According to The Innocence Project, in 2017, bad eyewitness testimony contributed to 70% of wrongful convictions later overturned in the United States by DNA evidence.  

On Sunday, March 7th, New England Public Media presents a 30-minute special at 6pm on WFCR 88.5 FM entitled Questioning the Witness. In it, NEPM reporter Karen Brown looks at the evolving science of eyewitness testimony. She also shares the stories of those convicted with little to no evidence other than an eyewitness report. Zydalis Bauer spoke with Brown recently to learn more. 

Read the transcript:

Zydalis Bauer, Connecting Point: According to the Innocence Project, in 2017, bad eyewitness testimony contributed to 70 percent of wrongful convictions later overturned in the United States by DNA evidence.

This Sunday, March 7th, New England Public Media presents a 30-minute special at 6 p.m. on WFCR 88.5FM entitled Questioning the Witness. In it, reporter Karen Brown looks at the evolving science of eyewitness testimony and shares the personal stories of people who have been convicted with little-to-no evidence other than an eyewitness report.

I spoke with her recently to learn more.

Karen Brown, NEPM Reporter: Well, the basis is the science of eyewitness testimony, and how the science has evolved over the years to cast more doubt on whether eyewitnesses really are the end-all and be-all of trials, and whether they should have as much sway as they actually do in convicting people.

And I’ve talked to a number of people in Massachusetts who are either in jail or were in jail, they believe, because of faulty eyewitness testimony. And since I’m a science reporter, as well as someone who’s interested in incarceration and criminal justice, I thought it was a good idea to sort of meld all of those issues together and look and see what’s happening now and what’s happening in the past.

Zydalis Bauer: As I was listening to the series, one thing that was particularly alarming for me, was that a lot of the stories you shared were local stories. And it was terrifying that these people were convicted of a crime just really based off of an eyewitness report, very little evidence.

What were some of the shocking things that you learned along the way while doing this project?

Karen Brown: I mean, that in itself was shocking to me, that you can just have one or two regular folks who think they saw something and that becomes the entire case. You know, I had this idea that if you’re going to send someone to prison for life, you have really airtight evidence. And I think that has improved over the years.

But there are people that have, you know, were convicted three decades ago. And when you look through the trial evidence, it just seems so flimsy and you just think, “how is that possible?” Because I know for me, the idea of being locked up for something, even for something I did, much less for something I didn’t do, is a real nightmare.

And you just want to believe that it you know, that there’s more evidence. And, it’s not necessarily that people were convicting them through bad motives, but they just didn’t understand that just because someone says, “I’m absolutely positive that’s the guy,” that doesn’t mean they’re right.

Zydalis Bauer: And one of the stories that you shared that stuck with me was that of James Watson, who was released last year after 41 years in prison. And one thing that he said was even today, he doesn’t feel like the justice system is any better. And he still worries about being wrongfully convicted.

Based on your research, do you think that that he’s correct for thinking the way that he is that he does?

Karen Brown: Well, I think anyone is correct for having feelings and concerns. And certainly his experience is such that, he — there wasn’t much evidence that put him in jail for a long, long time. So, I asked him specifically, you know, do you think the system is better now? And he just I mean, he’s been in prison all this time, but he doesn’t have any reason to believe it.

And, you know, over the last year and of course, many years, we’ve seen the criminal justice system severely flawed. And many people are punished for things they should not be punished for, to an extreme that they should not be punished for. So, I don’t blame someone who who feels like they were wronged and doesn’t necessarily assume that everything is peachy and worked out at the moment.

Zydalis Bauer: And there was another story that you share with Vijay and the fact that he was able to be convicted with — without even having a criminal background was alarming for me as well. Tell me a little bit about his story.

Karen Brown: Ramon Vijay, yeah, he was convicted about five years ago for a home invasion. His lawyer is actually the first person I talked to when I started to get interested in, you know, do I want to do a story about his case in particular? And I decided actually, I thought the issues in his case warranted a broader look.

But his lawyer says that he was convicted mostly on the basis of two eyewitnesses who were not handled in the way they’re supposed to be by the police. They were allowed to be together in the back of a cruiser when they identified him and he was in handcuffs when they identified him again.

So these are all things that kind of go against what the science says you should do, the police should do, to make sure that an eyewitness identification is reliable and it and it wasn’t done. So, he’s now looking at about 20 years. Again, I don’t have any personal information about who’s guilty and who’s not guilty.

But if you just look at the evidence that is presented, you can get a pretty good idea of how much evidence is needed to convict somebody. And sometimes it is very much dominated by eyewitness evidence.

Zydalis Bauer,: And the Innocence Project that was featured in the series has found that 70 percent of wrongful convictions were the result of bad eyewitness testimony.

Do you think that progress has been made in Massachusetts to improve the accuracy of these types of reports?

Zydalis Bauer: Most of the lawyers and defense attorneys and experts and police officers tell me they do think that it has gotten better, that there have been some court rulings and some national reports and some state reports that really talk about the science of memory and really push for instructing juries in the courtroom.

But even if somebody says, “I’m absolutely positive I saw this person,” that’s not evidence that they’re correct, that confidence levels are not necessarily commensurate with accuracy. Or that you have to pay attention to the condition of the witness and were they are impaired in some way and all sorts of different things like that.

So that definitely has improved, people have told me. But that doesn’t mean that cases don’t fall through the cracks. And that also does not apply to people who were convicted before these rulings came out.

Zydalis Bauer, Connecting Point: Researching on these types of stories can be very intense and take a toll emotionally. How was it for you to hear all of these stories for this project?

Karen Brown: I mean, it was very concerning and sad, especially, you know, I would have liked to talk to more people who are in prison, but that’s very complicated, especially right now.

Talking to James Watson was on the one hand, it was very joyful because he was out of prison, but he lost so many years. And he really tries to have a very positive attitude. But it’s hard not to feel terrible.

And I’ve I’ve done interviews in the past with people who have been wrongfully incarcerated. And I’ve always been stunned at how positive an attitude they seem to have. They’re very much relieved and they’re very much trying not to be bitter. But, of course, they’re still angry at all they’ve lost.

Zydalis Bauer: What was your biggest takeaway after completing this project?

Karen Brown: It’s interesting to me that that science and the law are not better integrated. Certain core principles that people who study criminal justice and study memory that are so clear to them, they simply they’re not in law schools. Like lawyers are not taught to to understand the principles of eyewitness testimony, at least not in many law schools. Police are not necessarily trained in that way, although that is changing.

And I interviewed one police chief who goes around doing those trainings, but I just would have thought there would be more of a sort of a checking in from the courts, like, “what are we missing?” And it just generally doesn’t happen that way.