Why eyewitnesses get it wrong - Scott Fraser

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The murder happened a little over 21 years ago, January the 18th, 1991, in a small bedroom community of Lynwood, California, just a few miles Southeast of Los Angeles. A father came out of his house to tell his teenage son and his five friends that it was time for them to stop horsing around on the front lawn and on the sidewalk, to get home, finish their schoolwork, prepare themselves for bed.

As the father was administering these instructions, a car drove by slowly, and just after it passed the father and the teenagers, a hand went out from the front passenger window and Bam Bam, killing the father. The car sped off. The police investigating officers were amazingly efficient. They considered all the usual culprits, and in less than 24 hours, they had selected their suspect, Francisco CIO, a 17-year-old kid who lived about two or three blocks away from where the shooting occurred.

They found photos of him, they prepared a photo array, and the day after the shooting, they showed it to one of the teenagers, and he said, "That's the picture, that's the shooter. I saw that killed the father." That was all a preliminary hearing judge had to listen to to bind Mr. CIO over to stand trial for first-degree murder.

In the investigation that followed, before the actual trial, each of the other five teenagers was shown photographs, the same photo array. The picture that we best can determine was probably the one that they were shown in the photo array is in your bottom left corner of these mug shots. The reason we're not sure absolutely is because of the nature of evidence preservation in our judicial system, but that's another whole TEDx talk for later.

So at the actual trial, all six of the teenagers testified and indicated the identifications they had made in the photo array. He was convicted. He was sentenced to life imprisonment and transported to a prison. So what's wrong? Straightforward? Fair trial? Full investigation? Oh yes. No gun was ever found, no vehicle was ever identified as being the one in which the shooter had extended his arm, and no person was ever charged with being the driver of the shooter's vehicle.

Mr. CIO's alibi, which of those parents here in the room might not lie concerning the whereabouts of your son or daughter in an investigation of a killing? Second to prison, adamantly insisting on his innocence, which he has consistently for 21 years. So what's the problem? The problems actually for this kind of case come manyfold from decades of scientific research involving human memory.

First of all, we have all the statistical analysis from the Innocence Project work where we know that we have what? 250, 280 documented cases now where people have been wrongfully convicted and subsequently exonerated, some from death row, on the basis of later DNA analysis. And you know that over 34% of all of those cases of exoneration involved only eyewitness identification testimony during the trial that convicted them.

We know that eyewitness identifications are fallible. The other comes from an interesting aspect of human memory that's related to various brain functions, but I can sum up for the sake of brevity here in a simple line: the brain abhors a vacuum. Under the best of observation conditions, the absolute best, we only detect, encode, and store in our brains bits and pieces of the entire experience in front of us, and they're stored in different parts of the brain.

So now when it's important for us to be able to recall what it was that we experienced, we have an incomplete, we have a partial store. What happens below awareness, with no requirement for any kind of motivated processing? The brain fills in information that was not there, not originally stored, from inference, from speculation, from sources of information that came to you as the observer after the observation. But it happens without awareness, such that you aren't even cognizant of it occurring. It's called reconstructed memories.

It happens to us in all the aspects of our lives, all the time. It was those two considerations, among others—reconstructed memory, the fact about the eyewitness fallibility—that was part of the instigation for a group of appeal attorneys led by an amazing lawyer named Ellen Edgar to pool their experience and their talents together and petition the superior court for a retrial for Francisco CIO.

They retained me as a forensic neurophysiologist because I had expertise in eyewitness memory and identification, which obviously makes sense for this case, right? But also because I have expertise and testify about the nature of human night vision. But what's that got to do with this? Well, when you read through the case materials in this CIO case, one of the things that suddenly strikes you is that the investigating officers said the lighting was good at the crime scene at the shooting.

All the teenagers testified during the trial that they could see very well, but this occurred in mid-January in the northern hemisphere at 7:00 p.m. at night. So when I did the calculations for the lunar data and the solar data at that location on Earth at the time of the incident of the shooting, it was well past the end of Civil Twilight, and there was no moon up that night.

So all the light in this area from the Sun or the moon is what you see on the screen right here. The only lighting in that area had to come from artificial sources. That's where I go out and I do the actual reconstruction of the scene with photometers, various measures of illumination, and various other measures of color perception, along with special cameras and high-speed film.

I take all the measurements and record them, right, and then take photographs. This is what the scene looked like at the time of the shooting from the position of the teenagers looking at the car going by and shooting. This is looking directly across the street from where they were standing. Remember, the investigating officer's report said the lighting was good, and the teenagers said they could see very well.

This is looking down to the east where the shooting vehicle sped off, and this is the lighting directly behind the father and the teenagers. As you can see, it is at best poor. No one's going to call this well-lit. Good lighting, in fact. As nice as these pictures are—and the reason we take them is I knew I was going to have to testify in court, and a picture is worth more than a thousand words when you're trying to communicate numbers, abstract concepts like Lux, the international measurement of illumination, and the Shahara color perception test values.

When you present those to people who are not well-versed in those aspects of science, they become salamanders in the noonday sun. It's like talking about the tangent of the visual angle; their eyes just glaze over. A good forensic expert also has to be a good educator, a good communicator, and that's part of the reason why we take the pictures—to show not only where the light sources are and what we call the spill, the distribution, but also so that it's easier for the trier of fact to understand the circumstances.

These are some of the pictures that, in fact, I use when I testify, but more importantly, to me as a scientist, are those readings— the photometer readings—which I can then convert into actual predictions of the visual capability of the human eye under those circumstances. From my readings that I recorded at the scene, under the same solar and lunar conditions, I could predict that there would be no reliable color perception, which is crucial for face recognition, and that there would be only topic vision, which means there'd be very little resolution—what we call boundary or edge detection—and that furthermore, because the eyes would have been totally dilated under this light, the depth of field, the distance at which you can focus and see details, would have been less than 18 inches.

I testified to that to the court, and while the judge was very attentive, it had been a very, very long hearing for this petition for a retrial. As a result, I noticed out of the corner of my eye that I thought that maybe the judge was going to need a little more of a nudge than just more numbers. Here, I became a bit audacious, and I turned and I asked the judge. I said, "Your honor, I think you should go out and look at the scene yourself."

Now I may have used a tone which was more like a dare than a request, but nonetheless, it's to this man's credit and his courage that he said, "Yes, I will." A shocker in American jurisprudence! So, in fact, we found the same identical conditions. We reconstructed the entire thing again. He came out with an entire Brigade of Sheriff's officers to protect him in this community.

We had him stand actually slightly in the street, so closer to the suspect vehicle—shooter vehicle—than the actual teenagers were. He stood a few feet from the curb toward the middle of the street. We had a car that came by, same identical car as described by the teenagers. It had a driver and a passenger, and after the car had passed, the judge by the passenger extended his hand, pointed it back to the judge as the car continued on, just as the teenagers had described it.

Right now, he didn't use a real gun in his hand. So he had a black object in his hand that was similar to the gun that was described. He pointed by, and this is what the judge saw. This is the car, 30 feet away from the judge. There's an arm sticking out of the passenger’s side and pointed back at you. That's 30 feet away. My teenagers said that, in fact, the car was 15 feet away when it shot.

Okay, there's 15 feet. At this point, I became a little concerned. This judge is someone you never want to play poker with. He was totally stoic. I couldn't see a twitch of his eyebrow; I couldn't see the slightest bend of his head. I had no sense of how he was reacting to this. After he looked at this reenactment, he turned to me, and he says, "Is there anything else you want me to look at?"

I said, "Your honor," and I don't know whether I was emboldened by the scientific measurements that I had in my pocket and my knowledge that they were accurate, or whether it was just sheer stupidity—which is what the defense lawyers thought when they heard me say, "Yes, your honor, I want you to stand right there, and I want the car to go around the block again. I want it to come, and I want it to stop right in front of you, three to four feet away, and I want the passenger to extend his hand with a black object, point right at you, and you can look at it as long as you want."

That's what he saw. You'll notice, which was also in my test report, all the dominant lighting is coming from the north side, which means that the shooter's face would have been backlit. Furthermore, the roof of the car is causing what we call a shadow cloud inside the car, which is making it darker. Right? And this is three to four feet away.

Why did I take the risk? I knew the depth of field was 18 inches or less. Three to four feet, it might as well have been a football field away. This is what he saw. We went back; there were a few more days of evidence that was heard. At the end of it, he made the judgment that he was going to grant the petition for a retrial and, furthermore, he released Mr. CIO so that he could aid in the preparation of his own defense if the prosecution decided to retry him, which they decided not to.

He is now a freed man. This is him embracing his grandmother-in-law. His girlfriend was pregnant when he went to trial, and she had a little baby boy. He and his son are both attending Cal State Long Beach right now, taking classes.

And what does this example say? What's important to keep in mind for ourselves? First of all, there's a long history of antipathy between science and the law in American jurisprudence. I could regale you with horror stories of ignorance over decades of experience as a forensic expert, just trying to get science into the courtroom. The opposing counsel always fight it and oppose it.

One suggestion is that all of us become much more attuned to the necessity, through policy, through procedures, to get more science in the courtroom. I think one large step toward that is more requirements, with all due respect to the law schools, of science, technology, engineering, and mathematics for anyone going into the law because they become the judges.

Think about how we select our judges in this country. It's very different than most other cultures. The other one is I want to suggest the caution that all of us have to have. I constantly have to remind myself about just how accurate are the memories that we know are true, that we believe in. There is decades of research, examples, and examples of cases like this where individuals really, really believe—none of those teenagers, right, who identified him thought that they were picking the wrong person. None of them thought they couldn't see the person's face.

We all have to be very careful. All our memories are reconstructed memories. They are the product of what we originally experienced and everything that's happened afterwards. They're dynamic, they're malleable, they're volatile. As a result, we all need to remember to be cautious that the accuracy of our memories is not measured in how vivid they are, nor how certain you are that they're correct.

Thank you.

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