The problem with eye-witness testimony

Eye witness testimony is one of the 2 types of evidence that can be presented in a trial.  The person tells what he or she witnessed and the jurors decide whether the witness is credible.  

Eyewitness testimony can . . . be critiqued on several grounds: having impaired perception, having impaired memory, having an inconsistent testimony, having bias or prejudice, and not having a reputation for telling the truth. If any of those characteristics can be demonstrated, then the competency of a witness is questionable. (Eyewitness Testimony, Memory and Psychology)

"Mistaken or flawed identification has assumed a newfound prominence in recent years: It's been cited as a factor in nearly 78 percent of the nation's first 130 convictions later overturned by DNA testing" ("How reliable is eyewitness testimony?" American Psychological Association, April 2006, Vol. 37, No. 4).

One of the problems affecting the credibility of an eye witness identification is visual impairment caused by distance.  Geoffrey Loftus, PhD, a University of Washington perception and cognition psychology professor, "began seeking a way to visually present to juries the proposition that people's ability to decipher details degrades rapidly as a person or object moves further away.  'At 10 feet, you might not be able to see individual eyelashes on a person's face,' he says. 'At 200 feet, you would not even be able to see a person's eyes. At 500 feet, you could see the person's head but just one big blur. There is equivalence between size and blurriness-by making something smaller you lose the fine details'." ("How reliable is eyewitness testimony?", American Psychological Association, April 2006, Vol. 37, No. 4).

Another problem with eye witness evidence is that the memory is not perfect.  As Elizabeth Loftus describes in her book Memory: Surprising New Insights into How We Remember and Why We Forget:

Memory is imperfect. This is because we often do not see things accurately in the first place. But even if we take in a reasonably accurate picture of some experience, it does not necessarily stay perfectly intact in memory. Another force is at work. The memory traces can actually undergo distortion. With the passage of time, with proper motivation, with the introduction of special kinds of interfering facts, the memory traces seem sometimes to change or become transformed. These distortions can be quite frightening, for they can cause us to have memories of things that never happened. Even in the most intelligent among us is memory thus malleable.

"Memory is not so much a static state as it is an ongoing process - and one which never happens in quite the same way twice. This is why we should have a skeptical, critical attitude towards all eyewitness testimony and all reports from memory - even our own and no matter what the subject, however mundane." (Eyewitness Testimony, Memory and Psychology)

Eye witness testimony isn't just important to a State's case; sometimes defendants must rely heavily on it, too.  Such is the case with Scott Peterson -- he relies on the credibility of several eye witnesses to confirm that Laci was still alive when he left for the warehouse on the morning of December 24, 2002.  Many people simply dismiss those eye witnesses out of hand, citing the general unreliability of eye witnesses.

It is true that sincere people may have thought they saw Laci, but were mistaken and saw someone else.  Or they may have thought they saw her on December 24, when in fact they saw her on another day.  Certainly, they may have been affected by the public information that Laci was wearing a white top and black pants, but the Missing Persons posters didn't have Laci wearing a white top and black pants.  These are the pictures as they appeared on the Missing Persons poster, and also as used by the media.

Dismissing all eye witness sightings because some are flawed is just ridiculous.  There are six  significant factors that significantly increase the credibility of the 7 eye witness sightings reported in the A&E docuseries.  

First, Laci was not alone, she was with McKenzie.  Laci wasn't just a woman walking, or a pregnant woman walking.  She was a pregnant woman walking McKenzie, a golden retriever.

This photo of McKenzie is People's Exhibit no. 27A.

Second, she was very close to the person(s) who saw her.  The Maldonado's, Tony Freitas, Frank and Martha Aguilar, and Gene Pedrioli all drove by Laci and McKenzie walking along the sidewalk.   The Mitchell's saw Laci and McKenzie as they walked in front of their home.  Chiavetta saw Laci and McKenzie in the park while he and his own dog were playing in the park.  Campos was the furthest away from Laci and McKenzie, but she could see McKenzie well enough to notice the distinguishing white fur on his chest.

Third, there was something else that made the sighting more memorable.  The Maldonado's saw McKenzie up on his hind legs and wondered if he might knock Laci over.  Freitas also saw 2 scrubby looking men at the bus stop very near where Laci and McKenzie were walking.  The Aguilar's thought it very foolish for Laci to not have on a coat.  The Mitchells thought McKenzie wanted to go one way and Laci another.  Campos saw and heard the 2 men that were harassing Laci.  Chiavetta was paying much more attention to McKenzie because his own dog was off leash.

Fourth, the sightings collectively form a walk route for Laci and McKenzie.  For a good visual of the walk route, please refer to Laci's Walk - The A&E Docuseries, written by Jane Hamilton.  

Fifth, none of these eye witnesses knew that the others had also seen Laci and McKenzie that morning along that route.  They were not influenced by each other's account. 

Sixth, while it was widely reported that Laci and McKenzie walked in the park, 5 of these 7 sightings were not in the park.  The Campos sighting was in a different part of the park than where Laci was reported to have walked.

These are the women the Prosecution paraded before the jury to prove the eye witnesses were mistaken.  I have links to both the testimonies and the maps/photos.

Wednesday, September 8, 2004

Prosecution Witness #133:  Martin Dempewolf  Testimony

Dempewolf's wife was 9 months pregnant on Dec. 24, '02, and she was walking her dog, a chocolate Lab, in the Dry Creek Park that day.  He said she left between 9;15 and 9:30, and the walk took about 45-60 minutes.  She walked through the subdivisions to La Loma, entered the park, walked through the park to the paved path, continued on Edgebrooke to Covena, down Covena to Encina and then home.  Geragos reviewed the statements he gave to Bertalotto in Jan '04, indicating he couldn't specify the time she took the walk.  And, in response to Geragos' last question, he replied:  My wife has a good memory, I don't. 

Exhibits Introduced

EXHIBIT 223: PHOTO OF FAMILY ON 1-11-03 AND MAP
EXHIBIT 223A: PHOTO OF DOG "JAKE"
 

Prosecution Witness #134:  Jordan Visola-Prescott, Pregnant Neighborhood Walker  Testimony

Exhibits Introduced

EXHIBIT 224 A: JORDAN VISOLA ON 12-25-02
EXHIBIT 224 B: JORDAN VISOLA JAN. 2003
EXHIBIT 224 C: JORDAN VISOLA AND HER DOG JUNE 11, 2003
EXHIBIT 224 D: MAP OF WALK

Prosecution Witness #135:  Elizabeth Guptill, Pregnant neighborhood walker  Testimony

Exhibits Introduced

EXHIBIT 225 A: PHOTO ELIZABETH GUPTILL, SON, FATHER
EXHIBIT 225 B: MAP

Prosecution Witness #136:  Jill Lear, Pregnant Neighborhood walker  Testimony

Exhibits Introduced

EXHIBIT 226 A: MAP

These three women were all pregnant on Dec 24, '02, lived in the La Loma neighborhood, and regularly took walks.  Prescott could not say with certainty she walked the morning of the 24th, and the other two were certain they did not walk that morning.  When Prescott did walk, she pulled her daughter along in a red wagon, and her dog is a lab mix.  When Guptill walked, she often was pushing her son in a jogging stroller, and she didn't have a dog.  Lear's dog was a Australian Shepherd, and she usually walked in the afternoons.  Prescott was 2 1/2 months pregnant with twins, Guptill was 5 months pregnant, and Lear was 6 1/2 months pregnant on December 24, 2002.

Thursday, September 9, 2004
Prosecution Witness #137:  Kim Westphal, Covena Walker  Testimony

Westphal routinely walks a route that takes her from Edgebrooke down Covena to Encina, right past the Peterson home.  She testified that she did take her walk on Dec 24 '02 and arrived at Covena about 10:50 am, and she did not see anything out of the ordinary.  Westphal's testimony, however, didn't agree with what she told officers going door-to-door on the night of Dec. 24.  She told them she couldn't be sure she walked down Covena that morning.  Her testimony seemed to contradict what she told her neighbor and her mother about her activities on the morning of the 24th.  Westphal walked with another woman, Dana Evans, who has not yet been called to testify.

Exhibits Introduced

EXHIBIT 227-A: COPY PHOTO OF KIM WESTPHAL AND HER DOG.
EXHIBIT 227-C: MAP OF ROUTE WALKED

Prosecution Witness #138:  Patricia Mewhinney, Park Walker  Testimony

Mewhinney testified that she walked her dog in the Park the morning of Dec. 24, from the tennis courts to the golf course and then back again. She said it was cold and damp that morning, and she wore a winter coat. She didn't see anything out of the ordinary in the park that day. She has long blond hair, and her dog is a black, part Lab and part German Shepherd.  She arrived at home after her walk by 9:30.

Exhibits Introduced

EXHIBIT 228-A: PHOTO OF PATRICA MEWHINNEY AND HER DOG.
EXHIBIT 228-B: MAP OF ROUTE WALKED

 

Prosecution Witness #139:  Brian Lee  Testimony

Lee said he ran his usual run along the park's bike trail on the morning of Dec. 24, leaving his home at 10:00 am.  He said he would have arrived at the Covena trail about 15 minutes later.  The weather was cold, so he wore sweats instead of shorts, and he didn't see anyone on the bike trail. Geragos pointed out that his testimony disagreed with the information he gave when interviewed last summer.  Then he told police he took his run sometime before noon, sometime between 10 and 11:30.  He runs with a chocolate Lab.

 

Prosecution Witness #140:  Joan Lee (wife of previous witness)  Testimony

Dec 24 '02 Lee was 4-4.5 months pregnant. She walked with her husband and their dog in the evenings, and their walk took them past Vivian Mitchell's home. She was certain they walked on the evening of the 24th, but probably didn't from the 17th to the 14th.  She was interviewed by Det. Grogan in June '03, and she told him she couldn't be certain how often she walked in December. 

Exhibits Introduced

EXHIBIT 229-A: PHOTO JOAN LEE AND HER DOG.
EXHIBIT 229-B: MAP ROUTE WALKED

 

Prosecution Witness #141:  Dianne Heaston Merenda, Park Walker  Testimony

Blonde, with a golden retriever, she lived in the La Loma neighborhood.  She would walk early morning, about 7 a.m., go down the Covena path into the park, walk to the pump house and back and exit the park using the paved Edgebrook path. The walk usually took her 20-30 minutes. She was certain she did not walk on the 24th, and she could not be sure how often she walked around that time frame.  She was not pregnant on Dec. 24.

Exhibits Introduced

EXHIBIT 230: MAP OF ROUTE WALKED.

 

Prosecution Witness #142:  Melba Martinez  Testimony

Lives in La Loma neighborhood and has 2 golden retrievers.  Her walk route included Covena from Edgebrook to Encina.  Her usual walk time is 6:30-7:00 am, but she sometimes goes later and sometimes walks in the evenings.  She walks only one dog at a time.  She couldn't recall walking either the 23rd or the 24th. 

Exhibits Introduced

EXHIBIT 231: MAP OF ROUTE WALKED.
EXHIBIT 231A: PHOTO OF DOG "RUBY".

 

Prosecution Witness #143:  Amy Neumann, pregnant woman  Testimony

Lives on Buena Vista. Did not walk on Dec. 24. Introduced to Laci when Laci was involved with making a traffic study video for the Encina Street project, which is separate from the Thousand Oaks Park and Trail project Laci was also involved in.  Her dog is a poodle.  She was pregnant at the time and under doctor's orders to rest with her feet up in the afternoons, and she would lay on the couch and watch the activity in front of her house.  Her dog would bark when other people or dogs went by.  She was not at home on Dec. 24 from 10 am to 1 pm. 

Exhibits Introduced

EXHIBIT 232: MAP OF ROUTE WALKED

EXHIBIT D6F: PHOTO OF AMY NEWMANN AND HER DOG.