1 00:00:00,280 --> 00:00:04,760 Speaker 1: This episode includes discussion of sexual assault. Listener discretion is 2 00:00:04,800 --> 00:00:10,520 Speaker 1: advised if you will place your left hand on the 3 00:00:10,560 --> 00:00:14,240 Speaker 1: Bible and raise your right hand, and please repeat after 4 00:00:14,320 --> 00:00:18,040 Speaker 1: me and I do solemnly swear. The jury then titled 5 00:00:18,040 --> 00:00:21,040 Speaker 1: action find the defendant guilty of the prime It makes 6 00:00:21,079 --> 00:00:24,840 Speaker 1: no sense, it doesn't fit. If it doesn't fit, you 7 00:00:25,040 --> 00:00:27,600 Speaker 1: must aquit. We all took the same of the office. 8 00:00:27,800 --> 00:00:30,760 Speaker 1: We're all bound by that common commitment to support and 9 00:00:30,800 --> 00:00:34,120 Speaker 1: defend the Constitution, to bear true faith in allegiance to 10 00:00:34,159 --> 00:00:37,160 Speaker 1: the same that you faithfully discharge the duties of our office. 11 00:00:37,400 --> 00:00:40,680 Speaker 1: Do you solemnly swear or affirm that the testimony you're 12 00:00:40,680 --> 00:00:42,920 Speaker 1: about to give will be the truth, the whole truth, 13 00:00:43,000 --> 00:00:46,320 Speaker 1: and nothing but the truth. From Tenderfoot TV and I 14 00:00:46,440 --> 00:00:59,920 Speaker 1: Heart Radio, this is Sworn. I'm your host, Philip Holloway. 15 00:01:00,040 --> 00:01:03,960 Speaker 1: Years ago, I heard a story about a year old 16 00:01:03,960 --> 00:01:07,200 Speaker 1: woman on death row in Chicago. She was sentenced to 17 00:01:07,280 --> 00:01:11,120 Speaker 1: death on a plea bargain. This made no sense to 18 00:01:11,200 --> 00:01:13,080 Speaker 1: me how someone could be sentenced to death on a 19 00:01:13,080 --> 00:01:16,160 Speaker 1: plea bargain. So I actually set up to meet with 20 00:01:16,200 --> 00:01:19,440 Speaker 1: her on death row. She said that's what her lawyer 21 00:01:19,480 --> 00:01:21,240 Speaker 1: told her to do. To plea out and that was 22 00:01:21,240 --> 00:01:26,000 Speaker 1: her best chances of getting a good result, she said, 23 00:01:26,080 --> 00:01:31,039 Speaker 1: and I'm innocent. I went back told my students about it, said, 24 00:01:31,120 --> 00:01:33,080 Speaker 1: you know, there's this woman on death row. She says 25 00:01:33,120 --> 00:01:37,680 Speaker 1: she's innocent, she's got an execution date. We worked on 26 00:01:37,760 --> 00:01:40,880 Speaker 1: her case, sitting in my kitchen and going out to 27 00:01:40,920 --> 00:01:44,960 Speaker 1: the crime scene and tracking down witnesses. After I got 28 00:01:44,959 --> 00:01:47,920 Speaker 1: her death sentence reversed, I decided that's what I wanted 29 00:01:47,960 --> 00:01:51,760 Speaker 1: to do with my life. I have her picture. I'm 30 00:01:51,760 --> 00:01:55,560 Speaker 1: looking at it right now on my wall. Just sitting 31 00:01:55,640 --> 00:01:59,080 Speaker 1: on death row twenty five years ago and looking at 32 00:01:59,120 --> 00:02:05,080 Speaker 1: a kid sickly who went through the system without any assistance, 33 00:02:05,160 --> 00:02:10,040 Speaker 1: who didn't get a trial, didn't get any investigation, was 34 00:02:10,080 --> 00:02:12,040 Speaker 1: so shocking to me that that could happen in the 35 00:02:12,120 --> 00:02:16,160 Speaker 1: United States of America that it just changed my entire life. 36 00:02:17,320 --> 00:02:20,440 Speaker 1: And I always say there's two naive positions. One naive 37 00:02:20,480 --> 00:02:23,480 Speaker 1: position is that everyone in prison is innocent. The other 38 00:02:23,600 --> 00:02:27,239 Speaker 1: naive position is everyone in prison is guilty. The truth 39 00:02:27,360 --> 00:02:30,760 Speaker 1: is most people in prison are guilty, and we're trying 40 00:02:30,760 --> 00:02:33,639 Speaker 1: to figure out, you know, where does that line end 41 00:02:34,400 --> 00:02:39,400 Speaker 1: of most Thirty years ago, I was sworn in as 42 00:02:39,400 --> 00:02:44,560 Speaker 1: a deputy sheriff in South Georgia. In I passed the 43 00:02:44,600 --> 00:02:48,680 Speaker 1: bar exam. I've been a prosecutor, I've been defense counsel, 44 00:02:49,320 --> 00:02:52,960 Speaker 1: and I've even warned a judge's room. I've seen just 45 00:02:53,040 --> 00:02:56,280 Speaker 1: about every side of the American legal system that there 46 00:02:56,480 --> 00:03:00,480 Speaker 1: is to see. Last season on this show, we looked 47 00:03:00,480 --> 00:03:03,200 Speaker 1: at just some of the criminal cases that caught my attention, 48 00:03:03,200 --> 00:03:05,760 Speaker 1: and we highlighted a few of the issues in the 49 00:03:05,840 --> 00:03:09,560 Speaker 1: system that we thought were important. Now we're taking a 50 00:03:09,560 --> 00:03:13,480 Speaker 1: new approach. We're tackling the problems that run rampant in 51 00:03:13,480 --> 00:03:17,880 Speaker 1: our legal system, the roadblocks, the corruption loopholes, things that 52 00:03:18,040 --> 00:03:22,680 Speaker 1: cause innocent people to wind up behind bars. We're taking 53 00:03:22,720 --> 00:03:26,040 Speaker 1: a good, hard look at the criminal justice system head 54 00:03:26,080 --> 00:03:42,400 Speaker 1: on this season on Sworn welcome back. As I mentioned 55 00:03:42,400 --> 00:03:44,840 Speaker 1: at the beginning, things are a little different this season. 56 00:03:45,320 --> 00:03:49,400 Speaker 1: As a practicing criminal lawyer, former peace officer, and former prosecutor, 57 00:03:49,840 --> 00:03:52,120 Speaker 1: I deal with the inner workings of the criminal justice 58 00:03:52,160 --> 00:03:55,920 Speaker 1: system on a daily basis. I see how complicated and 59 00:03:56,040 --> 00:03:58,720 Speaker 1: heartbreaking it can be, and I know how many people 60 00:03:58,760 --> 00:04:03,480 Speaker 1: are caught unaware in horrible circumstances. Over the course of 61 00:04:03,520 --> 00:04:06,200 Speaker 1: this season, We're going to look at just some of 62 00:04:06,240 --> 00:04:09,840 Speaker 1: these high stakes situations, the ones that I see all 63 00:04:09,840 --> 00:04:12,320 Speaker 1: the time, and we're going to hear from people who 64 00:04:12,320 --> 00:04:16,680 Speaker 1: have had to live with the consequences. This show is 65 00:04:16,760 --> 00:04:20,839 Speaker 1: dedicated to justice, what justice looks like, and how to 66 00:04:20,920 --> 00:04:24,560 Speaker 1: find justice. We were able to work closely with people 67 00:04:24,600 --> 00:04:29,240 Speaker 1: across the country who are fighting for a more perfect system. 68 00:04:29,279 --> 00:04:31,880 Speaker 1: One of those people is Justin Brooks, who was the 69 00:04:31,960 --> 00:04:35,360 Speaker 1: voice at the beginning of the episode. Justin serves as 70 00:04:35,400 --> 00:04:39,000 Speaker 1: the current director of the California Innocence Project, and you'll 71 00:04:39,000 --> 00:04:42,599 Speaker 1: be hearing from him throughout the season. But first, I 72 00:04:42,680 --> 00:04:45,000 Speaker 1: want to share with you a story of a man 73 00:04:45,240 --> 00:04:49,120 Speaker 1: who was wrongfully convicted based on evidence that many juries 74 00:04:49,560 --> 00:04:54,520 Speaker 1: view as the gold standard I witness testimony. This man 75 00:04:54,640 --> 00:05:00,159 Speaker 1: spent nine years in prison while the perpetrator remains free. 76 00:05:00,920 --> 00:05:04,720 Speaker 1: When it comes to shutting some light on this nightmare 77 00:05:04,880 --> 00:05:08,880 Speaker 1: that so many of us unfortunately share. I'm a walking book. 78 00:05:11,240 --> 00:05:16,640 Speaker 1: The two most common contributing factors of wrongful convictions our 79 00:05:16,680 --> 00:05:21,520 Speaker 1: witness smiths identification and misapplication of forensic science, and I 80 00:05:21,560 --> 00:05:25,280 Speaker 1: was a victim of both of them. My name is 81 00:05:25,360 --> 00:05:29,279 Speaker 1: Joe Dias. I am fifty five years old. I work 82 00:05:29,360 --> 00:05:34,119 Speaker 1: in the high tech field. I'm a father four, married 83 00:05:34,160 --> 00:05:39,600 Speaker 1: to a wonderful woman. As Joe mentioned, when it comes 84 00:05:39,600 --> 00:05:41,920 Speaker 1: to his story, he's an open book, so we asked 85 00:05:42,000 --> 00:05:45,080 Speaker 1: him to start at the beginning. I'm sitting in a 86 00:05:45,120 --> 00:05:48,359 Speaker 1: college class and two plain clothes gentlemen walk up to 87 00:05:48,360 --> 00:05:51,080 Speaker 1: the professor. WoT a note? Professor walks over to my desk. 88 00:05:51,680 --> 00:05:56,920 Speaker 1: They walked me outside. Mind you, this was back then 89 00:05:56,960 --> 00:06:00,520 Speaker 1: there was a popular show called Hidden Camera. I had 90 00:06:00,560 --> 00:06:02,880 Speaker 1: a lot of friends who were you know, Francis. I 91 00:06:02,960 --> 00:06:05,200 Speaker 1: figured this is this is a joke of some kind. 92 00:06:05,240 --> 00:06:09,080 Speaker 1: I walk outside and one of the investigators tells the 93 00:06:09,120 --> 00:06:11,400 Speaker 1: other one he looks like a jack rabbit, may want 94 00:06:11,400 --> 00:06:14,200 Speaker 1: a handcuffle. So they told me to turn around and 95 00:06:14,200 --> 00:06:16,479 Speaker 1: they handcuffed me. That's when I realized, okay, this is 96 00:06:16,480 --> 00:06:19,960 Speaker 1: not a joke. They took me down to the police station, 97 00:06:20,000 --> 00:06:23,680 Speaker 1: interrogating me for a few hours. Wanted to know where 98 00:06:23,680 --> 00:06:26,120 Speaker 1: I was on certain days and if I knew of 99 00:06:26,160 --> 00:06:28,839 Speaker 1: a certain school and a certain part of town. And 100 00:06:28,920 --> 00:06:32,800 Speaker 1: I didn't. But nevertheless, they interrogating me for a long 101 00:06:32,880 --> 00:06:36,279 Speaker 1: time and wanted to know who I knew, who owned 102 00:06:36,320 --> 00:06:40,480 Speaker 1: a Volkswagen band, I said, I don't have the slightest idea. 103 00:06:40,960 --> 00:06:43,880 Speaker 1: They wouldn't tell me why they were interrogating me. You're 104 00:06:43,880 --> 00:06:48,880 Speaker 1: talking about it was hours that they interrogated me. It's 105 00:06:48,880 --> 00:06:50,599 Speaker 1: been so long I don't recall when they've read me 106 00:06:50,640 --> 00:06:52,919 Speaker 1: my rights. But you know, I spoke to the biggest 107 00:06:52,960 --> 00:06:55,479 Speaker 1: mistake I ever made in my life. But again, I 108 00:06:55,560 --> 00:06:59,400 Speaker 1: was a twenty year old, ignorant individual, had nothing to hide, 109 00:06:59,560 --> 00:07:01,640 Speaker 1: so I was willing to talk to them because I 110 00:07:01,680 --> 00:07:04,720 Speaker 1: hadn't done anything wrong. When they finally decided to take 111 00:07:04,760 --> 00:07:06,960 Speaker 1: me over to the county jail, that's when they told 112 00:07:07,000 --> 00:07:10,000 Speaker 1: me that I was being charged with two sexual assaults. 113 00:07:11,960 --> 00:07:14,240 Speaker 1: They took me over to the jail house and I 114 00:07:14,280 --> 00:07:18,800 Speaker 1: didn't see freedom again for another nine years. As I 115 00:07:18,880 --> 00:07:21,360 Speaker 1: listened to his story, one of the things that I 116 00:07:21,400 --> 00:07:25,000 Speaker 1: could not wrap my head around was why Joe got 117 00:07:25,040 --> 00:07:28,679 Speaker 1: picked up in the first place. There were some police 118 00:07:28,720 --> 00:07:31,880 Speaker 1: officers who knew my family and me from the neighborhood. 119 00:07:32,640 --> 00:07:34,680 Speaker 1: You know, we were hood them, so we weren't necessarily 120 00:07:34,840 --> 00:07:38,040 Speaker 1: law abiding citizens that you could just walk by and 121 00:07:38,440 --> 00:07:44,080 Speaker 1: yell at and we would not react. We would throw rocks, mud, fruit, 122 00:07:44,160 --> 00:07:46,880 Speaker 1: whatever was in our vicinity. At the cops and run off. 123 00:07:48,000 --> 00:07:50,840 Speaker 1: These cops knew my brothers and I, and they knew 124 00:07:50,880 --> 00:07:53,760 Speaker 1: that we weren't the little Saints. So one of these 125 00:07:53,760 --> 00:07:57,480 Speaker 1: cops who knew me claims that when he saw the 126 00:07:57,720 --> 00:08:00,840 Speaker 1: sketch of the assailant that they were looking for it, 127 00:08:00,840 --> 00:08:02,680 Speaker 1: that I sort of resembled him, so he put me 128 00:08:02,720 --> 00:08:07,120 Speaker 1: in the in the lineup. From a law enforcement standpoint, 129 00:08:07,280 --> 00:08:10,440 Speaker 1: taking Joe into custody in a college classroom kind of 130 00:08:10,480 --> 00:08:13,520 Speaker 1: makes a lot of sense. It's a contained environment. The 131 00:08:13,640 --> 00:08:17,520 Speaker 1: suspect is unlikely to escape. Most college classrooms I've been 132 00:08:17,560 --> 00:08:19,920 Speaker 1: in only have one way in and one way out. 133 00:08:20,960 --> 00:08:23,240 Speaker 1: As for pointing him out in the first place, I'm 134 00:08:23,280 --> 00:08:26,120 Speaker 1: not a fan of going on police sketches to begin 135 00:08:26,160 --> 00:08:30,720 Speaker 1: an investigation. There's just so much subjectivity, first in a 136 00:08:30,760 --> 00:08:35,320 Speaker 1: witness remembering what they saw, and secondly in how a 137 00:08:35,520 --> 00:08:39,000 Speaker 1: sketch artist will interpret what the witnesses trying to say. 138 00:08:39,559 --> 00:08:41,600 Speaker 1: I did kind of resemble the guy. I did have 139 00:08:41,679 --> 00:08:44,240 Speaker 1: short hair, just like the guy. I had a mustache 140 00:08:44,240 --> 00:08:46,040 Speaker 1: at the time. The guy didn't have a mustache in 141 00:08:46,080 --> 00:08:49,160 Speaker 1: the in the sketch, but he sort of resembled me, 142 00:08:49,160 --> 00:08:50,840 Speaker 1: you know, because the nose was kind of wide and 143 00:08:50,880 --> 00:08:54,520 Speaker 1: everything that was for one of the two charges. The 144 00:08:54,600 --> 00:08:57,280 Speaker 1: other guy had long, long hair, which I can't grow 145 00:08:57,320 --> 00:08:59,839 Speaker 1: because my hair is currently and he had a real 146 00:09:00,000 --> 00:09:03,120 Speaker 1: and he knows which I don't have. So the two 147 00:09:03,400 --> 00:09:07,959 Speaker 1: composites could not have been any more different. They had 148 00:09:07,960 --> 00:09:11,520 Speaker 1: shown both of those victims lineups photo lineups in the past, 149 00:09:11,640 --> 00:09:15,800 Speaker 1: and neither of them could identify the the attacker. Once 150 00:09:15,880 --> 00:09:19,840 Speaker 1: this officer mentioned that I look like one of those composits, 151 00:09:20,960 --> 00:09:24,240 Speaker 1: Supposedly they went back to the two victims and they 152 00:09:24,280 --> 00:09:26,800 Speaker 1: put my picture in the photo lineup, and that they 153 00:09:26,880 --> 00:09:31,240 Speaker 1: both picked me out. I'm the second woman who was attacked. 154 00:09:31,240 --> 00:09:33,839 Speaker 1: These two joggers came by and they saw her putting 155 00:09:33,840 --> 00:09:35,959 Speaker 1: her clothes back on and asked her, Hey, are you okay, 156 00:09:35,960 --> 00:09:38,319 Speaker 1: And she says, that guy just attacked me. He ran 157 00:09:38,440 --> 00:09:41,400 Speaker 1: that way. They chased the guy down, but the guy 158 00:09:41,440 --> 00:09:44,360 Speaker 1: got away. But the guy dropped a slipper and he 159 00:09:44,400 --> 00:09:49,040 Speaker 1: gets away in this waltz dragging vannagant. If I'm not mistaken, 160 00:09:49,080 --> 00:09:50,840 Speaker 1: they looked at the photo lineup and they both picked 161 00:09:50,880 --> 00:09:52,719 Speaker 1: me out, or one of them did, and so then 162 00:09:52,720 --> 00:09:54,679 Speaker 1: one of them came to court and said, yes, that's 163 00:09:54,760 --> 00:09:59,600 Speaker 1: him right there. The first victim, the guy never was 164 00:09:59,640 --> 00:10:01,360 Speaker 1: never able to attack her. He took her to the 165 00:10:01,360 --> 00:10:04,120 Speaker 1: back of the school, and then somebody showed up with him, 166 00:10:04,120 --> 00:10:08,680 Speaker 1: so he ran off. The second guy was able to 167 00:10:08,720 --> 00:10:12,040 Speaker 1: attack the second victim, and in her pennies they found 168 00:10:12,080 --> 00:10:16,000 Speaker 1: some a blood. Now she and her husband were both 169 00:10:16,080 --> 00:10:19,080 Speaker 1: a blood. I'm oh, that should have been enough right 170 00:10:19,120 --> 00:10:21,520 Speaker 1: there to say we don't you mean to go to trial. 171 00:10:23,320 --> 00:10:26,160 Speaker 1: They didn't have DNA testing, but as Joe mentioned, they 172 00:10:26,240 --> 00:10:30,040 Speaker 1: did have blood typing. Blood typing that didn't match Joe 173 00:10:30,080 --> 00:10:33,600 Speaker 1: with the perpetrator. So I guess, in my professional opinion, 174 00:10:33,679 --> 00:10:35,640 Speaker 1: I'm gonna have to agree with Joe on this one. 175 00:10:35,760 --> 00:10:39,120 Speaker 1: I think the trial should have stopped there. During the trial, 176 00:10:39,520 --> 00:10:43,080 Speaker 1: they brought that same forensics asperate who works for the county. 177 00:10:43,200 --> 00:10:46,600 Speaker 1: They brought him into testify, and once he said yes, 178 00:10:46,640 --> 00:10:50,119 Speaker 1: I found this a plus one minus that definitely excludes 179 00:10:50,240 --> 00:10:52,520 Speaker 1: the suspect. It could not have been him. He's oh blood. 180 00:10:53,600 --> 00:10:56,360 Speaker 1: The disciponturnity kept him under the stand for two days 181 00:10:56,480 --> 00:10:59,640 Speaker 1: straight until they were able to batter him enough so 182 00:10:59,679 --> 00:11:02,120 Speaker 1: that he we change his story and say, Okay, the 183 00:11:02,160 --> 00:11:06,199 Speaker 1: evidence was weak and inconclusive. Well, how could it be 184 00:11:06,280 --> 00:11:10,080 Speaker 1: conclusive one day and inconclusive? You know, on paper it's conclusive, 185 00:11:10,320 --> 00:11:13,920 Speaker 1: but after interrogation he changes it that it was inconclusive. 186 00:11:15,440 --> 00:11:17,640 Speaker 1: Joe's got a great question there, and it's one that 187 00:11:17,679 --> 00:11:23,000 Speaker 1: will explore later in the season. Trial, I believe was 188 00:11:23,200 --> 00:11:26,320 Speaker 1: a week or two. It was a nightmare to me. 189 00:11:26,400 --> 00:11:30,360 Speaker 1: It was just a big, abstract sporting competition, you know, 190 00:11:30,520 --> 00:11:34,360 Speaker 1: a verbal joust between attorneys to see who can act 191 00:11:34,400 --> 00:11:39,960 Speaker 1: out the best, my attorney versus the district attorney. A 192 00:11:40,000 --> 00:11:42,360 Speaker 1: lot of the times, trials can feel like that, and 193 00:11:42,440 --> 00:11:46,080 Speaker 1: while it's generally best to keep relationships between defense attorneys 194 00:11:46,080 --> 00:11:51,080 Speaker 1: and prosecutors friendly and professional, sometimes they can turn adversarial. 195 00:11:51,800 --> 00:11:54,120 Speaker 1: There's a lot at stake, and it's not uncommon for 196 00:11:54,160 --> 00:11:59,120 Speaker 1: emotions or egos to run high. And my attorney would 197 00:11:59,160 --> 00:12:00,520 Speaker 1: not let me take the stand, and I'm like, I 198 00:12:00,520 --> 00:12:02,080 Speaker 1: need to take the stand. I need to speak up 199 00:12:02,120 --> 00:12:04,880 Speaker 1: for myself. I don't have anything to hide, and he's like, no, 200 00:12:05,080 --> 00:12:08,839 Speaker 1: you look angry. I look angry. That's an understatement. What 201 00:12:08,840 --> 00:12:11,080 Speaker 1: do you mean I look angry? What if the roles 202 00:12:11,200 --> 00:12:14,080 Speaker 1: reversed it you were sitting in my seat, would you 203 00:12:14,160 --> 00:12:17,880 Speaker 1: not be angry. Of course I'm angry. You know, I 204 00:12:17,960 --> 00:12:19,920 Speaker 1: was twenty years old. I had to defer. He's the 205 00:12:19,960 --> 00:12:22,480 Speaker 1: one wh's gone to law school. I didn't know any difference. 206 00:12:22,480 --> 00:12:24,480 Speaker 1: I said, okay, well I won't take the stand, and 207 00:12:24,480 --> 00:12:28,000 Speaker 1: I didn't take the stand. To this day, I regret 208 00:12:28,120 --> 00:12:33,000 Speaker 1: not insisting that I take the stand. I can understand 209 00:12:33,080 --> 00:12:37,440 Speaker 1: Joe's frustration here, but in my experience, most defendants don't 210 00:12:37,480 --> 00:12:40,360 Speaker 1: take the stand. But it's always a tough call. I've 211 00:12:40,400 --> 00:12:44,239 Speaker 1: seen cases myself that were one or lost by defendants 212 00:12:44,320 --> 00:12:48,400 Speaker 1: owned testimony. As for looking angry, I certainly don't mind 213 00:12:48,480 --> 00:12:51,480 Speaker 1: a little righteous indignation. In fact, there's a place for 214 00:12:51,559 --> 00:12:54,800 Speaker 1: it in the theater that is a criminal courtroom. But 215 00:12:54,920 --> 00:12:57,520 Speaker 1: we don't want the jury to feel intimidated, and we 216 00:12:57,600 --> 00:13:01,160 Speaker 1: don't want them to feel threatened. Always consider how my 217 00:13:01,240 --> 00:13:03,960 Speaker 1: client will look and how they will sound on the stand, 218 00:13:04,240 --> 00:13:09,200 Speaker 1: especially during cross examination. It's because of that opportunity for 219 00:13:09,240 --> 00:13:13,560 Speaker 1: cross examination that the conventional wisdom says defendants should stay 220 00:13:13,600 --> 00:13:16,800 Speaker 1: off the stand and maintain and exercise their right to 221 00:13:16,840 --> 00:13:20,880 Speaker 1: remain silent. Whether or not a defendant chooses to testify 222 00:13:21,160 --> 00:13:23,760 Speaker 1: is always a decision for the defendant and for the 223 00:13:23,840 --> 00:13:29,920 Speaker 1: defendant alone. After consulting with counsel. Judges must tell juries 224 00:13:30,080 --> 00:13:33,000 Speaker 1: that defendants have a right not to testify, and if 225 00:13:33,040 --> 00:13:35,760 Speaker 1: they elect not to testify, that the jury is not 226 00:13:35,880 --> 00:13:39,040 Speaker 1: to hold that against the defendant in any way, shape 227 00:13:39,160 --> 00:13:44,080 Speaker 1: or form. Merely exercising your constitutional right to remain silent 228 00:13:44,520 --> 00:13:47,040 Speaker 1: is not the same thing as an admission of guilt, 229 00:13:47,200 --> 00:13:50,120 Speaker 1: and juries are told that they cannot treat it as such. 230 00:14:01,640 --> 00:14:04,959 Speaker 1: When Joe started explaining the eyewitness testimony in this case, 231 00:14:05,320 --> 00:14:08,080 Speaker 1: I knew we had to bring in an expert. I 232 00:14:08,120 --> 00:14:12,000 Speaker 1: have admired Dr Elizabeth loft Us for a very long time. 233 00:14:12,080 --> 00:14:14,800 Speaker 1: She is one of my personal heroes in the criminal 234 00:14:14,920 --> 00:14:18,760 Speaker 1: justice system. She is an expert in human memory and 235 00:14:18,880 --> 00:14:26,080 Speaker 1: the problems with eyewitness testimony. So I am a professor 236 00:14:26,120 --> 00:14:31,320 Speaker 1: at the University of California, Irvine, trained as a psychologist 237 00:14:31,400 --> 00:14:36,880 Speaker 1: and experimental psychologist, and my specialty is human memory, and 238 00:14:37,000 --> 00:14:41,440 Speaker 1: within the study of human memory, I have focused on 239 00:14:41,480 --> 00:14:47,080 Speaker 1: the problems of false memories or distorted memories, and in 240 00:14:47,120 --> 00:14:52,000 Speaker 1: some sense, when memory goes awry. What we know in 241 00:14:52,120 --> 00:14:56,400 Speaker 1: the field of psychology is that memory does not work 242 00:14:56,720 --> 00:15:00,480 Speaker 1: like a recording device. You don't just record the event 243 00:15:00,560 --> 00:15:04,040 Speaker 1: and play it back later. In fact, the process is 244 00:15:04,160 --> 00:15:08,920 Speaker 1: much more complex. What we are doing when we remember 245 00:15:09,000 --> 00:15:11,560 Speaker 1: something is we are often taking bits and pieces of 246 00:15:11,600 --> 00:15:19,120 Speaker 1: experience and constructing what feels like a memory. So psychologists 247 00:15:19,120 --> 00:15:23,280 Speaker 1: talk about memory is being a constructive or reconstructive process 248 00:15:23,440 --> 00:15:29,160 Speaker 1: rather than a kind of video recording process. The term 249 00:15:29,280 --> 00:15:33,640 Speaker 1: the malleability of memory is one that refers to the 250 00:15:33,800 --> 00:15:38,840 Speaker 1: idea that memory is changeable, that it can be influenced 251 00:15:38,840 --> 00:15:43,400 Speaker 1: by all kinds of things, particularly by things that happened 252 00:15:43,960 --> 00:15:49,840 Speaker 1: after some critical events is completely over. In the context 253 00:15:49,840 --> 00:15:53,520 Speaker 1: of a criminal trial, memory comes into play quite often. 254 00:15:53,680 --> 00:15:58,520 Speaker 1: So often a key issue is who committed the crime, 255 00:15:59,160 --> 00:16:02,760 Speaker 1: And often when the key issue is who committed the crime, 256 00:16:03,680 --> 00:16:06,920 Speaker 1: there is some witness or victim who might be making 257 00:16:06,920 --> 00:16:11,240 Speaker 1: an identification somebody that the victim or witness says was 258 00:16:11,320 --> 00:16:15,080 Speaker 1: present at the crime, committed the crime, or cooperated in 259 00:16:15,200 --> 00:16:19,320 Speaker 1: committing the crime in some way. That witness may be 260 00:16:19,480 --> 00:16:22,760 Speaker 1: tested in a number of ways, maybe looking at photographs, 261 00:16:22,840 --> 00:16:25,720 Speaker 1: may be going to a line up, and all of 262 00:16:25,760 --> 00:16:31,000 Speaker 1: these activities involved involved memory. And then, of course, in 263 00:16:31,240 --> 00:16:35,960 Speaker 1: other situations, key witnesses are remembering things other than who 264 00:16:36,040 --> 00:16:39,200 Speaker 1: committed the crime. They have to remember things like what 265 00:16:39,360 --> 00:16:42,760 Speaker 1: was the color of the getaway car, or maybe it's 266 00:16:42,760 --> 00:16:46,080 Speaker 1: a bar fight, and who's the first person who threw 267 00:16:46,120 --> 00:16:51,720 Speaker 1: the first punch. These are also expressions of memory, so 268 00:16:52,040 --> 00:16:55,520 Speaker 1: the accuracy of these kinds of accounts is crucial to 269 00:16:55,760 --> 00:17:01,160 Speaker 1: the resolution of a case. When in investigating the facts 270 00:17:01,160 --> 00:17:04,840 Speaker 1: of a particular case, it's pretty important to look at 271 00:17:05,040 --> 00:17:09,480 Speaker 1: whether there are opportunities where witnesses may have been influenced, 272 00:17:10,440 --> 00:17:16,000 Speaker 1: may have had their memories tampered with, even inadvertently. This 273 00:17:16,160 --> 00:17:19,720 Speaker 1: happens when witnesses talk with one another after some crime 274 00:17:19,840 --> 00:17:24,680 Speaker 1: is over. It happens when people are interrogated. Maybe they're 275 00:17:24,720 --> 00:17:28,600 Speaker 1: interrogated by an investigator who has a hypothesis or an 276 00:17:28,600 --> 00:17:34,800 Speaker 1: agenda and communicates information to the witness. Even inadvertently, they 277 00:17:34,920 --> 00:17:40,520 Speaker 1: can supply information and contaminate the memory. Say a witness 278 00:17:40,520 --> 00:17:44,359 Speaker 1: sees a kind of high publicity event and then looks 279 00:17:44,359 --> 00:17:49,399 Speaker 1: at media coverage and other witnesses or news anchors or 280 00:17:49,520 --> 00:17:54,960 Speaker 1: journalists are talking about the event. There's another opportunity for 281 00:17:55,080 --> 00:18:00,200 Speaker 1: new information to enter the consciousness of a witness. Us 282 00:18:00,240 --> 00:18:03,160 Speaker 1: to a critical case that's going to make its way 283 00:18:03,160 --> 00:18:08,200 Speaker 1: into a courtroom and to cause a change in that memory. 284 00:18:09,080 --> 00:18:12,520 Speaker 1: You know, I had one case where the officer tried 285 00:18:12,560 --> 00:18:17,119 Speaker 1: to elictit identification. The eyewitness said, no, I don't really 286 00:18:17,520 --> 00:18:21,160 Speaker 1: recognize the perpetrator in this set of photos you're showing me. 287 00:18:21,640 --> 00:18:24,440 Speaker 1: And the officer said, I see your eyes drifting down 288 00:18:24,440 --> 00:18:28,520 Speaker 1: to number six. What's going on here? Well, you can 289 00:18:28,600 --> 00:18:32,840 Speaker 1: see in this example that the officer has this idea 290 00:18:32,920 --> 00:18:37,720 Speaker 1: that it's number six. Thanks he saw the eyewitness glanced 291 00:18:37,760 --> 00:18:42,800 Speaker 1: down there, and he in the process secured an identification 292 00:18:42,880 --> 00:18:48,000 Speaker 1: of number six. That's the kind of more subtle suggestion 293 00:18:48,160 --> 00:18:51,199 Speaker 1: that that I've actually seen happen in a case I 294 00:18:51,280 --> 00:18:55,840 Speaker 1: was working on. I asked Dr Loftus what kinds of 295 00:18:55,960 --> 00:18:59,000 Speaker 1: warning signs in a case would indicate to her that 296 00:18:59,119 --> 00:19:05,320 Speaker 1: the eyewitness testimony might be faulty When it's a bit 297 00:19:05,359 --> 00:19:08,560 Speaker 1: a very very long period of time between the supposed 298 00:19:08,640 --> 00:19:12,840 Speaker 1: crime and the person reporting of memory. You don't need 299 00:19:12,880 --> 00:19:15,879 Speaker 1: a PhD to know that memory fades over time. But 300 00:19:16,600 --> 00:19:19,320 Speaker 1: what's a little bit less a matter of common senses. 301 00:19:19,400 --> 00:19:22,320 Speaker 1: As that memory is fading over these long period of time, 302 00:19:22,440 --> 00:19:27,320 Speaker 1: it becomes more and more vulnerable to contamination or suggestion. 303 00:19:28,600 --> 00:19:31,399 Speaker 1: So when I when I hear people coming forward and saying, 304 00:19:31,720 --> 00:19:34,399 Speaker 1: you know, such and such happened twenty years ago, or 305 00:19:34,440 --> 00:19:37,639 Speaker 1: thirty years ago or forty years ago, whatever, that sets 306 00:19:37,680 --> 00:19:42,720 Speaker 1: off at alarm. So the passage of time or the 307 00:19:42,800 --> 00:19:46,879 Speaker 1: presence of suggestive information that that's just a couple of factors. 308 00:19:46,880 --> 00:19:49,679 Speaker 1: But you need to worry about a lot of other things. 309 00:19:49,840 --> 00:19:56,240 Speaker 1: For example, isn't an identification that involves across race identification? 310 00:19:56,280 --> 00:19:58,760 Speaker 1: Do you have a stranger of one race trying to 311 00:19:58,840 --> 00:20:03,320 Speaker 1: identify somebody of a different race who as a stranger 312 00:20:03,480 --> 00:20:07,160 Speaker 1: not a friend. We make more mistakes when we make 313 00:20:07,200 --> 00:20:12,159 Speaker 1: those cross race identifications than same race ones. The cross 314 00:20:12,280 --> 00:20:15,720 Speaker 1: race identification problem, you know, has been at the root 315 00:20:15,800 --> 00:20:19,240 Speaker 1: of a number of these wrongful convictions, and it it's 316 00:20:19,280 --> 00:20:23,000 Speaker 1: even happened in rape cases. So people are pretty close together. 317 00:20:24,760 --> 00:20:28,280 Speaker 1: Justin Brooks, the director and co founder of the California 318 00:20:28,320 --> 00:20:31,120 Speaker 1: Innocence Project, who you heard from at the very beginning 319 00:20:31,119 --> 00:20:35,080 Speaker 1: of this episode, spoke with us about how common incorrect 320 00:20:35,119 --> 00:20:40,560 Speaker 1: eyewitness testimony actually is in exoneration cases like that of 321 00:20:40,680 --> 00:20:45,520 Speaker 1: Joe Diaz. So, first of all, there's sort of the 322 00:20:45,600 --> 00:20:49,000 Speaker 1: global causes of wrongful conviction, and you know, I put 323 00:20:49,040 --> 00:20:52,720 Speaker 1: that in the category of not having resources. You know, 324 00:20:52,800 --> 00:20:56,560 Speaker 1: poor people get wrongly convicted more than rich people, and 325 00:20:56,600 --> 00:21:00,119 Speaker 1: we know that there's racial aspects to that, and we 326 00:21:00,160 --> 00:21:05,080 Speaker 1: know that there's problems with the defense and investigation. But 327 00:21:05,200 --> 00:21:08,240 Speaker 1: what we now know is more about the actual specifics. 328 00:21:08,520 --> 00:21:10,840 Speaker 1: And it's sort of like when there's a plane crash, 329 00:21:10,960 --> 00:21:12,960 Speaker 1: we want to study the plane crash to see why 330 00:21:12,960 --> 00:21:16,080 Speaker 1: it went down. Now we're able to study the two 331 00:21:16,119 --> 00:21:20,080 Speaker 1: thousand cases of documented wrongful conviction in America, and it's 332 00:21:20,080 --> 00:21:23,879 Speaker 1: revealed some interesting things. First of all, one of the 333 00:21:23,960 --> 00:21:28,160 Speaker 1: leading causes is bad identification, and we now know that 334 00:21:28,320 --> 00:21:34,000 Speaker 1: people aren't that good at identifying people. Yet we've allowed 335 00:21:34,040 --> 00:21:39,040 Speaker 1: for centuries people to be convicted on alone witnesses testimony 336 00:21:39,080 --> 00:21:44,119 Speaker 1: of that's the person I saw commit the crime. There's 337 00:21:44,320 --> 00:21:48,360 Speaker 1: many reasons for this. It starts with just faulty memory, 338 00:21:48,560 --> 00:21:51,960 Speaker 1: people having trouble with memory, but we've learned it it 339 00:21:52,000 --> 00:21:56,200 Speaker 1: also comes from poor identification procedures. It comes from all 340 00:21:56,280 --> 00:22:01,920 Speaker 1: kinds of ways people's memories are contaminated. In California, we've 341 00:22:01,920 --> 00:22:05,120 Speaker 1: had a huge number of cases where people are wrongthly 342 00:22:05,160 --> 00:22:09,480 Speaker 1: convicted due to cross racial identifications. And I'm always talking 343 00:22:09,520 --> 00:22:12,000 Speaker 1: to lawyers about how to talk to jurors about this, 344 00:22:12,160 --> 00:22:15,679 Speaker 1: that people just aren't as good at identifying people not 345 00:22:15,800 --> 00:22:19,040 Speaker 1: of their own race. It starts right from when you're 346 00:22:19,040 --> 00:22:22,479 Speaker 1: a baby and your brain is processing how to do 347 00:22:22,520 --> 00:22:27,320 Speaker 1: facial recognition. If everyone around that baby is the same race, 348 00:22:27,880 --> 00:22:29,560 Speaker 1: but the rest of their life, they will not be 349 00:22:29,640 --> 00:22:33,159 Speaker 1: that good a cross racial identification. And it's nothing to 350 00:22:33,160 --> 00:22:34,960 Speaker 1: do with racism. It's just to do with how our 351 00:22:35,000 --> 00:22:39,080 Speaker 1: brains develop. So we've now seen, you know, in the 352 00:22:39,119 --> 00:22:43,639 Speaker 1: initial few hundred DNA exonerations, more than half of them 353 00:22:43,760 --> 00:22:48,080 Speaker 1: were based on bad identifications at trial. So there's a 354 00:22:48,119 --> 00:22:51,720 Speaker 1: lot of reasons people are wrongfully convicted. There's some we 355 00:22:51,760 --> 00:22:55,479 Speaker 1: can really make improvements, and there's others that are always 356 00:22:55,560 --> 00:22:58,240 Speaker 1: going to exist. So we just have to be cognizant 357 00:22:58,240 --> 00:23:00,280 Speaker 1: of it, and jurors have to be cogni sent of 358 00:23:00,359 --> 00:23:03,080 Speaker 1: it and be you know, highly skeptical of certain types 359 00:23:03,119 --> 00:23:07,119 Speaker 1: of evidence. That sounds an awful lot like Joe's case. 360 00:23:07,520 --> 00:23:09,600 Speaker 1: So I asked him what he thought the biggest factor 361 00:23:09,800 --> 00:23:15,280 Speaker 1: was in the juries finding him guilty. Oh, the witness identification. 362 00:23:15,320 --> 00:23:17,600 Speaker 1: There was no doubt about it. If there's one thing 363 00:23:17,640 --> 00:23:20,480 Speaker 1: that I had learned through all of this is how 364 00:23:20,600 --> 00:23:23,520 Speaker 1: race comes into play a lot of times, and how 365 00:23:23,560 --> 00:23:27,080 Speaker 1: difficult it is for people of one race to actually 366 00:23:27,119 --> 00:23:31,320 Speaker 1: identify half the capacity to identify somebody of another race, 367 00:23:31,520 --> 00:23:34,640 Speaker 1: or the errors that are made and trying to identify 368 00:23:34,680 --> 00:23:40,399 Speaker 1: somebody of another race. I identified as Hispanic. However, I 369 00:23:40,480 --> 00:23:44,119 Speaker 1: am a mix. My father's mother was Chinese, his father 370 00:23:44,200 --> 00:23:48,320 Speaker 1: was Spanish. My mother is half Spanish, half Black. I'm multiracial. 371 00:23:49,080 --> 00:23:52,200 Speaker 1: Hey believe me, as much as I've been raised with 372 00:23:52,560 --> 00:23:54,919 Speaker 1: almost every single I was raised in the hood. I 373 00:23:54,960 --> 00:23:57,600 Speaker 1: came to this country of refugee. We were poor. We 374 00:23:57,600 --> 00:23:59,879 Speaker 1: had to live in the poorest of neighborhoods, so you 375 00:24:00,240 --> 00:24:02,840 Speaker 1: congregate with all the poor folk from all over that 376 00:24:02,960 --> 00:24:06,919 Speaker 1: come in into the country. So I thought I could identify. 377 00:24:07,119 --> 00:24:10,320 Speaker 1: I can identify people, but I make a gazilitian mistakes 378 00:24:10,320 --> 00:24:13,440 Speaker 1: all the times where I'm wrong. As I look back 379 00:24:13,440 --> 00:24:17,760 Speaker 1: at my case, I realized how fallible we humans are, 380 00:24:17,760 --> 00:24:20,920 Speaker 1: how fallible our memories and our belief that we could 381 00:24:20,960 --> 00:24:24,719 Speaker 1: identify folks, and especially folks from a different culture. So 382 00:24:24,760 --> 00:24:28,320 Speaker 1: I get it, you know, I get it. At the time, 383 00:24:28,359 --> 00:24:30,639 Speaker 1: I'm like, I'm being framed. Why are you guys doing this. 384 00:24:30,760 --> 00:24:33,399 Speaker 1: You know, at the time, I didn't know what I 385 00:24:33,480 --> 00:24:36,520 Speaker 1: know now. At the time, I was just up in arms, like, 386 00:24:36,640 --> 00:24:41,200 Speaker 1: how in the world could this be? There is power, 387 00:24:41,560 --> 00:24:44,520 Speaker 1: There is so much power. And a witness go into 388 00:24:44,600 --> 00:24:47,960 Speaker 1: court and pointing a finger that a suspect and saying, yes, 389 00:24:48,000 --> 00:24:50,960 Speaker 1: he or she is the suspect. There is power in that. 390 00:24:53,840 --> 00:24:57,840 Speaker 1: After the trial concluded, the jury was sent back to deliberate, 391 00:24:58,520 --> 00:25:03,480 Speaker 1: they couldn't come to a verdict. Come Friday afternoon, they 392 00:25:03,480 --> 00:25:06,000 Speaker 1: all wanted to go home. All of a sudden, they 393 00:25:06,000 --> 00:25:09,439 Speaker 1: had a verdict and it was guilty. Joe has a 394 00:25:09,440 --> 00:25:11,600 Speaker 1: good point here, and I think there's something to his 395 00:25:11,680 --> 00:25:15,280 Speaker 1: idea that his verdict may have been rushed. Most criminal 396 00:25:15,320 --> 00:25:19,920 Speaker 1: trials seem to fit nicely within one work week. By Friday, 397 00:25:19,920 --> 00:25:23,760 Speaker 1: of course, everybody is tired. The lawyers are tired, the 398 00:25:23,840 --> 00:25:27,719 Speaker 1: parties are tired, the judge is tired. This cuts both ways. 399 00:25:28,200 --> 00:25:30,199 Speaker 1: Because a jury is ready to be done on a 400 00:25:30,240 --> 00:25:33,679 Speaker 1: Friday doesn't necessarily mean they're going to acquit somebody in 401 00:25:33,680 --> 00:25:36,840 Speaker 1: It doesn't mean they're going to convict somebody. In my 402 00:25:36,960 --> 00:25:40,320 Speaker 1: career as a prosecutor or as defense counsel, if I 403 00:25:40,359 --> 00:25:43,160 Speaker 1: have a choice. I really don't want a jury deliberating 404 00:25:43,200 --> 00:25:51,760 Speaker 1: on Friday afternoon if it can be helped. Joe was 405 00:25:51,840 --> 00:25:55,560 Speaker 1: exonerated after his release. He served nine years of a 406 00:25:55,600 --> 00:25:58,840 Speaker 1: fifteen years sentence, and it wasn't until years later that 407 00:25:58,920 --> 00:26:02,280 Speaker 1: he was declared in a by a District Attorney's Conviction 408 00:26:02,440 --> 00:26:06,760 Speaker 1: Integrity Unit, one of the strongest tools available in the 409 00:26:06,800 --> 00:26:12,200 Speaker 1: fight against wrongful incarceration. That team of investigators revisited Joe's 410 00:26:12,240 --> 00:26:15,119 Speaker 1: case after they realized that the facts of his case 411 00:26:15,440 --> 00:26:19,359 Speaker 1: that very closely with a serial rapist that had been 412 00:26:19,400 --> 00:26:25,160 Speaker 1: committing crimes in that area. Twenty eight additional victims came 413 00:26:25,240 --> 00:26:31,000 Speaker 1: forward even after Joe was in prison. My first almost 414 00:26:31,080 --> 00:26:35,399 Speaker 1: six years were spent at Solidad prison, and I was 415 00:26:35,560 --> 00:26:38,960 Speaker 1: very fortunate because I went in very angry, very bitter, 416 00:26:39,600 --> 00:26:41,879 Speaker 1: and a lot of people asked me, well, you know, 417 00:26:42,359 --> 00:26:45,040 Speaker 1: was it tough in prison? You know, were the guys 418 00:26:45,080 --> 00:26:48,160 Speaker 1: tough in there? Do you have a lot of fights? Look, 419 00:26:48,720 --> 00:26:50,960 Speaker 1: I had already grown up in the hood. I come 420 00:26:50,960 --> 00:26:54,199 Speaker 1: from a family fighters. My whole family was already raised 421 00:26:54,240 --> 00:26:58,240 Speaker 1: to be pretty uh pretty outlawish. But in all reality, 422 00:26:58,240 --> 00:26:59,960 Speaker 1: I didn't have to go into prison and try to 423 00:27:00,000 --> 00:27:01,800 Speaker 1: prove that I'm a man and try to prove that 424 00:27:01,840 --> 00:27:04,680 Speaker 1: I'm not a sex offender. I just carried my own 425 00:27:05,400 --> 00:27:09,399 Speaker 1: myself as a respectful individual. I respected unders the respected me. 426 00:27:11,160 --> 00:27:13,440 Speaker 1: But I was fortunate that the prison that I had 427 00:27:13,520 --> 00:27:16,439 Speaker 1: to land in was one of the few prisons that 428 00:27:16,560 --> 00:27:20,000 Speaker 1: had a college program. I had been railroaded, I had 429 00:27:20,000 --> 00:27:22,159 Speaker 1: been abducted from a college class. As soon as I 430 00:27:22,200 --> 00:27:24,080 Speaker 1: saw that they had a college program, I signed up. 431 00:27:25,359 --> 00:27:27,680 Speaker 1: I kept myself busy with that, and I kept myself 432 00:27:27,720 --> 00:27:30,760 Speaker 1: on the basketball court. Basketball is my passion. That's what 433 00:27:30,800 --> 00:27:33,840 Speaker 1: I did. I did the best that I could to 434 00:27:33,920 --> 00:27:37,720 Speaker 1: make sure that I could improve my life to the 435 00:27:37,760 --> 00:27:40,840 Speaker 1: best of my ability, because I mean, my life was 436 00:27:40,880 --> 00:27:44,560 Speaker 1: not mine anymore. I had succumbed to the fact that 437 00:27:44,720 --> 00:27:47,960 Speaker 1: I had to survive. I had to survive that nightmare 438 00:27:48,520 --> 00:27:52,000 Speaker 1: and not do anything stupid. I always knew that I 439 00:27:52,040 --> 00:27:54,320 Speaker 1: was putting my children first, and I knew that I 440 00:27:54,320 --> 00:27:57,639 Speaker 1: had to do what I had to do. I always 441 00:27:57,680 --> 00:28:01,720 Speaker 1: had faith. I always had faith, not in God per se. 442 00:28:01,840 --> 00:28:03,640 Speaker 1: I came to the point where I was cursing God, 443 00:28:04,480 --> 00:28:06,679 Speaker 1: but I had faith in the legal system, and I 444 00:28:06,800 --> 00:28:11,160 Speaker 1: had this blind faith and just karma that I would 445 00:28:11,160 --> 00:28:13,600 Speaker 1: be freed someday, and I said, I have to educate 446 00:28:13,640 --> 00:28:16,000 Speaker 1: myself to the best of my ability. I have to 447 00:28:16,080 --> 00:28:18,280 Speaker 1: keep my mind clear for my daughter's I have to 448 00:28:18,359 --> 00:28:21,640 Speaker 1: be there for my daughters. I didn't have a good upbringing, 449 00:28:21,720 --> 00:28:23,680 Speaker 1: but I said, you know what, at least I can 450 00:28:23,720 --> 00:28:28,159 Speaker 1: do is be a man for my daughter. And I 451 00:28:28,160 --> 00:28:31,119 Speaker 1: am so grateful for these professors that were willing to 452 00:28:31,160 --> 00:28:34,440 Speaker 1: take the drive to teach people. I would have to 453 00:28:34,480 --> 00:28:38,680 Speaker 1: believe that they believe that these people are redeemable. In 454 00:28:38,760 --> 00:28:41,800 Speaker 1: the end, Joe was exonerated and given a certificate of 455 00:28:41,800 --> 00:28:58,240 Speaker 1: innocence in April two. As we mentioned, our witness testimony 456 00:28:58,400 --> 00:29:01,040 Speaker 1: is one of the main causes of for awful conviction 457 00:29:01,160 --> 00:29:04,520 Speaker 1: in the United States. I wanted to talk with more 458 00:29:04,640 --> 00:29:08,520 Speaker 1: people about the problems with eyewitness testimony and find out 459 00:29:08,560 --> 00:29:12,440 Speaker 1: exactly what's being done to try and fix the shortfalls 460 00:29:12,520 --> 00:29:20,680 Speaker 1: of human memory. This is Judge Jed Raycle. My name 461 00:29:20,760 --> 00:29:25,040 Speaker 1: is Jed. I'm a federal history judge in what's called 462 00:29:25,080 --> 00:29:28,000 Speaker 1: the Southern District of New York, which is Manhattan and 463 00:29:28,280 --> 00:29:31,920 Speaker 1: various counties to the north. I've been a judge since 464 00:29:33,840 --> 00:29:37,120 Speaker 1: and I also teach at both Columbia Law School and 465 00:29:37,760 --> 00:29:43,000 Speaker 1: YU Law School. Eyewitness identification is among I think the 466 00:29:43,040 --> 00:29:46,920 Speaker 1: most troubling and difficult issues for the system to deal with, 467 00:29:47,240 --> 00:29:52,320 Speaker 1: because the problem is not easily effects you can, of 468 00:29:52,360 --> 00:29:57,520 Speaker 1: course make better than it is how lineups are presented, 469 00:29:58,320 --> 00:30:02,720 Speaker 1: what the police say when showing a witness of photo array, 470 00:30:02,880 --> 00:30:08,360 Speaker 1: and but the single biggest cause of this identification by 471 00:30:08,400 --> 00:30:13,240 Speaker 1: eye witnesses are things embedded deeply in the human psyche. 472 00:30:13,960 --> 00:30:18,800 Speaker 1: There are things like poor perception and poor memory. One 473 00:30:18,840 --> 00:30:23,600 Speaker 1: example is what they call merger. At the time of 474 00:30:23,640 --> 00:30:29,240 Speaker 1: the crime, you only vaguely saw the face of the perpetrator. 475 00:30:29,320 --> 00:30:31,680 Speaker 1: You were watching from a window. You didn't want to 476 00:30:31,680 --> 00:30:35,480 Speaker 1: come close because it was a weapon involved. But you 477 00:30:35,520 --> 00:30:38,880 Speaker 1: did see the face, but not that perfectly. You're then 478 00:30:39,000 --> 00:30:44,120 Speaker 1: shown a very good photo array. Thanks to computers now 479 00:30:44,400 --> 00:30:48,280 Speaker 1: the police can put together excellent photo arrays. You tell 480 00:30:48,320 --> 00:30:52,560 Speaker 1: the police, I think, and maybe this guy number three, 481 00:30:53,120 --> 00:30:56,520 Speaker 1: And you study number three, and you study all seven 482 00:30:56,560 --> 00:31:00,640 Speaker 1: of the photo array photos very carefully, and you notice 483 00:31:00,800 --> 00:31:03,880 Speaker 1: for the first time that he has a distinctive scar 484 00:31:04,480 --> 00:31:10,040 Speaker 1: on his cheek. By the time you go to testify, 485 00:31:10,280 --> 00:31:15,040 Speaker 1: which could be weeks or months later, your memory unbeknownst 486 00:31:15,040 --> 00:31:19,960 Speaker 1: to you will have merged those two, so you will 487 00:31:20,040 --> 00:31:24,040 Speaker 1: now honestly believe Oh, I always saw that he had 488 00:31:24,040 --> 00:31:27,960 Speaker 1: a scar. Well, how do you remember him? Well, I'll 489 00:31:28,000 --> 00:31:32,360 Speaker 1: never forget that scar. This is all a trick of 490 00:31:32,400 --> 00:31:37,560 Speaker 1: your own memory, unconscious. What you're really remembering is the 491 00:31:37,880 --> 00:31:41,200 Speaker 1: scar that you saw on the photo right, but your 492 00:31:41,240 --> 00:31:44,160 Speaker 1: memory now makes you think that you saw it at 493 00:31:44,200 --> 00:31:49,040 Speaker 1: the time. Perception abilities and our memory abilities are not 494 00:31:49,200 --> 00:31:52,560 Speaker 1: nearly as good as we think they are, and yet 495 00:31:53,080 --> 00:31:56,440 Speaker 1: it's very powerful evidence. And the jury has no reason 496 00:31:56,520 --> 00:32:00,600 Speaker 1: to disbelieve him because he has no more to to lie, 497 00:32:00,640 --> 00:32:04,600 Speaker 1: and he's not lying, but he's still mistaken. No one, 498 00:32:04,680 --> 00:32:09,040 Speaker 1: i think, would say that the solution is to eliminate 499 00:32:09,200 --> 00:32:14,080 Speaker 1: all eye witness identifications. That's going to extreme. To the 500 00:32:14,120 --> 00:32:18,840 Speaker 1: other side, there are times when the person who eye 501 00:32:18,880 --> 00:32:21,760 Speaker 1: witnessed as a crime has a really good view of 502 00:32:21,800 --> 00:32:25,560 Speaker 1: it and who may be the critical person in identifying 503 00:32:25,600 --> 00:32:29,320 Speaker 1: the culprit. This is a dilemma. It's one thing when 504 00:32:29,360 --> 00:32:34,080 Speaker 1: you have, like you have in some forensic sciences, imperfect 505 00:32:34,120 --> 00:32:37,880 Speaker 1: science that can be made better. Here the great the 506 00:32:37,920 --> 00:32:42,040 Speaker 1: problem is no one can change human perception ability and 507 00:32:42,120 --> 00:32:47,200 Speaker 1: human memory ability. There are two solutions that have been proposed. 508 00:32:47,960 --> 00:32:51,840 Speaker 1: One is to have judges alert the jury in the 509 00:32:51,960 --> 00:32:55,480 Speaker 1: judges instructions to the jury about some of the problems 510 00:32:55,680 --> 00:33:00,920 Speaker 1: with eyewitness identification efforts. The other is to of experts 511 00:33:01,200 --> 00:33:06,200 Speaker 1: testify about those problems when the judge says, ladies, gentlemen, 512 00:33:06,240 --> 00:33:11,760 Speaker 1: the jury please be careful about eyewitness identification. The study 513 00:33:11,840 --> 00:33:16,320 Speaker 1: suggests that the juries throughout the eyewitness identification totally there 514 00:33:16,720 --> 00:33:19,800 Speaker 1: because the message they think they're gettings I don't believe 515 00:33:19,880 --> 00:33:24,640 Speaker 1: the eyewitness. Where experts are used, and typically this would 516 00:33:24,680 --> 00:33:28,680 Speaker 1: be experts on both sides, the study suggests they cancel 517 00:33:28,720 --> 00:33:32,320 Speaker 1: each other out and they had no effect, for better 518 00:33:32,400 --> 00:33:35,680 Speaker 1: or worse. Very few cases go to trial these days. 519 00:33:36,720 --> 00:33:40,880 Speaker 1: The real action is with the prosecutors, and I think 520 00:33:41,080 --> 00:33:46,680 Speaker 1: a great deal more could be done to educate prosecutors 521 00:33:46,800 --> 00:33:51,040 Speaker 1: to the realities of human perception of memory. Then, I 522 00:33:51,080 --> 00:33:54,640 Speaker 1: think would enable them to be fairer and much more 523 00:33:54,680 --> 00:34:02,240 Speaker 1: acute in their evaluation of giving cases. I know from 524 00:34:02,240 --> 00:34:05,600 Speaker 1: my experience having worked nearly two decades as a prosecutor, 525 00:34:06,040 --> 00:34:09,520 Speaker 1: people are genuinely trying to get it right, that they 526 00:34:09,560 --> 00:34:13,319 Speaker 1: genuinely are trying to get to their best recollection, but 527 00:34:13,520 --> 00:34:18,000 Speaker 1: that we sometimes are influenced by other factors that impact memory. 528 00:34:19,280 --> 00:34:23,080 Speaker 1: Jesse Evans is a prosecutor in Georgia. I've worked with 529 00:34:23,160 --> 00:34:25,800 Speaker 1: him as a prosecutor and we've been on the other 530 00:34:25,920 --> 00:34:29,200 Speaker 1: side from one another in various cases over the years. 531 00:34:29,840 --> 00:34:33,799 Speaker 1: Throughout Jesse's years at the District Attorney's office, Jesse has 532 00:34:33,840 --> 00:34:36,920 Speaker 1: noticed some of the real problems that we know exist 533 00:34:37,040 --> 00:34:41,880 Speaker 1: with eyewitness testimony and in particular with police lineups. Jesse's 534 00:34:41,960 --> 00:34:44,800 Speaker 1: leading the charge in his office and in the state 535 00:34:44,800 --> 00:34:48,160 Speaker 1: of Georgia to try and change some procedures to help 536 00:34:48,239 --> 00:34:52,840 Speaker 1: prevent false identifications. I'm Chief Assistant District Attorney with the 537 00:34:52,880 --> 00:34:56,799 Speaker 1: Cobb County District Attorney's Office specifically on the major crimes prosecutors, 538 00:34:56,840 --> 00:34:59,000 Speaker 1: so I head up the Major Crimes Unit. We deal 539 00:34:59,080 --> 00:35:04,640 Speaker 1: mostly with homicide cases. When it comes to the prosecution 540 00:35:04,640 --> 00:35:06,319 Speaker 1: of a case, there are two things that have to 541 00:35:06,360 --> 00:35:09,480 Speaker 1: be presented in every criminal prosecution otherwise you're gonna have 542 00:35:09,520 --> 00:35:11,480 Speaker 1: a problem on appeal, and those two things are venue 543 00:35:11,520 --> 00:35:16,400 Speaker 1: and identification. We as prosecutors, in our general trial outlines, 544 00:35:16,480 --> 00:35:18,520 Speaker 1: no matter what kind of case we have, will always 545 00:35:18,520 --> 00:35:21,280 Speaker 1: have those two things listed and basically bold and caps 546 00:35:21,320 --> 00:35:24,400 Speaker 1: to make sure that we check those two boxes, you know. 547 00:35:24,480 --> 00:35:27,360 Speaker 1: Identification we need to start from the broad perspective is 548 00:35:27,360 --> 00:35:31,080 Speaker 1: a very important issue within the legal justice system. So 549 00:35:31,160 --> 00:35:35,000 Speaker 1: there may have been instances in the past where prosecutors 550 00:35:35,040 --> 00:35:39,440 Speaker 1: and police were relying oh so heavily on that eyewitness identification, 551 00:35:40,920 --> 00:35:44,400 Speaker 1: the fact that persons points to somebody, however that may be, 552 00:35:44,640 --> 00:35:46,759 Speaker 1: and says that's the person that did this, And there 553 00:35:46,800 --> 00:35:49,880 Speaker 1: are probably a lot of instances we need to, quite frankly, 554 00:35:50,040 --> 00:35:53,319 Speaker 1: modern day be very careful about where that was the 555 00:35:53,320 --> 00:35:56,560 Speaker 1: crux of the case against the criminal defendant. You'd be 556 00:35:56,640 --> 00:35:59,200 Speaker 1: hard pressed these days to find a case that's going 557 00:35:59,239 --> 00:36:02,279 Speaker 1: to rest solely on that testimony of that person that 558 00:36:02,400 --> 00:36:05,359 Speaker 1: could quite frankly be impacted by a number of other 559 00:36:05,400 --> 00:36:08,200 Speaker 1: factors that could impact whether this is an actual memory 560 00:36:08,320 --> 00:36:13,000 Speaker 1: or a case of misidentification. Modern day, we're always trying 561 00:36:13,040 --> 00:36:15,680 Speaker 1: to find corroboration of that identification. That can be cell 562 00:36:15,719 --> 00:36:19,280 Speaker 1: phone evidence, that can be geolocation analysis, that can be DNA, 563 00:36:19,400 --> 00:36:22,560 Speaker 1: that can be other forensics. I was first contacted by 564 00:36:22,640 --> 00:36:25,200 Speaker 1: local jurisdiction mary at a police department. They asked me 565 00:36:25,239 --> 00:36:29,160 Speaker 1: to attend a training and They brought in a former 566 00:36:29,160 --> 00:36:32,200 Speaker 1: detective from Chicago who was going to talk about sort 567 00:36:32,239 --> 00:36:36,400 Speaker 1: of new identification procedures that were beginning around the country. 568 00:36:36,440 --> 00:36:38,640 Speaker 1: And I'll be honest. When they contacted me and said, hey, 569 00:36:38,640 --> 00:36:42,000 Speaker 1: we're contemplating making a change, I was skeptical. I think 570 00:36:42,040 --> 00:36:44,880 Speaker 1: those of us in the criminal justice system, particularly the 571 00:36:44,920 --> 00:36:48,480 Speaker 1: prosecution side of things, have a healthy skepticism about change. 572 00:36:48,520 --> 00:36:51,360 Speaker 1: Why are we doing something? Is this an issue that's broken? 573 00:36:51,400 --> 00:36:53,319 Speaker 1: Are we trying to fix something that doesn't need to 574 00:36:53,320 --> 00:36:56,360 Speaker 1: be fixed. And I'll tell you, after participating in that 575 00:36:56,440 --> 00:36:59,080 Speaker 1: training and listen to this, I became convinced that there's 576 00:36:59,120 --> 00:37:04,920 Speaker 1: probably a better to do identification procedures. The new procedure 577 00:37:05,000 --> 00:37:07,719 Speaker 1: that is recommended and in fact is the default here 578 00:37:07,800 --> 00:37:13,880 Speaker 1: in Georgia by statute, is what we call blind sequential lineups. 579 00:37:14,080 --> 00:37:16,760 Speaker 1: Rather than looking at all six at the same time, 580 00:37:17,000 --> 00:37:19,120 Speaker 1: what happens is that a witness is asked to look 581 00:37:19,200 --> 00:37:23,120 Speaker 1: at photographs individually. One is presented to the witness, then 582 00:37:23,160 --> 00:37:25,920 Speaker 1: that photo is removed from view, Then a second is 583 00:37:25,960 --> 00:37:28,640 Speaker 1: presented to the witness, so on and so forth until 584 00:37:28,680 --> 00:37:31,759 Speaker 1: you go through, ideally all six of the photographs. That's 585 00:37:31,840 --> 00:37:35,960 Speaker 1: usually the amount that we use here. The blind component 586 00:37:36,040 --> 00:37:38,040 Speaker 1: of that is the idea that we try to do 587 00:37:38,120 --> 00:37:41,280 Speaker 1: it in a method that would allow for the presenter 588 00:37:41,560 --> 00:37:44,400 Speaker 1: of that photographic lineup to not be involved in the 589 00:37:44,440 --> 00:37:48,759 Speaker 1: investigation or to not know who the person is. I 590 00:37:48,840 --> 00:37:51,680 Speaker 1: asked Jesse if he's been able to see any changes 591 00:37:51,800 --> 00:37:56,840 Speaker 1: or improvements in their work since implementing these new identification policies. 592 00:37:58,000 --> 00:38:00,520 Speaker 1: It's a really a hard thing to gauge in terms 593 00:38:00,520 --> 00:38:03,360 Speaker 1: of statistics. Instead, what we wanted to do is just 594 00:38:03,400 --> 00:38:05,239 Speaker 1: gauge sort of the boots on the grounds, the people 595 00:38:05,280 --> 00:38:07,200 Speaker 1: that I trust, the people that I'm embedded with as 596 00:38:07,239 --> 00:38:10,600 Speaker 1: the major crimes prosecutor. I went to my homicide detectives 597 00:38:10,600 --> 00:38:12,600 Speaker 1: and I said, anecdotally, how do you feel about it, 598 00:38:12,600 --> 00:38:14,560 Speaker 1: and how do you feel about the process. Do you 599 00:38:14,600 --> 00:38:17,880 Speaker 1: feel like you're getting less identifications? And speaking with my 600 00:38:18,080 --> 00:38:20,480 Speaker 1: detectives that I trust, the anecdotes I was getting back 601 00:38:20,520 --> 00:38:22,000 Speaker 1: from them was not only do they feel like they 602 00:38:22,000 --> 00:38:25,839 Speaker 1: weren't getting significantly less identifications, they actually felt better about 603 00:38:25,880 --> 00:38:28,520 Speaker 1: the identifications they were getting because they felt like the 604 00:38:28,560 --> 00:38:33,040 Speaker 1: process was more fair. There's nobody in the criminal justice 605 00:38:33,040 --> 00:38:35,440 Speaker 1: system that wants to get it wrong, so to speak. 606 00:38:36,280 --> 00:38:38,200 Speaker 1: We're all seeking to get it right. We want to 607 00:38:38,200 --> 00:38:42,239 Speaker 1: get it right for that reason. While identification testimony can 608 00:38:42,280 --> 00:38:45,719 Speaker 1: oftentimes be very important because we're all moving towards that 609 00:38:45,760 --> 00:38:47,319 Speaker 1: goal of getting it right, we want to make sure 610 00:38:47,320 --> 00:38:49,239 Speaker 1: that it's not the only thing that we're relying on. 611 00:38:50,440 --> 00:38:52,440 Speaker 1: I can't think of an instance in my eighteen and 612 00:38:52,480 --> 00:38:55,080 Speaker 1: a half year prosecution career where I've tried a case 613 00:38:55,320 --> 00:38:59,080 Speaker 1: based solely on identification testimony. There's always gonna be some 614 00:38:59,120 --> 00:39:01,760 Speaker 1: corroborating fact, is there? Otherwise I'm gonna be very concerned 615 00:39:01,760 --> 00:39:05,239 Speaker 1: about taking that to court. And in fact, our admonition 616 00:39:05,280 --> 00:39:07,520 Speaker 1: that we give to witnesses and victims before they do 617 00:39:07,600 --> 00:39:10,480 Speaker 1: this specifically tells them that whether or not they picked 618 00:39:10,480 --> 00:39:13,120 Speaker 1: somebody out, we're going to continue on in our investigation. 619 00:39:13,200 --> 00:39:19,040 Speaker 1: And that's an accurate statement. I've been concerned with the 620 00:39:19,080 --> 00:39:22,919 Speaker 1: problems of eyewitness testimony for quite some time now, So 621 00:39:23,160 --> 00:39:25,480 Speaker 1: when we started thinking about what we wanted to do 622 00:39:25,560 --> 00:39:28,560 Speaker 1: with this show for this season and what pitfalls and 623 00:39:28,640 --> 00:39:31,720 Speaker 1: problems we wanted to talk about and to learn about 624 00:39:31,800 --> 00:39:35,120 Speaker 1: and to bring to your attention, I knew that eye 625 00:39:35,120 --> 00:39:38,239 Speaker 1: witness identification, and memory had to be on the list, 626 00:39:38,320 --> 00:39:41,440 Speaker 1: and probably at the top of the list. What I 627 00:39:41,520 --> 00:39:44,600 Speaker 1: came to find though, through these interviews with the experts 628 00:39:44,600 --> 00:39:48,000 Speaker 1: and from hearing stories like Joe's story man, I found 629 00:39:48,080 --> 00:39:51,040 Speaker 1: that these problems are even deeper and more serious than 630 00:39:51,120 --> 00:39:55,600 Speaker 1: even I knew. I have seen over and over again 631 00:39:55,719 --> 00:39:59,640 Speaker 1: just how much weight eye witness testimony carries with judges 632 00:40:00,160 --> 00:40:03,759 Speaker 1: and juries once witnesses take the stand. But it's been 633 00:40:03,800 --> 00:40:07,080 Speaker 1: known for a while in law enforcement that memory isn't 634 00:40:07,120 --> 00:40:11,040 Speaker 1: always reliable. In fact, I learned about it firsthand back 635 00:40:11,040 --> 00:40:13,279 Speaker 1: in my days at the police academy in the late 636 00:40:13,360 --> 00:40:17,080 Speaker 1: nineteen eighties. One day, I guess it was probably nineteen 637 00:40:17,120 --> 00:40:20,360 Speaker 1: eighty nine, I was in Albany, Georgia at the Regional 638 00:40:20,400 --> 00:40:23,560 Speaker 1: Police Academy. I was in a classroom with a group 639 00:40:23,600 --> 00:40:27,160 Speaker 1: of maybe twenty to twenty five students. Out of nowhere, 640 00:40:27,440 --> 00:40:30,239 Speaker 1: someone just busting the room, wearing a ski mask and 641 00:40:30,280 --> 00:40:33,360 Speaker 1: holding a handgun. This person goes straight up to the 642 00:40:33,400 --> 00:40:37,120 Speaker 1: teacher and held him up at gunpoint. At the time, 643 00:40:37,320 --> 00:40:39,480 Speaker 1: none of us were armed, so we all just sat 644 00:40:39,560 --> 00:40:43,880 Speaker 1: there stunned, and in about fifteen to twenty seconds, the 645 00:40:43,960 --> 00:40:46,879 Speaker 1: teacher handed over his wallet and keys and and other 646 00:40:46,960 --> 00:40:50,200 Speaker 1: valuables and this person in the ski mask just left 647 00:40:50,239 --> 00:40:53,720 Speaker 1: the room. We all thought we had just witnessed a real, 648 00:40:54,280 --> 00:40:57,560 Speaker 1: although pretty reckless robbery of somebody thinking that they could 649 00:40:57,600 --> 00:41:01,360 Speaker 1: actually hold up the police academy. As it turns out, 650 00:41:01,440 --> 00:41:04,480 Speaker 1: it was a lesson for us, a lesson in identification. 651 00:41:05,680 --> 00:41:08,080 Speaker 1: Everyone in the room was asked to write out a 652 00:41:08,120 --> 00:41:11,520 Speaker 1: description of the person they saw, and between the twenty 653 00:41:11,560 --> 00:41:14,480 Speaker 1: five or so students that were there, they were probably 654 00:41:14,560 --> 00:41:18,879 Speaker 1: twenty five different descriptions. They brought the person in and 655 00:41:19,080 --> 00:41:21,719 Speaker 1: lo and behold, nobody in the room was right. I 656 00:41:21,760 --> 00:41:26,440 Speaker 1: mean nobody. Things like what color of the person was wearing. 657 00:41:26,480 --> 00:41:30,000 Speaker 1: Those details were wrong, whether somebody had a hat on, 658 00:41:30,239 --> 00:41:34,120 Speaker 1: those details were wrong, very important details that you would 659 00:41:34,160 --> 00:41:37,799 Speaker 1: think would be hard to miss. And to this day, 660 00:41:37,920 --> 00:41:41,480 Speaker 1: I think about that exercise at the police Academy, I 661 00:41:41,520 --> 00:41:45,120 Speaker 1: think about just how wrong our panic human memories are, 662 00:41:46,680 --> 00:41:50,719 Speaker 1: even for people trained to identify suspects and to remember 663 00:41:50,920 --> 00:41:55,400 Speaker 1: clues to a crime. The big takeaway for all of 664 00:41:55,480 --> 00:41:58,960 Speaker 1: us was, look, we can't rely on this stuff. We 665 00:41:59,080 --> 00:42:03,120 Speaker 1: can't rely on descriptions. Perceptions alone are not enough to 666 00:42:03,200 --> 00:42:07,360 Speaker 1: solve cases. It wasn't until law school when I started 667 00:42:07,360 --> 00:42:10,600 Speaker 1: to learn about the work of Dr Elizabeth loftus that 668 00:42:10,680 --> 00:42:13,560 Speaker 1: I realized the real problems with human memory and how 669 00:42:13,600 --> 00:42:19,000 Speaker 1: they play into identifications. Not only is eyewitness identification unreliable 670 00:42:19,080 --> 00:42:24,480 Speaker 1: at best, it's oftentimes just flat out dangerous, And now 671 00:42:24,520 --> 00:42:27,440 Speaker 1: after twenty some odd years of practicing law, for me, 672 00:42:28,120 --> 00:42:30,960 Speaker 1: it's just one of the more frightening aspects of our 673 00:42:31,040 --> 00:42:35,200 Speaker 1: legal system. There are so many people like Joe who 674 00:42:35,239 --> 00:42:38,279 Speaker 1: get sent to prison on little other than what an 675 00:42:38,360 --> 00:42:43,680 Speaker 1: eyewitness tells. A jury and juries love eyewitness testimony. I 676 00:42:43,760 --> 00:42:47,480 Speaker 1: see it time and time again, juries and judges here, 677 00:42:47,520 --> 00:42:51,560 Speaker 1: how confident these witnesses are even when they're wrong. I've 678 00:42:51,600 --> 00:42:55,120 Speaker 1: seen victims and witnesses testify in court even before juries 679 00:42:55,200 --> 00:42:58,880 Speaker 1: and give details that the witness is very certain but 680 00:42:59,040 --> 00:43:03,040 Speaker 1: that are very wrong. And as we've heard from our experts, 681 00:43:03,239 --> 00:43:05,560 Speaker 1: it's not that they're lying or they're trying to do 682 00:43:05,640 --> 00:43:09,160 Speaker 1: the wrong thing. Most of the time, they genuinely want 683 00:43:09,239 --> 00:43:11,480 Speaker 1: to get it right and they think that they are right, 684 00:43:11,920 --> 00:43:14,759 Speaker 1: just like I genuinely wanted to get it right back 685 00:43:14,760 --> 00:43:18,440 Speaker 1: in the police academy. It's our brains and our perception 686 00:43:18,640 --> 00:43:22,720 Speaker 1: that change these details and make false connections that aren't 687 00:43:22,800 --> 00:43:26,600 Speaker 1: actually there. In fact, just this week, while we were 688 00:43:26,640 --> 00:43:29,520 Speaker 1: recording this episode, I had a hearing in court where 689 00:43:29,560 --> 00:43:32,839 Speaker 1: a witness was absolutely certain about something that they saw, 690 00:43:33,600 --> 00:43:37,000 Speaker 1: even though everything else about the case pointed to that 691 00:43:37,200 --> 00:43:41,399 Speaker 1: not being true. I wanted to address this issue right 692 00:43:41,440 --> 00:43:44,760 Speaker 1: off the bat, because, as Justin Brooks and Judge Raycoff 693 00:43:44,800 --> 00:43:49,719 Speaker 1: have explained, eyewitness testimony is the number one reason Innocence 694 00:43:49,800 --> 00:43:55,640 Speaker 1: Project exonorees across the nation are falsely imprisoned. I don't 695 00:43:55,640 --> 00:43:58,360 Speaker 1: think when it comes to something as serious as prison, 696 00:43:58,719 --> 00:44:02,600 Speaker 1: we should rely on some thing as malleable, as changeable 697 00:44:03,040 --> 00:44:06,680 Speaker 1: as eyewitness testimony and memories as the soul or even 698 00:44:06,719 --> 00:44:09,840 Speaker 1: the primary evidence in a case. It can be a 699 00:44:09,920 --> 00:44:13,399 Speaker 1: helpful investigative tool, don't get me wrong, but there are 700 00:44:13,680 --> 00:44:16,640 Speaker 1: so many problems associated with it that it cannot be 701 00:44:17,000 --> 00:44:20,720 Speaker 1: the reason that we send someone to jail. I'm glad 702 00:44:20,719 --> 00:44:23,799 Speaker 1: there are people like Jesse Evans and Jed Raikoff who 703 00:44:23,840 --> 00:44:27,440 Speaker 1: are out there educating police and lawyers and juries on 704 00:44:27,520 --> 00:44:31,680 Speaker 1: the problems associated with eyewitness testimony. I'm glad there are 705 00:44:31,719 --> 00:44:34,680 Speaker 1: people like Dr Loftus who can go into court as 706 00:44:34,719 --> 00:44:38,120 Speaker 1: an expert and explain this stuff to juries to prevent 707 00:44:38,280 --> 00:44:42,480 Speaker 1: more wrongful imprisonments. And I know that in my own life, 708 00:44:42,680 --> 00:44:44,840 Speaker 1: I take a good hard look at the things that 709 00:44:45,040 --> 00:44:47,120 Speaker 1: I think I might know to be true based on 710 00:44:47,200 --> 00:44:50,719 Speaker 1: my own perceptions. Maybe it's details that I think I'm 711 00:44:50,760 --> 00:44:54,319 Speaker 1: certain that I remember. I'm thinking about these things more 712 00:44:54,400 --> 00:44:58,320 Speaker 1: critically because I don't want to make any important decision 713 00:44:58,480 --> 00:45:03,160 Speaker 1: or even an accusation based on what might be faulty memory. 714 00:45:05,520 --> 00:45:07,759 Speaker 1: If you have a story about a faulty memory or 715 00:45:07,800 --> 00:45:11,480 Speaker 1: an unreliable eyewitness, we want to hear from you about it. 716 00:45:12,040 --> 00:45:15,360 Speaker 1: Give us a call at four zero four four zero 717 00:45:15,680 --> 00:45:22,319 Speaker 1: zero four four one. Next time on sworn he set 718 00:45:22,360 --> 00:45:25,160 Speaker 1: it up, making sure that all right jury was selected. 719 00:45:25,640 --> 00:45:27,760 Speaker 1: It was like from there it was just an uphill battle. 720 00:45:28,280 --> 00:45:30,719 Speaker 1: And I tell people all the time, if it had 721 00:45:30,760 --> 00:45:33,040 Speaker 1: been an all Chinese jury and it would have been 722 00:45:33,080 --> 00:45:37,480 Speaker 1: a Chinese victim, are all Mexican jury and the Mexican victim, 723 00:45:37,560 --> 00:45:42,720 Speaker 1: what are the odds? The odds are totally staticas fact 724 00:45:42,760 --> 00:45:45,000 Speaker 1: that the fact that the fact that brought out the 725 00:45:45,040 --> 00:45:48,080 Speaker 1: hair samples didn't match, but it didn't make any difference 726 00:45:48,080 --> 00:45:51,880 Speaker 1: because says that one dramatic moment when they say it's 727 00:45:51,920 --> 00:45:55,120 Speaker 1: the person that committed the crime in this court room 728 00:45:55,160 --> 00:45:59,000 Speaker 1: today and they turn around and a tear coming down 729 00:45:59,080 --> 00:46:01,440 Speaker 1: to their cheek. Let me point directly led me and 730 00:46:01,480 --> 00:46:07,960 Speaker 1: said he's the one. Sworn is a production of Tenderfoot 731 00:46:08,000 --> 00:46:12,520 Speaker 1: TV and I Heart Radio. Our lead producer is Christina Dana. 732 00:46:13,120 --> 00:46:17,719 Speaker 1: Executive producers are Payne Lindsay and Donald Albright for Tenderfoot TV, 733 00:46:18,400 --> 00:46:21,799 Speaker 1: Matt Frederick and Alex Williams for I Heart Radio, and 734 00:46:22,000 --> 00:46:27,799 Speaker 1: myself Philip Holloway. Additional production by Trevor Young, Mason Lindsay, 735 00:46:27,840 --> 00:46:32,640 Speaker 1: Mike Rooney, Jamie Albright and Halle Beadal. Original music and 736 00:46:32,640 --> 00:46:36,080 Speaker 1: sound designed by Makeup and Vanity Set. Our theme song 737 00:46:36,280 --> 00:46:39,040 Speaker 1: is Blood in the Water by Layup. Show art and 738 00:46:39,080 --> 00:46:44,280 Speaker 1: design is by Trevor Eisler, editing by Christina Dana, Mixing 739 00:46:44,320 --> 00:46:48,480 Speaker 1: and mastering by Mike Rooney and Cooper Skinner. Special thanks 740 00:46:48,560 --> 00:46:51,520 Speaker 1: to the team at I Heart Radio from u t 741 00:46:51,719 --> 00:46:56,239 Speaker 1: a or In Rosenbaum and Grace Royer, Ryan Nord and 742 00:46:56,480 --> 00:47:00,920 Speaker 1: Matthew Papa from the Nord Group that Media and Marketing 743 00:47:01,000 --> 00:47:04,800 Speaker 1: and Station sixteen. I'd also like to extend a very 744 00:47:04,800 --> 00:47:08,200 Speaker 1: personal and special thanks to all of our contributors and 745 00:47:08,280 --> 00:47:11,680 Speaker 1: guests who have helped to make all of these episodes possible. 746 00:47:12,400 --> 00:47:16,399 Speaker 1: You can find Sworn on Facebook, Twitter, and Instagram at 747 00:47:16,600 --> 00:47:20,880 Speaker 1: sworn podcast and follow me your host, Philip Holloway on 748 00:47:20,920 --> 00:47:25,440 Speaker 1: Twitter at phil Holloway e s Q. Our website is 749 00:47:25,600 --> 00:47:28,560 Speaker 1: sworn podcast dot com, and you can check out other 750 00:47:28,640 --> 00:47:34,839 Speaker 1: Tenderfoot TV podcasts at www dot tenderfoot dot tv. If 751 00:47:34,840 --> 00:47:37,680 Speaker 1: you have questions or comments, you can email us at 752 00:47:38,040 --> 00:47:42,680 Speaker 1: Sworn at tenderfoot dot tv or leave us a voicemail 753 00:47:43,200 --> 00:47:47,879 Speaker 1: at four zero four for one zero zero four four one. 754 00:47:48,640 --> 00:47:55,200 Speaker 1: As always, thanks for listening. And then I noticed you're 755 00:47:55,280 --> 00:47:57,400 Speaker 1: using the word convict and so of the word inmates. 756 00:47:57,440 --> 00:48:01,720 Speaker 1: Can you exclaim why you're doing that? I'm conscious about 757 00:48:01,719 --> 00:48:06,800 Speaker 1: the differentiation in prison. I would consider an inmate those 758 00:48:06,920 --> 00:48:10,480 Speaker 1: men will carry themselves in a manner in which they 759 00:48:10,480 --> 00:48:13,640 Speaker 1: try to curry favor with the guards, where they will 760 00:48:14,440 --> 00:48:18,759 Speaker 1: do whatever staff wants to them at the expense of 761 00:48:18,800 --> 00:48:23,239 Speaker 1: another man. A convict is a man who carries his 762 00:48:23,280 --> 00:48:28,640 Speaker 1: own excuse, the vulgarity, carries his own nutsack. He doesn't 763 00:48:28,680 --> 00:48:33,960 Speaker 1: need a gang of individuals to help him walk the prison. 764 00:48:34,080 --> 00:48:37,320 Speaker 1: He doesn't need a guard to give him an extra 765 00:48:37,520 --> 00:48:41,960 Speaker 1: pillow or whatever stupid freebees, those guys would get. I 766 00:48:42,040 --> 00:48:46,120 Speaker 1: detest any man that's already sitting in prison, currying favor 767 00:48:46,200 --> 00:48:48,839 Speaker 1: with staff at the expense of another man.