The problem is that they get more confident in their inaccurate memories as well as their accurate ones."

Creating a Margin for Error

Regardless of the possibility for error, eyewitness testimony can be extremely helpful in determining innocence or guilt in criminal cases. Despite assertions that traumatic events can destroy memory, psychologists Ofshe and Watters from the University of California point to a study done of children who witnessed the murder of a parent. "Many distorted the memory," they say, "but not one [child] lost it entirely." Sometimes, a victim's eyewitness testimony is the only evidence available.

G.H. Wells, suggests that "[a]lthough...people have faulty beliefs on how memory works and...tend to over-believe eyewitness identifications, this does not mean that they assume that all such identifications are valid."

Wells quotes the U.S. Supreme Court, who, in the 1972 case of Nell v. Biggers, ruled that not all testimony is created equally valid or invalid. In contemporary justice settings, most instructions to the jury include a warning that eyewitness testimony can be subject to error.

Wells goes on to suggest several methods that police and prosecutors, judges, and lawyers can use to "greatly reduce the justice system's role in contributing to false identifications." Wells' methods attempt to limit the influence that the investigator has over the eyewitness. They include:

1. informing the eyewitness that the culprit may not be in
   a photo spread or suspect lineup; 

2. ensuring that all individuals participating in the lineup or
    photo spread resemble one another, so that the
   eyewitness does not choose someone who merely
   stands out; 

3. having photo spreads and lineups conducted by
   someone who does not know who is the suspect; and 

4. stopping reinforcing witnesses' choices by prompting
    (e.g.,  "How about number four?"), challenges (e.g.,
    "Are you sure that's him?"), or congratulations, (e.g.,
    "You're right. That's our suspect.").

Instead of viewing a limited number of faces chosen by criminal investigators, the eyewitness chooses his or her own "rogue's gallery" of suspects from a computerized photo collection. The eyewitness is not forced to choose a single suspect. Instead, the court is notified as to how many faces were viewed by the eyewitness, whether the suspect appeared among the witness's choices, and how many faces were chosen (the fewer the faces, the stronger the evidence). This technique avoids an "all or nothing" attitude on the part of both investigators and eyewitnesses.

Police lineups and other methods of suspect identification are an essential tool of justice. Most inaccuracies in eyewitness testimony are unintentional and many are detected in the courtroom, but the consequences of mistaken identity can be disastrous for the accused. Our justice system is not, and cannot be, perfect. But there is always room for improvement. Advances in technology and in our understanding of how the human mind functions can only help to serve justice in the future.

For Discussion and Writing

1. Why do you think eyewitness testimony is so powerful?

2. What factors might cause eyewitnesses to make mistakes?

3. What kinds of interactions between criminal investigators and
    eyewitnesses might create a margin for error in the identification
    of a suspect?

4. Describe some methods that criminologists have developed to help
    eyewitnesses accurately choose or eliminate suspects. Do you think
    they are effective? Why or why not?
 

ACTIVITY

1. Form small groups of 3-4 students each. Each group should make up a brief skit that the class will witness and describe.

2. When all groups have created and practiced, each group should present its skit to the class as a whole. Each student should write a  brief description of the skit and its participants.

3. Students read their descriptions aloud and compare the results.  
 

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