Eyewitness Identification: 'I Noticed You Paused on Number Three.'
By Bill Nettles, Zoe Sanders Nettles and Gary Wells
The Champion (National Association of Criminal Defense Lawyers),
November 1996
The eyewitness to a crime is the most damaging evidence the government can present in a criminal trial. The impact on the jury of a witness pointing to the defense table and saying "that is the man right there - I will never forget his face" is overwhelming. The prosecutor can often support the veracity of the identification by providing testimony that the witness previously identified the accused in some sort of a photo spread. If the witness is a victim, police officer or some other witness sympathetic to the government, the testimony usually goes something like this: "The officer showed me the lineup and I picked the defendant before the spread hit the table."
The jury is led to believe that the decision by the witness to pick the same person whom the government believes committed the offense is a decision made solely by the eyewitness based upon his or her independent memory of the perpetrator's face. In fact, the decision to pick the suspect is often a product of police procedures that are likely to produce an outcome that is consistent with the expectations of the police. The expectations of the police can be so powerful that the behaviors of those administering the photo spread can supplant the independent memory of the witness.
Many defense lawyers have had eyewitness cases that have seemed puzzling to them in one way or another. In some cases, for instance, the eyewitness stated earlier to police that he or she did not get a look at the perpetrator's face, or didn't think that he or she could identify the perpetrator, or gave a description that was so vague that the eyewitness appeared to have no clear memory at all. Nevertheless, the eyewitness identified the suspect from a photo spread or a lineup and is now quite certain of the identification. How could it happen that, shortly after the crime, the eyewitness seemed to have a poor memory, but, later, the eyewitness identified the defendant confidently? Does memory get better with time? No. Fortunately, research and theory in scientific psychology provides one answer to what is happening in many cases of this type. Psychologists who have studied eyewitness identification argue that the very methods used by the police in conducting a lineup or photo spread can be the source of 1) an eyewitness' decision as to whom to identify and 2) the eyewitness' confidence in his or her identification.
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Who We Are is Who We Were
Keynote address by Alex Sanders presented April 24, 2004, at the 68th Annual Meeting of the University South Caroliniana Society
Thank you for inviting me to be with you on this auspicious occasion. I have long been aware of the invaluable public service rendered to South Carolina by the University South Caroliniana Society. You carry on a great public trust, and you render a priceless service to the future of South Carolina, America, and the world.
I speak to you today on matters historical, the concept of history, and the value of the study of history-if any. As the President of the College of Charleston for almost a decade, I lived and worked at all times immersed in history.
The College was founded 235 years ago by the same men who helped found the United States of America: Rutledge, Heyward, Middleton, Rutledge, Pinckney, and Pinckney-three men who signed the Declaration of Independence and three other men who were authors of the Constitution.
I lived in the house in which John Rutledge last lived. As every South Carolinian knows, he was Chief Justice of the United States when George Washington was President. John Rutledge died in the President's House at the College of Charleston. The tourists came through the President's House every Saturday morning, and sometimes my bed wasn't made up. We told them, "That's the bed John Rutledge died in. We leave it like that in his memory." Yankees will believe anything. They present us with the grand opportunity, in the words of Lincoln, to "fool some of the people all of the time."
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Publisher’s Letter
On the Matter of Charles Kuralt’s Successor
Wise, amusing, eloquent…words that describe an improbable man whom Adlai Stevenson might have said has striven "to educate and elevate a people whose destiny is leadership…in a world in ferment."
This man, Alex Sanders, has long brought plain good sense to the ferment of his world, first as an upstart in South Carolina’s House and Senate. There he made his reputation, unafraid of ugly truth as he was contemptuous of hypocrisy and greed.
He led a charge of the '70's "Young Turks," blasting through our old boy legislative walls laid to conceal impending rape of our state’s miraculous environmental gifts. His article for Legends XVII relates some of that history.
A legislative colleague, Charleston’s Mayor Joe Riley, recalls Tuesday "Lunches with Alex" where the latter would regale fellow Young Turks with his amazing repertoire of stories – words to live by, soon passed on to the hearers’ children. Some years later, when matters arose to which one of these vivid stories was relevant, Alex would be asked to retell it. He couldn’t recall a thing. He’d just made up wonderful tales to inspire his pals. Nobody enjoyed revealing that truth more than Alex!
Many have noted the clarity of vision he later evinced as Chief Judge of our Court of Appeals. A Shakespearean scholar and lover of anything written from Greek Mythology to Kipling and Poe to last week’s 24 script, his witty, implosive pen created artful (often shocking) opinions admired, instructive, laced with good humor.
Quoting Humpty Dumpty ("When I use a word it means just what I choose it to mean – neither more nor less"), he decided an insurance policy wording question. And in a famous quote from an early decision, he reverently noted that appellate courts "were like well-behaved children; they did not speak unless spoken to, nor answer questions they were not asked." Always there was the apt anecdote, as in explaining why the exceptions to a rule were interesting but not on point:
This argument in support of the doctrine based on its exceptions and lack of uniform application reminds us of the old story about the man who ate a pair of shoes. When asked how he liked them, he replied that the part he liked best was the holes.
Charleston, too, has seen firsthand his leadership as co-founder of The Charleston School of Law, and earlier, as president of the College of Charleston, where he cajoled talented professors into relocating here. Winning George Street respect with a folksy ability to reach everyone, he reenergized an institution for the 21st century.
My friend will blush with this comparison, for Lincoln sits alone, unique. Yet in his way and time in South Carolina, Alex Sanders has (in the words of a Caucasus chief who admired President Lincoln) "…laughed like the sunrise…(yet) his deeds have been as strong as the rock…" If only I hadn’t failed in suggesting he apply to be Charles Kuralt’s On The Road successor at CBS.
We are better for having had among us for 67 years Alex Sanders; here’s hoping for many more. Other articles, such as on porpoises and abundant bird life at Kiawah, would have been different without those wise, long-ago attitudes Alex helped spawn.
My belief is that you’ll enjoy the creativity our Legends team has put into their Volume XVII. Like Alex, they have asked of us almost nothing, and have given us all they have.