‘I still see Ronald Cotton’

Unpleasant question (sorry): If a man raped you, and you studied his face while he did it, could you make a correct identification later down at the police station?

Dahlia Lithwick has an important piece in Newsweek on the unreliability of eyewitness testimony — a subject which is being brought to light more and more by DNA exonerations of men previously convicted of rape.

Lithwick recounts the story of Jennifer Thompson:

Jennifer Thompson was 22 the night she was raped in 1984. Throughout the ordeal, she scrupulously studied her attacker, determined to memorize every detail of his face and voice so that, if she survived, she could help the police catch him. Thompson soon identified Ronald Cotton in a photo lineup. When she—after some hesitation—again picked Cotton out of a physical lineup a few days later, a detective told her she’d picked the same person in the photo lineup.

But in this case Thompson got it wrong, although Cotton served 10 years before DNA evidence exonerated him and decisively implicated another man, Bobby Poole. The curious part of the story is that despite Thompson’s determination to memorize every detail, when she first saw Poole in court she was certain she had never seen him before. Indeed, according to Wells and Quinlivan, “even after DNA had exonerated Cotton and Thompson herself had accepted the fact that Poole was her attacker, she had no memory of Poole’s face and, when thinking back to the attack, she says, ‘I still see Ronald Cotton’.”

There could hardly be a starker example of how our memories play tricks on us. It’s easy to think of your memory as essentially a security-camera tape. You don’t have all the tape saved, but what you remember tends to seem solid and objective. Until, that is, you find out the special-effects guys have gone in and switched out one person for another, or one place for another, or fabricated an entire scene that didn’t happen.

Ms. Thompson almost certainly didn’t want to (and had no idea she was going to) finger the wrong man. But her mind played a few tricks on her, most likely. She, first of all, wanted to reestablish order in her life, and might not have been able to handle the idea that the real rapist didn’t happen to be in the police lineup. Second, she might have received unconscious cues and feedback from police officers who had their suspect and wanted her to confirm it. Third, once she thought she knew who did it, her memory wrote that information into the scene and burned it into the “video.” Hence, after so many years and so much new information, “I still see Ronald Cotton.”

And Ms. Thompson only experienced a few of the ways our memories can get scrambled. False confessions can mess up eyewitness testimony; as in, if someone falsely confesses, you’ll write them into the crime, even if they’re innocent (it sounds odd, but about a quarter of convictions overturned by DNA involve false confessions). Confusion can also mess up eyewitness testimony, as was demonstrated in an experiment involving soldiers undergoing mock interrogations (they misidentified their interrogator, identifying instead a man in a picture their interrogator was holding).

And not only are we bad at giving eye-witness testimony, we’re bad at determining when someone else might be misremembering (after all, how could we really know); which wouldn’t be such a huge problem, if we didn’t have such a strong bias to believe eyewitness testimony. Our brains basically tell us, as a default, to believe what people say; if they say they saw it, they saw it.

The question, then, is knowing that eyewitness testimony is unreliable, what does the legal system do about it? Not every case has semen lying around (as we learned in Superbad). Eyewitness testimony is essential to locking up a lot of criminals.

Proposals Lithwick mentions include: 1) showing victims photos sequentially and explaining that the perpetrator may not be included in the lineup, and 2) making sure that whoever conducts the lineup doesn’t know which person is the actual suspect. It’s also important to allow scientific evidence about the unreliability of eyewitness testimony into court — it’s already allowed in some of the time, but not always.

What I haven’t seen, but would be interested in seeing, is a rundown of when eyewitness testimony is fairly reliable and when it’s not — as in, what kinds of crimes, circumstances, states of mind, etc., lead to decent recall and which lead to terrible recall. I’m guessing there are some broad trends that could be described; they’d certainly help juries sort this stuff out.

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