WEBVTT - Eyewitness Testimony 0:00:00.280 --> 0:00:04.760 This episode includes discussion of sexual assault. Listener discretion is 0:00:04.800 --> 0:00:10.520 advised if you will place your left hand on the 0:00:10.560 --> 0:00:14.240 Bible and raise your right hand, and please repeat after 0:00:14.320 --> 0:00:18.040 me and I do solemnly swear. The jury then titled 0:00:18.040 --> 0:00:21.040 action find the defendant guilty of the prime It makes 0:00:21.079 --> 0:00:24.840 no sense, it doesn't fit. If it doesn't fit, you 0:00:25.040 --> 0:00:27.600 must aquit. We all took the same of the office. 0:00:27.800 --> 0:00:30.760 We're all bound by that common commitment to support and 0:00:30.800 --> 0:00:34.120 defend the Constitution, to bear true faith in allegiance to 0:00:34.159 --> 0:00:37.160 the same that you faithfully discharge the duties of our office. 0:00:37.400 --> 0:00:40.680 Do you solemnly swear or affirm that the testimony you're 0:00:40.680 --> 0:00:42.920 about to give will be the truth, the whole truth, 0:00:43.000 --> 0:00:46.320 and nothing but the truth. From Tenderfoot TV and I 0:00:46.440 --> 0:00:59.920 Heart Radio, this is Sworn. I'm your host, Philip Holloway. 0:01:00.040 --> 0:01:03.960 Years ago, I heard a story about a year old 0:01:03.960 --> 0:01:07.200 woman on death row in Chicago. She was sentenced to 0:01:07.280 --> 0:01:11.120 death on a plea bargain. This made no sense to 0:01:11.200 --> 0:01:13.080 me how someone could be sentenced to death on a 0:01:13.080 --> 0:01:16.160 plea bargain. So I actually set up to meet with 0:01:16.200 --> 0:01:19.440 her on death row. She said that's what her lawyer 0:01:19.480 --> 0:01:21.240 told her to do. To plea out and that was 0:01:21.240 --> 0:01:26.000 her best chances of getting a good result, she said, 0:01:26.080 --> 0:01:31.039 and I'm innocent. I went back told my students about it, said, 0:01:31.120 --> 0:01:33.080 you know, there's this woman on death row. She says 0:01:33.120 --> 0:01:37.680 she's innocent, she's got an execution date. We worked on 0:01:37.760 --> 0:01:40.880 her case, sitting in my kitchen and going out to 0:01:40.920 --> 0:01:44.960 the crime scene and tracking down witnesses. After I got 0:01:44.959 --> 0:01:47.920 her death sentence reversed, I decided that's what I wanted 0:01:47.960 --> 0:01:51.760 to do with my life. I have her picture. I'm 0:01:51.760 --> 0:01:55.560 looking at it right now on my wall. Just sitting 0:01:55.640 --> 0:01:59.080 on death row twenty five years ago and looking at 0:01:59.120 --> 0:02:05.080 a kid sickly who went through the system without any assistance, 0:02:05.160 --> 0:02:10.040 who didn't get a trial, didn't get any investigation, was 0:02:10.080 --> 0:02:12.040 so shocking to me that that could happen in the 0:02:12.120 --> 0:02:16.160 United States of America that it just changed my entire life. 0:02:17.320 --> 0:02:20.440 And I always say there's two naive positions. One naive 0:02:20.480 --> 0:02:23.480 position is that everyone in prison is innocent. The other 0:02:23.600 --> 0:02:27.239 naive position is everyone in prison is guilty. The truth 0:02:27.360 --> 0:02:30.760 is most people in prison are guilty, and we're trying 0:02:30.760 --> 0:02:33.639 to figure out, you know, where does that line end 0:02:34.400 --> 0:02:39.400 of most Thirty years ago, I was sworn in as 0:02:39.400 --> 0:02:44.560 a deputy sheriff in South Georgia. In I passed the 0:02:44.600 --> 0:02:48.680 bar exam. I've been a prosecutor, I've been defense counsel, 0:02:49.320 --> 0:02:52.960 and I've even warned a judge's room. I've seen just 0:02:53.040 --> 0:02:56.280 about every side of the American legal system that there 0:02:56.480 --> 0:03:00.480 is to see. Last season on this show, we looked 0:03:00.480 --> 0:03:03.200 at just some of the criminal cases that caught my attention, 0:03:03.200 --> 0:03:05.760 and we highlighted a few of the issues in the 0:03:05.840 --> 0:03:09.560 system that we thought were important. Now we're taking a 0:03:09.560 --> 0:03:13.480 new approach. We're tackling the problems that run rampant in 0:03:13.480 --> 0:03:17.880 our legal system, the roadblocks, the corruption loopholes, things that 0:03:18.040 --> 0:03:22.680 cause innocent people to wind up behind bars. We're taking 0:03:22.720 --> 0:03:26.040 a good, hard look at the criminal justice system head 0:03:26.080 --> 0:03:42.400 on this season on Sworn welcome back. As I mentioned 0:03:42.400 --> 0:03:44.840 at the beginning, things are a little different this season. 0:03:45.320 --> 0:03:49.400 As a practicing criminal lawyer, former peace officer, and former prosecutor, 0:03:49.840 --> 0:03:52.120 I deal with the inner workings of the criminal justice 0:03:52.160 --> 0:03:55.920 system on a daily basis. I see how complicated and 0:03:56.040 --> 0:03:58.720 heartbreaking it can be, and I know how many people 0:03:58.760 --> 0:04:03.480 are caught unaware in horrible circumstances. Over the course of 0:04:03.520 --> 0:04:06.200 this season, We're going to look at just some of 0:04:06.240 --> 0:04:09.840 these high stakes situations, the ones that I see all 0:04:09.840 --> 0:04:12.320 the time, and we're going to hear from people who 0:04:12.320 --> 0:04:16.680 have had to live with the consequences. This show is 0:04:16.760 --> 0:04:20.839 dedicated to justice, what justice looks like, and how to 0:04:20.920 --> 0:04:24.560 find justice. We were able to work closely with people 0:04:24.600 --> 0:04:29.240 across the country who are fighting for a more perfect system. 0:04:29.279 --> 0:04:31.880 One of those people is Justin Brooks, who was the 0:04:31.960 --> 0:04:35.360 voice at the beginning of the episode. Justin serves as 0:04:35.400 --> 0:04:39.000 the current director of the California Innocence Project, and you'll 0:04:39.000 --> 0:04:42.599 be hearing from him throughout the season. But first, I 0:04:42.680 --> 0:04:45.000 want to share with you a story of a man 0:04:45.240 --> 0:04:49.120 who was wrongfully convicted based on evidence that many juries 0:04:49.560 --> 0:04:54.520 view as the gold standard I witness testimony. This man 0:04:54.640 --> 0:05:00.159 spent nine years in prison while the perpetrator remains free. 0:05:00.920 --> 0:05:04.720 When it comes to shutting some light on this nightmare 0:05:04.880 --> 0:05:08.880 that so many of us unfortunately share. I'm a walking book. 0:05:11.240 --> 0:05:16.640 The two most common contributing factors of wrongful convictions our 0:05:16.680 --> 0:05:21.520 witness smiths identification and misapplication of forensic science, and I 0:05:21.560 --> 0:05:25.280 was a victim of both of them. My name is 0:05:25.360 --> 0:05:29.279 Joe Dias. I am fifty five years old. I work 0:05:29.360 --> 0:05:34.119 in the high tech field. I'm a father four, married 0:05:34.160 --> 0:05:39.600 to a wonderful woman. As Joe mentioned, when it comes 0:05:39.600 --> 0:05:41.920 to his story, he's an open book, so we asked 0:05:42.000 --> 0:05:45.080 him to start at the beginning. I'm sitting in a 0:05:45.120 --> 0:05:48.359 college class and two plain clothes gentlemen walk up to 0:05:48.360 --> 0:05:51.080 the professor. WoT a note? Professor walks over to my desk. 0:05:51.680 --> 0:05:56.920 They walked me outside. Mind you, this was back then 0:05:56.960 --> 0:06:00.520 there was a popular show called Hidden Camera. I had 0:06:00.560 --> 0:06:02.880 a lot of friends who were you know, Francis. I 0:06:02.960 --> 0:06:05.200 figured this is this is a joke of some kind. 0:06:05.240 --> 0:06:09.080 I walk outside and one of the investigators tells the 0:06:09.120 --> 0:06:11.400 other one he looks like a jack rabbit, may want 0:06:11.400 --> 0:06:14.200 a handcuffle. So they told me to turn around and 0:06:14.200 --> 0:06:16.479 they handcuffed me. That's when I realized, okay, this is 0:06:16.480 --> 0:06:19.960 not a joke. They took me down to the police station, 0:06:20.000 --> 0:06:23.680 interrogating me for a few hours. Wanted to know where 0:06:23.680 --> 0:06:26.120 I was on certain days and if I knew of 0:06:26.160 --> 0:06:28.839 a certain school and a certain part of town. And 0:06:28.920 --> 0:06:32.800 I didn't. But nevertheless, they interrogating me for a long 0:06:32.880 --> 0:06:36.279 time and wanted to know who I knew, who owned 0:06:36.320 --> 0:06:40.480 a Volkswagen band, I said, I don't have the slightest idea. 0:06:40.960 --> 0:06:43.880 They wouldn't tell me why they were interrogating me. You're 0:06:43.880 --> 0:06:48.880 talking about it was hours that they interrogated me. It's 0:06:48.880 --> 0:06:50.599 been so long I don't recall when they've read me 0:06:50.640 --> 0:06:52.919 my rights. But you know, I spoke to the biggest 0:06:52.960 --> 0:06:55.479 mistake I ever made in my life. But again, I 0:06:55.560 --> 0:06:59.400 was a twenty year old, ignorant individual, had nothing to hide, 0:06:59.560 --> 0:07:01.640 so I was willing to talk to them because I 0:07:01.680 --> 0:07:04.720 hadn't done anything wrong. When they finally decided to take 0:07:04.760 --> 0:07:06.960 me over to the county jail, that's when they told 0:07:07.000 --> 0:07:10.000 me that I was being charged with two sexual assaults. 0:07:11.960 --> 0:07:14.240 They took me over to the jail house and I 0:07:14.280 --> 0:07:18.800 didn't see freedom again for another nine years. As I 0:07:18.880 --> 0:07:21.360 listened to his story, one of the things that I 0:07:21.400 --> 0:07:25.000 could not wrap my head around was why Joe got 0:07:25.040 --> 0:07:28.679 picked up in the first place. There were some police 0:07:28.720 --> 0:07:31.880 officers who knew my family and me from the neighborhood. 0:07:32.640 --> 0:07:34.680 You know, we were hood them, so we weren't necessarily 0:07:34.840 --> 0:07:38.040 law abiding citizens that you could just walk by and 0:07:38.440 --> 0:07:44.080 yell at and we would not react. We would throw rocks, mud, fruit, 0:07:44.160 --> 0:07:46.880 whatever was in our vicinity. At the cops and run off. 0:07:48.000 --> 0:07:50.840 These cops knew my brothers and I, and they knew 0:07:50.880 --> 0:07:53.760 that we weren't the little Saints. So one of these 0:07:53.760 --> 0:07:57.480 cops who knew me claims that when he saw the 0:07:57.720 --> 0:08:00.840 sketch of the assailant that they were looking for it, 0:08:00.840 --> 0:08:02.680 that I sort of resembled him, so he put me 0:08:02.720 --> 0:08:07.120 in the in the lineup. From a law enforcement standpoint, 0:08:07.280 --> 0:08:10.440 taking Joe into custody in a college classroom kind of 0:08:10.480 --> 0:08:13.520 makes a lot of sense. It's a contained environment. The 0:08:13.640 --> 0:08:17.520 suspect is unlikely to escape. Most college classrooms I've been 0:08:17.560 --> 0:08:19.920 in only have one way in and one way out. 0:08:20.960 --> 0:08:23.240 As for pointing him out in the first place, I'm 0:08:23.280 --> 0:08:26.120 not a fan of going on police sketches to begin 0:08:26.160 --> 0:08:30.720 an investigation. There's just so much subjectivity, first in a 0:08:30.760 --> 0:08:35.320 witness remembering what they saw, and secondly in how a 0:08:35.520 --> 0:08:39.000 sketch artist will interpret what the witnesses trying to say. 0:08:39.559 --> 0:08:41.600 I did kind of resemble the guy. I did have 0:08:41.679 --> 0:08:44.240 short hair, just like the guy. I had a mustache 0:08:44.240 --> 0:08:46.040 at the time. The guy didn't have a mustache in 0:08:46.080 --> 0:08:49.160 the in the sketch, but he sort of resembled me, 0:08:49.160 --> 0:08:50.840 you know, because the nose was kind of wide and 0:08:50.880 --> 0:08:54.520 everything that was for one of the two charges. The 0:08:54.600 --> 0:08:57.280 other guy had long, long hair, which I can't grow 0:08:57.320 --> 0:08:59.839 because my hair is currently and he had a real 0:09:00.000 --> 0:09:03.120 and he knows which I don't have. So the two 0:09:03.400 --> 0:09:07.959 composites could not have been any more different. They had 0:09:07.960 --> 0:09:11.520 shown both of those victims lineups photo lineups in the past, 0:09:11.640 --> 0:09:15.800 and neither of them could identify the the attacker. Once 0:09:15.880 --> 0:09:19.840 this officer mentioned that I look like one of those composits, 0:09:20.960 --> 0:09:24.240 Supposedly they went back to the two victims and they 0:09:24.280 --> 0:09:26.800 put my picture in the photo lineup, and that they 0:09:26.880 --> 0:09:31.240 both picked me out. I'm the second woman who was attacked. 0:09:31.240 --> 0:09:33.839 These two joggers came by and they saw her putting 0:09:33.840 --> 0:09:35.959 her clothes back on and asked her, Hey, are you okay, 0:09:35.960 --> 0:09:38.319 And she says, that guy just attacked me. He ran 0:09:38.440 --> 0:09:41.400 that way. They chased the guy down, but the guy 0:09:41.440 --> 0:09:44.360 got away. But the guy dropped a slipper and he 0:09:44.400 --> 0:09:49.040 gets away in this waltz dragging vannagant. If I'm not mistaken, 0:09:49.080 --> 0:09:50.840 they looked at the photo lineup and they both picked 0:09:50.880 --> 0:09:52.719 me out, or one of them did, and so then 0:09:52.720 --> 0:09:54.679 one of them came to court and said, yes, that's 0:09:54.760 --> 0:09:59.600 him right there. The first victim, the guy never was 0:09:59.640 --> 0:10:01.360 never able to attack her. He took her to the 0:10:01.360 --> 0:10:04.120 back of the school, and then somebody showed up with him, 0:10:04.120 --> 0:10:08.680 so he ran off. The second guy was able to 0:10:08.720 --> 0:10:12.040 attack the second victim, and in her pennies they found 0:10:12.080 --> 0:10:16.000 some a blood. Now she and her husband were both 0:10:16.080 --> 0:10:19.080 a blood. I'm oh, that should have been enough right 0:10:19.120 --> 0:10:21.520 there to say we don't you mean to go to trial. 0:10:23.320 --> 0:10:26.160 They didn't have DNA testing, but as Joe mentioned, they 0:10:26.240 --> 0:10:30.040 did have blood typing. Blood typing that didn't match Joe 0:10:30.080 --> 0:10:33.600 with the perpetrator. So I guess, in my professional opinion, 0:10:33.679 --> 0:10:35.640 I'm gonna have to agree with Joe on this one. 0:10:35.760 --> 0:10:39.120 I think the trial should have stopped there. During the trial, 0:10:39.520 --> 0:10:43.080 they brought that same forensics asperate who works for the county. 0:10:43.200 --> 0:10:46.600 They brought him into testify, and once he said yes, 0:10:46.640 --> 0:10:50.119 I found this a plus one minus that definitely excludes 0:10:50.240 --> 0:10:52.520 the suspect. It could not have been him. He's oh blood. 0:10:53.600 --> 0:10:56.360 The disciponturnity kept him under the stand for two days 0:10:56.480 --> 0:10:59.640 straight until they were able to batter him enough so 0:10:59.679 --> 0:11:02.120 that he we change his story and say, Okay, the 0:11:02.160 --> 0:11:06.199 evidence was weak and inconclusive. Well, how could it be 0:11:06.280 --> 0:11:10.080 conclusive one day and inconclusive? You know, on paper it's conclusive, 0:11:10.320 --> 0:11:13.920 but after interrogation he changes it that it was inconclusive. 0:11:15.440 --> 0:11:17.640 Joe's got a great question there, and it's one that 0:11:17.679 --> 0:11:23.000 will explore later in the season. Trial, I believe was 0:11:23.200 --> 0:11:26.320 a week or two. It was a nightmare to me. 0:11:26.400 --> 0:11:30.360 It was just a big, abstract sporting competition, you know, 0:11:30.520 --> 0:11:34.360 a verbal joust between attorneys to see who can act 0:11:34.400 --> 0:11:39.960 out the best, my attorney versus the district attorney. A 0:11:40.000 --> 0:11:42.360 lot of the times, trials can feel like that, and 0:11:42.440 --> 0:11:46.080 while it's generally best to keep relationships between defense attorneys 0:11:46.080 --> 0:11:51.080 and prosecutors friendly and professional, sometimes they can turn adversarial. 0:11:51.800 --> 0:11:54.120 There's a lot at stake, and it's not uncommon for 0:11:54.160 --> 0:11:59.120 emotions or egos to run high. And my attorney would 0:11:59.160 --> 0:12:00.520 not let me take the stand, and I'm like, I 0:12:00.520 --> 0:12:02.080 need to take the stand. I need to speak up 0:12:02.120 --> 0:12:04.880 for myself. I don't have anything to hide, and he's like, no, 0:12:05.080 --> 0:12:08.839 you look angry. I look angry. That's an understatement. What 0:12:08.840 --> 0:12:11.080 do you mean I look angry? What if the roles 0:12:11.200 --> 0:12:14.080 reversed it you were sitting in my seat, would you 0:12:14.160 --> 0:12:17.880 not be angry. Of course I'm angry. You know, I 0:12:17.960 --> 0:12:19.920 was twenty years old. I had to defer. He's the 0:12:19.960 --> 0:12:22.480 one wh's gone to law school. I didn't know any difference. 0:12:22.480 --> 0:12:24.480 I said, okay, well I won't take the stand, and 0:12:24.480 --> 0:12:28.000 I didn't take the stand. To this day, I regret 0:12:28.120 --> 0:12:33.000 not insisting that I take the stand. I can understand 0:12:33.080 --> 0:12:37.440 Joe's frustration here, but in my experience, most defendants don't 0:12:37.480 --> 0:12:40.360 take the stand. But it's always a tough call. I've 0:12:40.400 --> 0:12:44.239 seen cases myself that were one or lost by defendants 0:12:44.320 --> 0:12:48.400 owned testimony. As for looking angry, I certainly don't mind 0:12:48.480 --> 0:12:51.480 a little righteous indignation. In fact, there's a place for 0:12:51.559 --> 0:12:54.800 it in the theater that is a criminal courtroom. But 0:12:54.920 --> 0:12:57.520 we don't want the jury to feel intimidated, and we 0:12:57.600 --> 0:13:01.160 don't want them to feel threatened. Always consider how my 0:13:01.240 --> 0:13:03.960 client will look and how they will sound on the stand, 0:13:04.240 --> 0:13:09.200 especially during cross examination. It's because of that opportunity for 0:13:09.240 --> 0:13:13.560 cross examination that the conventional wisdom says defendants should stay 0:13:13.600 --> 0:13:16.800 off the stand and maintain and exercise their right to 0:13:16.840 --> 0:13:20.880 remain silent. Whether or not a defendant chooses to testify 0:13:21.160 --> 0:13:23.760 is always a decision for the defendant and for the 0:13:23.840 --> 0:13:29.920 defendant alone. After consulting with counsel. Judges must tell juries 0:13:30.080 --> 0:13:33.000 that defendants have a right not to testify, and if 0:13:33.040 --> 0:13:35.760 they elect not to testify, that the jury is not 0:13:35.880 --> 0:13:39.040 to hold that against the defendant in any way, shape 0:13:39.160 --> 0:13:44.080 or form. Merely exercising your constitutional right to remain silent 0:13:44.520 --> 0:13:47.040 is not the same thing as an admission of guilt, 0:13:47.200 --> 0:13:50.120 and juries are told that they cannot treat it as such. 0:14:01.640 --> 0:14:04.959 When Joe started explaining the eyewitness testimony in this case, 0:14:05.320 --> 0:14:08.080 I knew we had to bring in an expert. I 0:14:08.120 --> 0:14:12.000 have admired Dr Elizabeth loft Us for a very long time. 0:14:12.080 --> 0:14:14.800 She is one of my personal heroes in the criminal 0:14:14.920 --> 0:14:18.760 justice system. She is an expert in human memory and 0:14:18.880 --> 0:14:26.080 the problems with eyewitness testimony. So I am a professor 0:14:26.120 --> 0:14:31.320 at the University of California, Irvine, trained as a psychologist 0:14:31.400 --> 0:14:36.880 and experimental psychologist, and my specialty is human memory, and 0:14:37.000 --> 0:14:41.440 within the study of human memory, I have focused on 0:14:41.480 --> 0:14:47.080 the problems of false memories or distorted memories, and in 0:14:47.120 --> 0:14:52.000 some sense, when memory goes awry. What we know in 0:14:52.120 --> 0:14:56.400 the field of psychology is that memory does not work 0:14:56.720 --> 0:15:00.480 like a recording device. You don't just record the event 0:15:00.560 --> 0:15:04.040 and play it back later. In fact, the process is 0:15:04.160 --> 0:15:08.920 much more complex. What we are doing when we remember 0:15:09.000 --> 0:15:11.560 something is we are often taking bits and pieces of 0:15:11.600 --> 0:15:19.120 experience and constructing what feels like a memory. So psychologists 0:15:19.120 --> 0:15:23.280 talk about memory is being a constructive or reconstructive process 0:15:23.440 --> 0:15:29.160 rather than a kind of video recording process. The term 0:15:29.280 --> 0:15:33.640 the malleability of memory is one that refers to the 0:15:33.800 --> 0:15:38.840 idea that memory is changeable, that it can be influenced 0:15:38.840 --> 0:15:43.400 by all kinds of things, particularly by things that happened 0:15:43.960 --> 0:15:49.840 after some critical events is completely over. In the context 0:15:49.840 --> 0:15:53.520 of a criminal trial, memory comes into play quite often. 0:15:53.680 --> 0:15:58.520 So often a key issue is who committed the crime, 0:15:59.160 --> 0:16:02.760 And often when the key issue is who committed the crime, 0:16:03.680 --> 0:16:06.920 there is some witness or victim who might be making 0:16:06.920 --> 0:16:11.240 an identification somebody that the victim or witness says was 0:16:11.320 --> 0:16:15.080 present at the crime, committed the crime, or cooperated in 0:16:15.200 --> 0:16:19.320 committing the crime in some way. That witness may be 0:16:19.480 --> 0:16:22.760 tested in a number of ways, maybe looking at photographs, 0:16:22.840 --> 0:16:25.720 may be going to a line up, and all of 0:16:25.760 --> 0:16:31.000 these activities involved involved memory. And then, of course, in 0:16:31.240 --> 0:16:35.960 other situations, key witnesses are remembering things other than who 0:16:36.040 --> 0:16:39.200 committed the crime. They have to remember things like what 0:16:39.360 --> 0:16:42.760 was the color of the getaway car, or maybe it's 0:16:42.760 --> 0:16:46.080 a bar fight, and who's the first person who threw 0:16:46.120 --> 0:16:51.720 the first punch. These are also expressions of memory, so 0:16:52.040 --> 0:16:55.520 the accuracy of these kinds of accounts is crucial to 0:16:55.760 --> 0:17:01.160 the resolution of a case. When in investigating the facts 0:17:01.160 --> 0:17:04.840 of a particular case, it's pretty important to look at 0:17:05.040 --> 0:17:09.480 whether there are opportunities where witnesses may have been influenced, 0:17:10.440 --> 0:17:16.000 may have had their memories tampered with, even inadvertently. This 0:17:16.160 --> 0:17:19.720 happens when witnesses talk with one another after some crime 0:17:19.840 --> 0:17:24.680 is over. It happens when people are interrogated. Maybe they're 0:17:24.720 --> 0:17:28.600 interrogated by an investigator who has a hypothesis or an 0:17:28.600 --> 0:17:34.800 agenda and communicates information to the witness. Even inadvertently, they 0:17:34.920 --> 0:17:40.520 can supply information and contaminate the memory. Say a witness 0:17:40.520 --> 0:17:44.359 sees a kind of high publicity event and then looks 0:17:44.359 --> 0:17:49.399 at media coverage and other witnesses or news anchors or 0:17:49.520 --> 0:17:54.960 journalists are talking about the event. There's another opportunity for 0:17:55.080 --> 0:18:00.200 new information to enter the consciousness of a witness. Us 0:18:00.240 --> 0:18:03.160 to a critical case that's going to make its way 0:18:03.160 --> 0:18:08.200 into a courtroom and to cause a change in that memory. 0:18:09.080 --> 0:18:12.520 You know, I had one case where the officer tried 0:18:12.560 --> 0:18:17.119 to elictit identification. The eyewitness said, no, I don't really 0:18:17.520 --> 0:18:21.160 recognize the perpetrator in this set of photos you're showing me. 0:18:21.640 --> 0:18:24.440 And the officer said, I see your eyes drifting down 0:18:24.440 --> 0:18:28.520 to number six. What's going on here? Well, you can 0:18:28.600 --> 0:18:32.840 see in this example that the officer has this idea 0:18:32.920 --> 0:18:37.720 that it's number six. Thanks he saw the eyewitness glanced 0:18:37.760 --> 0:18:42.800 down there, and he in the process secured an identification 0:18:42.880 --> 0:18:48.000 of number six. That's the kind of more subtle suggestion 0:18:48.160 --> 0:18:51.199 that that I've actually seen happen in a case I 0:18:51.280 --> 0:18:55.840 was working on. I asked Dr Loftus what kinds of 0:18:55.960 --> 0:18:59.000 warning signs in a case would indicate to her that 0:18:59.119 --> 0:19:05.320 the eyewitness testimony might be faulty When it's a bit 0:19:05.359 --> 0:19:08.560 a very very long period of time between the supposed 0:19:08.640 --> 0:19:12.840 crime and the person reporting of memory. You don't need 0:19:12.880 --> 0:19:15.879 a PhD to know that memory fades over time. But 0:19:16.600 --> 0:19:19.320 what's a little bit less a matter of common senses. 0:19:19.400 --> 0:19:22.320 As that memory is fading over these long period of time, 0:19:22.440 --> 0:19:27.320 it becomes more and more vulnerable to contamination or suggestion. 0:19:28.600 --> 0:19:31.399 So when I when I hear people coming forward and saying, 0:19:31.720 --> 0:19:34.399 you know, such and such happened twenty years ago, or 0:19:34.440 --> 0:19:37.639 thirty years ago or forty years ago, whatever, that sets 0:19:37.680 --> 0:19:42.720 off at alarm. So the passage of time or the 0:19:42.800 --> 0:19:46.879 presence of suggestive information that that's just a couple of factors. 0:19:46.880 --> 0:19:49.679 But you need to worry about a lot of other things. 0:19:49.840 --> 0:19:56.240 For example, isn't an identification that involves across race identification? 0:19:56.280 --> 0:19:58.760 Do you have a stranger of one race trying to 0:19:58.840 --> 0:20:03.320 identify somebody of a different race who as a stranger 0:20:03.480 --> 0:20:07.160 not a friend. We make more mistakes when we make 0:20:07.200 --> 0:20:12.159 those cross race identifications than same race ones. The cross 0:20:12.280 --> 0:20:15.720 race identification problem, you know, has been at the root 0:20:15.800 --> 0:20:19.240 of a number of these wrongful convictions, and it it's 0:20:19.280 --> 0:20:23.000 even happened in rape cases. So people are pretty close together. 0:20:24.760 --> 0:20:28.280 Justin Brooks, the director and co founder of the California 0:20:28.320 --> 0:20:31.120 Innocence Project, who you heard from at the very beginning 0:20:31.119 --> 0:20:35.080 of this episode, spoke with us about how common incorrect 0:20:35.119 --> 0:20:40.560 eyewitness testimony actually is in exoneration cases like that of 0:20:40.680 --> 0:20:45.520 Joe Diaz. So, first of all, there's sort of the 0:20:45.600 --> 0:20:49.000 global causes of wrongful conviction, and you know, I put 0:20:49.040 --> 0:20:52.720 that in the category of not having resources. You know, 0:20:52.800 --> 0:20:56.560 poor people get wrongly convicted more than rich people, and 0:20:56.600 --> 0:21:00.119 we know that there's racial aspects to that, and we 0:21:00.160 --> 0:21:05.080 know that there's problems with the defense and investigation. But 0:21:05.200 --> 0:21:08.240 what we now know is more about the actual specifics. 0:21:08.520 --> 0:21:10.840 And it's sort of like when there's a plane crash, 0:21:10.960 --> 0:21:12.960 we want to study the plane crash to see why 0:21:12.960 --> 0:21:16.080 it went down. Now we're able to study the two 0:21:16.119 --> 0:21:20.080 thousand cases of documented wrongful conviction in America, and it's 0:21:20.080 --> 0:21:23.879 revealed some interesting things. First of all, one of the 0:21:23.960 --> 0:21:28.160 leading causes is bad identification, and we now know that 0:21:28.320 --> 0:21:34.000 people aren't that good at identifying people. Yet we've allowed 0:21:34.040 --> 0:21:39.040 for centuries people to be convicted on alone witnesses testimony 0:21:39.080 --> 0:21:44.119 of that's the person I saw commit the crime. There's 0:21:44.320 --> 0:21:48.360 many reasons for this. It starts with just faulty memory, 0:21:48.560 --> 0:21:51.960 people having trouble with memory, but we've learned it it 0:21:52.000 --> 0:21:56.200 also comes from poor identification procedures. It comes from all 0:21:56.280 --> 0:22:01.920 kinds of ways people's memories are contaminated. In California, we've 0:22:01.920 --> 0:22:05.120 had a huge number of cases where people are wrongthly 0:22:05.160 --> 0:22:09.480 convicted due to cross racial identifications. And I'm always talking 0:22:09.520 --> 0:22:12.000 to lawyers about how to talk to jurors about this, 0:22:12.160 --> 0:22:15.679 that people just aren't as good at identifying people not 0:22:15.800 --> 0:22:19.040 of their own race. It starts right from when you're 0:22:19.040 --> 0:22:22.479 a baby and your brain is processing how to do 0:22:22.520 --> 0:22:27.320 facial recognition. If everyone around that baby is the same race, 0:22:27.880 --> 0:22:29.560 but the rest of their life, they will not be 0:22:29.640 --> 0:22:33.159 that good a cross racial identification. And it's nothing to 0:22:33.160 --> 0:22:34.960 do with racism. It's just to do with how our 0:22:35.000 --> 0:22:39.080 brains develop. So we've now seen, you know, in the 0:22:39.119 --> 0:22:43.639 initial few hundred DNA exonerations, more than half of them 0:22:43.760 --> 0:22:48.080 were based on bad identifications at trial. So there's a 0:22:48.119 --> 0:22:51.720 lot of reasons people are wrongfully convicted. There's some we 0:22:51.760 --> 0:22:55.479 can really make improvements, and there's others that are always 0:22:55.560 --> 0:22:58.240 going to exist. So we just have to be cognizant 0:22:58.240 --> 0:23:00.280 of it, and jurors have to be cogni sent of 0:23:00.359 --> 0:23:03.080 it and be you know, highly skeptical of certain types 0:23:03.119 --> 0:23:07.119 of evidence. That sounds an awful lot like Joe's case. 0:23:07.520 --> 0:23:09.600 So I asked him what he thought the biggest factor 0:23:09.800 --> 0:23:15.280 was in the juries finding him guilty. Oh, the witness identification. 0:23:15.320 --> 0:23:17.600 There was no doubt about it. If there's one thing 0:23:17.640 --> 0:23:20.480 that I had learned through all of this is how 0:23:20.600 --> 0:23:23.520 race comes into play a lot of times, and how 0:23:23.560 --> 0:23:27.080 difficult it is for people of one race to actually 0:23:27.119 --> 0:23:31.320 identify half the capacity to identify somebody of another race, 0:23:31.520 --> 0:23:34.640 or the errors that are made and trying to identify 0:23:34.680 --> 0:23:40.399 somebody of another race. I identified as Hispanic. However, I 0:23:40.480 --> 0:23:44.119 am a mix. My father's mother was Chinese, his father 0:23:44.200 --> 0:23:48.320 was Spanish. My mother is half Spanish, half Black. I'm multiracial. 0:23:49.080 --> 0:23:52.200 Hey believe me, as much as I've been raised with 0:23:52.560 --> 0:23:54.919 almost every single I was raised in the hood. I 0:23:54.960 --> 0:23:57.600 came to this country of refugee. We were poor. We 0:23:57.600 --> 0:23:59.879 had to live in the poorest of neighborhoods, so you 0:24:00.240 --> 0:24:02.840 congregate with all the poor folk from all over that 0:24:02.960 --> 0:24:06.919 come in into the country. So I thought I could identify. 0:24:07.119 --> 0:24:10.320 I can identify people, but I make a gazilitian mistakes 0:24:10.320 --> 0:24:13.440 all the times where I'm wrong. As I look back 0:24:13.440 --> 0:24:17.760 at my case, I realized how fallible we humans are, 0:24:17.760 --> 0:24:20.920 how fallible our memories and our belief that we could 0:24:20.960 --> 0:24:24.719 identify folks, and especially folks from a different culture. So 0:24:24.760 --> 0:24:28.320 I get it, you know, I get it. At the time, 0:24:28.359 --> 0:24:30.639 I'm like, I'm being framed. Why are you guys doing this. 0:24:30.760 --> 0:24:33.399 You know, at the time, I didn't know what I 0:24:33.480 --> 0:24:36.520 know now. At the time, I was just up in arms, like, 0:24:36.640 --> 0:24:41.200 how in the world could this be? There is power, 0:24:41.560 --> 0:24:44.520 There is so much power. And a witness go into 0:24:44.600 --> 0:24:47.960 court and pointing a finger that a suspect and saying, yes, 0:24:48.000 --> 0:24:50.960 he or she is the suspect. There is power in that. 0:24:53.840 --> 0:24:57.840 After the trial concluded, the jury was sent back to deliberate, 0:24:58.520 --> 0:25:03.480 they couldn't come to a verdict. Come Friday afternoon, they 0:25:03.480 --> 0:25:06.000 all wanted to go home. All of a sudden, they 0:25:06.000 --> 0:25:09.439 had a verdict and it was guilty. Joe has a 0:25:09.440 --> 0:25:11.600 good point here, and I think there's something to his 0:25:11.680 --> 0:25:15.280 idea that his verdict may have been rushed. Most criminal 0:25:15.320 --> 0:25:19.920 trials seem to fit nicely within one work week. By Friday, 0:25:19.920 --> 0:25:23.760 of course, everybody is tired. The lawyers are tired, the 0:25:23.840 --> 0:25:27.719 parties are tired, the judge is tired. This cuts both ways. 0:25:28.200 --> 0:25:30.199 Because a jury is ready to be done on a 0:25:30.240 --> 0:25:33.679 Friday doesn't necessarily mean they're going to acquit somebody in 0:25:33.680 --> 0:25:36.840