Speaker 1: This episode includes discussion of sexual assault. Listener discretion is
Speaker 1: advised if you will place your left hand on the
Speaker 1: Bible and raise your right hand, and please repeat after
Speaker 1: me and I do solemnly swear. The jury then titled
Speaker 1: action find the defendant guilty of the prime It makes
Speaker 1: no sense, it doesn't fit. If it doesn't fit, you
Speaker 1: must aquit. We all took the same of the office.
Speaker 1: We're all bound by that common commitment to support and
Speaker 1: defend the Constitution, to bear true faith in allegiance to
Speaker 1: the same that you faithfully discharge the duties of our office.
Speaker 1: Do you solemnly swear or affirm that the testimony you're
Speaker 1: about to give will be the truth, the whole truth,
Speaker 1: and nothing but the truth. From Tenderfoot TV and I
Speaker 1: Heart Radio, this is Sworn. I'm your host, Philip Holloway.
Speaker 1: Years ago, I heard a story about a year old
Speaker 1: woman on death row in Chicago. She was sentenced to
Speaker 1: death on a plea bargain. This made no sense to
Speaker 1: me how someone could be sentenced to death on a
Speaker 1: plea bargain. So I actually set up to meet with
Speaker 1: her on death row. She said that's what her lawyer
Speaker 1: told her to do. To plea out and that was
Speaker 1: her best chances of getting a good result, she said,
Speaker 1: and I'm innocent. I went back told my students about it, said,
Speaker 1: you know, there's this woman on death row. She says
Speaker 1: she's innocent, she's got an execution date. We worked on
Speaker 1: her case, sitting in my kitchen and going out to
Speaker 1: the crime scene and tracking down witnesses. After I got
Speaker 1: her death sentence reversed, I decided that's what I wanted
Speaker 1: to do with my life. I have her picture. I'm
Speaker 1: looking at it right now on my wall. Just sitting
Speaker 1: on death row twenty five years ago and looking at
Speaker 1: a kid sickly who went through the system without any assistance,
Speaker 1: who didn't get a trial, didn't get any investigation, was
Speaker 1: so shocking to me that that could happen in the
Speaker 1: United States of America that it just changed my entire life.
Speaker 1: And I always say there's two naive positions. One naive
Speaker 1: position is that everyone in prison is innocent. The other
Speaker 1: naive position is everyone in prison is guilty. The truth
Speaker 1: is most people in prison are guilty, and we're trying
Speaker 1: to figure out, you know, where does that line end
Speaker 1: of most Thirty years ago, I was sworn in as
Speaker 1: a deputy sheriff in South Georgia. In I passed the
Speaker 1: bar exam. I've been a prosecutor, I've been defense counsel,
Speaker 1: and I've even warned a judge's room. I've seen just
Speaker 1: about every side of the American legal system that there
Speaker 1: is to see. Last season on this show, we looked
Speaker 1: at just some of the criminal cases that caught my attention,
Speaker 1: and we highlighted a few of the issues in the
Speaker 1: system that we thought were important. Now we're taking a
Speaker 1: new approach. We're tackling the problems that run rampant in
Speaker 1: our legal system, the roadblocks, the corruption loopholes, things that
Speaker 1: cause innocent people to wind up behind bars. We're taking
Speaker 1: a good, hard look at the criminal justice system head
Speaker 1: on this season on Sworn welcome back. As I mentioned
Speaker 1: at the beginning, things are a little different this season.
Speaker 1: As a practicing criminal lawyer, former peace officer, and former prosecutor,
Speaker 1: I deal with the inner workings of the criminal justice
Speaker 1: system on a daily basis. I see how complicated and
Speaker 1: heartbreaking it can be, and I know how many people
Speaker 1: are caught unaware in horrible circumstances. Over the course of
Speaker 1: this season, We're going to look at just some of
Speaker 1: these high stakes situations, the ones that I see all
Speaker 1: the time, and we're going to hear from people who
Speaker 1: have had to live with the consequences. This show is
Speaker 1: dedicated to justice, what justice looks like, and how to
Speaker 1: find justice. We were able to work closely with people
Speaker 1: across the country who are fighting for a more perfect system.
Speaker 1: One of those people is Justin Brooks, who was the
Speaker 1: voice at the beginning of the episode. Justin serves as
Speaker 1: the current director of the California Innocence Project, and you'll
Speaker 1: be hearing from him throughout the season. But first, I
Speaker 1: want to share with you a story of a man
Speaker 1: who was wrongfully convicted based on evidence that many juries
Speaker 1: view as the gold standard I witness testimony. This man
Speaker 1: spent nine years in prison while the perpetrator remains free.
Speaker 1: When it comes to shutting some light on this nightmare
Speaker 1: that so many of us unfortunately share. I'm a walking book.
Speaker 1: The two most common contributing factors of wrongful convictions our
Speaker 1: witness smiths identification and misapplication of forensic science, and I
Speaker 1: was a victim of both of them. My name is
Speaker 1: Joe Dias. I am fifty five years old. I work
Speaker 1: in the high tech field. I'm a father four, married
Speaker 1: to a wonderful woman. As Joe mentioned, when it comes
Speaker 1: to his story, he's an open book, so we asked
Speaker 1: him to start at the beginning. I'm sitting in a
Speaker 1: college class and two plain clothes gentlemen walk up to
Speaker 1: the professor. WoT a note? Professor walks over to my desk.
Speaker 1: They walked me outside. Mind you, this was back then
Speaker 1: there was a popular show called Hidden Camera. I had
Speaker 1: a lot of friends who were you know, Francis. I
Speaker 1: figured this is this is a joke of some kind.
Speaker 1: I walk outside and one of the investigators tells the
Speaker 1: other one he looks like a jack rabbit, may want
Speaker 1: a handcuffle. So they told me to turn around and
Speaker 1: they handcuffed me. That's when I realized, okay, this is
Speaker 1: not a joke. They took me down to the police station,
Speaker 1: interrogating me for a few hours. Wanted to know where
Speaker 1: I was on certain days and if I knew of
Speaker 1: a certain school and a certain part of town. And
Speaker 1: I didn't. But nevertheless, they interrogating me for a long
Speaker 1: time and wanted to know who I knew, who owned
Speaker 1: a Volkswagen band, I said, I don't have the slightest idea.
Speaker 1: They wouldn't tell me why they were interrogating me. You're
Speaker 1: talking about it was hours that they interrogated me. It's
Speaker 1: been so long I don't recall when they've read me
Speaker 1: my rights. But you know, I spoke to the biggest
Speaker 1: mistake I ever made in my life. But again, I
Speaker 1: was a twenty year old, ignorant individual, had nothing to hide,
Speaker 1: so I was willing to talk to them because I
Speaker 1: hadn't done anything wrong. When they finally decided to take
Speaker 1: me over to the county jail, that's when they told
Speaker 1: me that I was being charged with two sexual assaults.
Speaker 1: They took me over to the jail house and I
Speaker 1: didn't see freedom again for another nine years. As I
Speaker 1: listened to his story, one of the things that I
Speaker 1: could not wrap my head around was why Joe got
Speaker 1: picked up in the first place. There were some police
Speaker 1: officers who knew my family and me from the neighborhood.
Speaker 1: You know, we were hood them, so we weren't necessarily
Speaker 1: law abiding citizens that you could just walk by and
Speaker 1: yell at and we would not react. We would throw rocks, mud, fruit,
Speaker 1: whatever was in our vicinity. At the cops and run off.
Speaker 1: These cops knew my brothers and I, and they knew
Speaker 1: that we weren't the little Saints. So one of these
Speaker 1: cops who knew me claims that when he saw the
Speaker 1: sketch of the assailant that they were looking for it,
Speaker 1: that I sort of resembled him, so he put me
Speaker 1: in the in the lineup. From a law enforcement standpoint,
Speaker 1: taking Joe into custody in a college classroom kind of
Speaker 1: makes a lot of sense. It's a contained environment. The
Speaker 1: suspect is unlikely to escape. Most college classrooms I've been
Speaker 1: in only have one way in and one way out.
Speaker 1: As for pointing him out in the first place, I'm
Speaker 1: not a fan of going on police sketches to begin
Speaker 1: an investigation. There's just so much subjectivity, first in a
Speaker 1: witness remembering what they saw, and secondly in how a
Speaker 1: sketch artist will interpret what the witnesses trying to say.
Speaker 1: I did kind of resemble the guy. I did have
Speaker 1: short hair, just like the guy. I had a mustache
Speaker 1: at the time. The guy didn't have a mustache in
Speaker 1: the in the sketch, but he sort of resembled me,
Speaker 1: you know, because the nose was kind of wide and
Speaker 1: everything that was for one of the two charges. The
Speaker 1: other guy had long, long hair, which I can't grow
Speaker 1: because my hair is currently and he had a real
Speaker 1: and he knows which I don't have. So the two
Speaker 1: composites could not have been any more different. They had
Speaker 1: shown both of those victims lineups photo lineups in the past,
Speaker 1: and neither of them could identify the the attacker. Once
Speaker 1: this officer mentioned that I look like one of those composits,
Speaker 1: Supposedly they went back to the two victims and they
Speaker 1: put my picture in the photo lineup, and that they
Speaker 1: both picked me out. I'm the second woman who was attacked.
Speaker 1: These two joggers came by and they saw her putting
Speaker 1: her clothes back on and asked her, Hey, are you okay,
Speaker 1: And she says, that guy just attacked me. He ran
Speaker 1: that way. They chased the guy down, but the guy
Speaker 1: got away. But the guy dropped a slipper and he
Speaker 1: gets away in this waltz dragging vannagant. If I'm not mistaken,
Speaker 1: they looked at the photo lineup and they both picked
Speaker 1: me out, or one of them did, and so then
Speaker 1: one of them came to court and said, yes, that's
Speaker 1: him right there. The first victim, the guy never was
Speaker 1: never able to attack her. He took her to the
Speaker 1: back of the school, and then somebody showed up with him,
Speaker 1: so he ran off. The second guy was able to
Speaker 1: attack the second victim, and in her pennies they found
Speaker 1: some a blood. Now she and her husband were both
Speaker 1: a blood. I'm oh, that should have been enough right
Speaker 1: there to say we don't you mean to go to trial.
Speaker 1: They didn't have DNA testing, but as Joe mentioned, they
Speaker 1: did have blood typing. Blood typing that didn't match Joe
Speaker 1: with the perpetrator. So I guess, in my professional opinion,
Speaker 1: I'm gonna have to agree with Joe on this one.
Speaker 1: I think the trial should have stopped there. During the trial,
Speaker 1: they brought that same forensics asperate who works for the county.
Speaker 1: They brought him into testify, and once he said yes,
Speaker 1: I found this a plus one minus that definitely excludes
Speaker 1: the suspect. It could not have been him. He's oh blood.
Speaker 1: The disciponturnity kept him under the stand for two days
Speaker 1: straight until they were able to batter him enough so
Speaker 1: that he we change his story and say, Okay, the
Speaker 1: evidence was weak and inconclusive. Well, how could it be
Speaker 1: conclusive one day and inconclusive? You know, on paper it's conclusive,
Speaker 1: but after interrogation he changes it that it was inconclusive.
Speaker 1: Joe's got a great question there, and it's one that
Speaker 1: will explore later in the season. Trial, I believe was
Speaker 1: a week or two. It was a nightmare to me.
Speaker 1: It was just a big, abstract sporting competition, you know,
Speaker 1: a verbal joust between attorneys to see who can act
Speaker 1: out the best, my attorney versus the district attorney. A
Speaker 1: lot of the times, trials can feel like that, and
Speaker 1: while it's generally best to keep relationships between defense attorneys
Speaker 1: and prosecutors friendly and professional, sometimes they can turn adversarial.
Speaker 1: There's a lot at stake, and it's not uncommon for
Speaker 1: emotions or egos to run high. And my attorney would
Speaker 1: not let me take the stand, and I'm like, I
Speaker 1: need to take the stand. I need to speak up
Speaker 1: for myself. I don't have anything to hide, and he's like, no,
Speaker 1: you look angry. I look angry. That's an understatement. What
Speaker 1: do you mean I look angry? What if the roles
Speaker 1: reversed it you were sitting in my seat, would you
Speaker 1: not be angry. Of course I'm angry. You know, I
Speaker 1: was twenty years old. I had to defer. He's the
Speaker 1: one wh's gone to law school. I didn't know any difference.
Speaker 1: I said, okay, well I won't take the stand, and
Speaker 1: I didn't take the stand. To this day, I regret
Speaker 1: not insisting that I take the stand. I can understand
Speaker 1: Joe's frustration here, but in my experience, most defendants don't
Speaker 1: take the stand. But it's always a tough call. I've
Speaker 1: seen cases myself that were one or lost by defendants
Speaker 1: owned testimony. As for looking angry, I certainly don't mind
Speaker 1: a little righteous indignation. In fact, there's a place for
Speaker 1: it in the theater that is a criminal courtroom. But
Speaker 1: we don't want the jury to feel intimidated, and we
Speaker 1: don't want them to feel threatened. Always consider how my
Speaker 1: client will look and how they will sound on the stand,
Speaker 1: especially during cross examination. It's because of that opportunity for
Speaker 1: cross examination that the conventional wisdom says defendants should stay
Speaker 1: off the stand and maintain and exercise their right to
Speaker 1: remain silent. Whether or not a defendant chooses to testify
Speaker 1: is always a decision for the defendant and for the
Speaker 1: defendant alone. After consulting with counsel. Judges must tell juries
Speaker 1: that defendants have a right not to testify, and if
Speaker 1: they elect not to testify, that the jury is not
Speaker 1: to hold that against the defendant in any way, shape
Speaker 1: or form. Merely exercising your constitutional right to remain silent
Speaker 1: is not the same thing as an admission of guilt,
Speaker 1: and juries are told that they cannot treat it as such.
Speaker 1: When Joe started explaining the eyewitness testimony in this case,
Speaker 1: I knew we had to bring in an expert. I
Speaker 1: have admired Dr Elizabeth loft Us for a very long time.
Speaker 1: She is one of my personal heroes in the criminal
Speaker 1: justice system. She is an expert in human memory and
Speaker 1: the problems with eyewitness testimony. So I am a professor
Speaker 1: at the University of California, Irvine, trained as a psychologist
Speaker 1: and experimental psychologist, and my specialty is human memory, and
Speaker 1: within the study of human memory, I have focused on
Speaker 1: the problems of false memories or distorted memories, and in
Speaker 1: some sense, when memory goes awry. What we know in
Speaker 1: the field of psychology is that memory does not work
Speaker 1: like a recording device. You don't just record the event
Speaker 1: and play it back later. In fact, the process is
Speaker 1: much more complex. What we are doing when we remember
Speaker 1: something is we are often taking bits and pieces of
Speaker 1: experience and constructing what feels like a memory. So psychologists
Speaker 1: talk about memory is being a constructive or reconstructive process
Speaker 1: rather than a kind of video recording process. The term
Speaker 1: the malleability of memory is one that refers to the
Speaker 1: idea that memory is changeable, that it can be influenced
Speaker 1: by all kinds of things, particularly by things that happened
Speaker 1: after some critical events is completely over. In the context
Speaker 1: of a criminal trial, memory comes into play quite often.
Speaker 1: So often a key issue is who committed the crime,
Speaker 1: And often when the key issue is who committed the crime,
Speaker 1: there is some witness or victim who might be making
Speaker 1: an identification somebody that the victim or witness says was
Speaker 1: present at the crime, committed the crime, or cooperated in
Speaker 1: committing the crime in some way. That witness may be
Speaker 1: tested in a number of ways, maybe looking at photographs,
Speaker 1: may be going to a line up, and all of
Speaker 1: these activities involved involved memory. And then, of course, in
Speaker 1: other situations, key witnesses are remembering things other than who
Speaker 1: committed the crime. They have to remember things like what
Speaker 1: was the color of the getaway car, or maybe it's
Speaker 1: a bar fight, and who's the first person who threw
Speaker 1: the first punch. These are also expressions of memory, so
Speaker 1: the accuracy of these kinds of accounts is crucial to
Speaker 1: the resolution of a case. When in investigating the facts
Speaker 1: of a particular case, it's pretty important to look at
Speaker 1: whether there are opportunities where witnesses may have been influenced,
Speaker 1: may have had their memories tampered with, even inadvertently. This
Speaker 1: happens when witnesses talk with one another after some crime
Speaker 1: is over. It happens when people are interrogated. Maybe they're
Speaker 1: interrogated by an investigator who has a hypothesis or an
Speaker 1: agenda and communicates information to the witness. Even inadvertently, they
Speaker 1: can supply information and contaminate the memory. Say a witness
Speaker 1: sees a kind of high publicity event and then looks
Speaker 1: at media coverage and other witnesses or news anchors or
Speaker 1: journalists are talking about the event. There's another opportunity for
Speaker 1: new information to enter the consciousness of a witness. Us
Speaker 1: to a critical case that's going to make its way
Speaker 1: into a courtroom and to cause a change in that memory.
Speaker 1: You know, I had one case where the officer tried
Speaker 1: to elictit identification. The eyewitness said, no, I don't really
Speaker 1: recognize the perpetrator in this set of photos you're showing me.
Speaker 1: And the officer said, I see your eyes drifting down
Speaker 1: to number six. What's going on here? Well, you can
Speaker 1: see in this example that the officer has this idea
Speaker 1: that it's number six. Thanks he saw the eyewitness glanced
Speaker 1: down there, and he in the process secured an identification
Speaker 1: of number six. That's the kind of more subtle suggestion
Speaker 1: that that I've actually seen happen in a case I
Speaker 1: was working on. I asked Dr Loftus what kinds of
Speaker 1: warning signs in a case would indicate to her that
Speaker 1: the eyewitness testimony might be faulty When it's a bit
Speaker 1: a very very long period of time between the supposed
Speaker 1: crime and the person reporting of memory. You don't need
Speaker 1: a PhD to know that memory fades over time. But
Speaker 1: what's a little bit less a matter of common senses.
Speaker 1: As that memory is fading over these long period of time,
Speaker 1: it becomes more and more vulnerable to contamination or suggestion.
Speaker 1: So when I when I hear people coming forward and saying,
Speaker 1: you know, such and such happened twenty years ago, or
Speaker 1: thirty years ago or forty years ago, whatever, that sets
Speaker 1: off at alarm. So the passage of time or the
Speaker 1: presence of suggestive information that that's just a couple of factors.
Speaker 1: But you need to worry about a lot of other things.
Speaker 1: For example, isn't an identification that involves across race identification?
Speaker 1: Do you have a stranger of one race trying to
Speaker 1: identify somebody of a different race who as a stranger
Speaker 1: not a friend. We make more mistakes when we make
Speaker 1: those cross race identifications than same race ones. The cross
Speaker 1: race identification problem, you know, has been at the root
Speaker 1: of a number of these wrongful convictions, and it it's
Speaker 1: even happened in rape cases. So people are pretty close together.
Speaker 1: Justin Brooks, the director and co founder of the California
Speaker 1: Innocence Project, who you heard from at the very beginning
Speaker 1: of this episode, spoke with us about how common incorrect
Speaker 1: eyewitness testimony actually is in exoneration cases like that of
Speaker 1: Joe Diaz. So, first of all, there's sort of the
Speaker 1: global causes of wrongful conviction, and you know, I put
Speaker 1: that in the category of not having resources. You know,
Speaker 1: poor people get wrongly convicted more than rich people, and
Speaker 1: we know that there's racial aspects to that, and we
Speaker 1: know that there's problems with the defense and investigation. But
Speaker 1: what we now know is more about the actual specifics.
Speaker 1: And it's sort of like when there's a plane crash,
Speaker 1: we want to study the plane crash to see why
Speaker 1: it went down. Now we're able to study the two
Speaker 1: thousand cases of documented wrongful conviction in America, and it's
Speaker 1: revealed some interesting things. First of all, one of the
Speaker 1: leading causes is bad identification, and we now know that
Speaker 1: people aren't that good at identifying people. Yet we've allowed
Speaker 1: for centuries people to be convicted on alone witnesses testimony
Speaker 1: of that's the person I saw commit the crime. There's
Speaker 1: many reasons for this. It starts with just faulty memory,
Speaker 1: people having trouble with memory, but we've learned it it
Speaker 1: also comes from poor identification procedures. It comes from all
Speaker 1: kinds of ways people's memories are contaminated. In California, we've
Speaker 1: had a huge number of cases where people are wrongthly
Speaker 1: convicted due to cross racial identifications. And I'm always talking
Speaker 1: to lawyers about how to talk to jurors about this,
Speaker 1: that people just aren't as good at identifying people not
Speaker 1: of their own race. It starts right from when you're
Speaker 1: a baby and your brain is processing how to do
Speaker 1: facial recognition. If everyone around that baby is the same race,
Speaker 1: but the rest of their life, they will not be
Speaker 1: that good a cross racial identification. And it's nothing to
Speaker 1: do with racism. It's just to do with how our
Speaker 1: brains develop. So we've now seen, you know, in the
Speaker 1: initial few hundred DNA exonerations, more than half of them
Speaker 1: were based on bad identifications at trial. So there's a
Speaker 1: lot of reasons people are wrongfully convicted. There's some we
Speaker 1: can really make improvements, and there's others that are always
Speaker 1: going to exist. So we just have to be cognizant
Speaker 1: of it, and jurors have to be cogni sent of
Speaker 1: it and be you know, highly skeptical of certain types
Speaker 1: of evidence. That sounds an awful lot like Joe's case.
Speaker 1: So I asked him what he thought the biggest factor
Speaker 1: was in the juries finding him guilty. Oh, the witness identification.
Speaker 1: There was no doubt about it. If there's one thing
Speaker 1: that I had learned through all of this is how
Speaker 1: race comes into play a lot of times, and how
Speaker 1: difficult it is for people of one race to actually
Speaker 1: identify half the capacity to identify somebody of another race,
Speaker 1: or the errors that are made and trying to identify
Speaker 1: somebody of another race. I identified as Hispanic. However, I
Speaker 1: am a mix. My father's mother was Chinese, his father
Speaker 1: was Spanish. My mother is half Spanish, half Black. I'm multiracial.
Speaker 1: Hey believe me, as much as I've been raised with
Speaker 1: almost every single I was raised in the hood. I
Speaker 1: came to this country of refugee. We were poor. We
Speaker 1: had to live in the poorest of neighborhoods, so you
Speaker 1: congregate with all the poor folk from all over that
Speaker 1: come in into the country. So I thought I could identify.
Speaker 1: I can identify people, but I make a gazilitian mistakes
Speaker 1: all the times where I'm wrong. As I look back
Speaker 1: at my case, I realized how fallible we humans are,
Speaker 1: how fallible our memories and our belief that we could
Speaker 1: identify folks, and especially folks from a different culture. So
Speaker 1: I get it, you know, I get it. At the time,
Speaker 1: I'm like, I'm being framed. Why are you guys doing this.
Speaker 1: You know, at the time, I didn't know what I
Speaker 1: know now. At the time, I was just up in arms, like,
Speaker 1: how in the world could this be? There is power,
Speaker 1: There is so much power. And a witness go into
Speaker 1: court and pointing a finger that a suspect and saying, yes,
Speaker 1: he or she is the suspect. There is power in that.
Speaker 1: After the trial concluded, the jury was sent back to deliberate,
Speaker 1: they couldn't come to a verdict. Come Friday afternoon, they
Speaker 1: all wanted to go home. All of a sudden, they
Speaker 1: had a verdict and it was guilty. Joe has a
Speaker 1: good point here, and I think there's something to his
Speaker 1: idea that his verdict may have been rushed. Most criminal
Speaker 1: trials seem to fit nicely within one work week. By Friday,
Speaker 1: of course, everybody is tired. The lawyers are tired, the
Speaker 1: parties are tired, the judge is tired. This cuts both ways.
Speaker 1: Because a jury is ready to be done on a
Speaker 1: Friday doesn't necessarily mean they're going to acquit somebody in
Speaker 1: It doesn't mean they're going to convict somebody. In my
Speaker 1: career as a prosecutor or as defense counsel, if I
Speaker 1: have a choice. I really don't want a jury deliberating
Speaker 1: on Friday afternoon if it can be helped. Joe was
Speaker 1: exonerated after his release. He served nine years of a
Speaker 1: fifteen years sentence, and it wasn't until years later that
Speaker 1: he was declared in a by a District Attorney's Conviction
Speaker 1: Integrity Unit, one of the strongest tools available in the
Speaker 1: fight against wrongful incarceration. That team of investigators revisited Joe's
Speaker 1: case after they realized that the facts of his case
Speaker 1: that very closely with a serial rapist that had been
Speaker 1: committing crimes in that area. Twenty eight additional victims came
Speaker 1: forward even after Joe was in prison. My first almost
Speaker 1: six years were spent at Solidad prison, and I was
Speaker 1: very fortunate because I went in very angry, very bitter,
Speaker 1: and a lot of people asked me, well, you know,
Speaker 1: was it tough in prison? You know, were the guys
Speaker 1: tough in there? Do you have a lot of fights? Look,
Speaker 1: I had already grown up in the hood. I come
Speaker 1: from a family fighters. My whole family was already raised
Speaker 1: to be pretty uh pretty outlawish. But in all reality,
Speaker 1: I didn't have to go into prison and try to
Speaker 1: prove that I'm a man and try to prove that
Speaker 1: I'm not a sex offender. I just carried my own
Speaker 1: myself as a respectful individual. I respected unders the respected me.
Speaker 1: But I was fortunate that the prison that I had
Speaker 1: to land in was one of the few prisons that
Speaker 1: had a college program. I had been railroaded, I had
Speaker 1: been abducted from a college class. As soon as I
Speaker 1: saw that they had a college program, I signed up.
Speaker 1: I kept myself busy with that, and I kept myself
Speaker 1: on the basketball court. Basketball is my passion. That's what
Speaker 1: I did. I did the best that I could to
Speaker 1: make sure that I could improve my life to the
Speaker 1: best of my ability, because I mean, my life was
Speaker 1: not mine anymore. I had succumbed to the fact that
Speaker 1: I had to survive. I had to survive that nightmare
Speaker 1: and not do anything stupid. I always knew that I
Speaker 1: was putting my children first, and I knew that I
Speaker 1: had to do what I had to do. I always
Speaker 1: had faith. I always had faith, not in God per se.
Speaker 1: I came to the point where I was cursing God,
Speaker 1: but I had faith in the legal system, and I
Speaker 1: had this blind faith and just karma that I would
Speaker 1: be freed someday, and I said, I have to educate
Speaker 1: myself to the best of my ability. I have to
Speaker 1: keep my mind clear for my daughter's I have to
Speaker 1: be there for my daughters. I didn't have a good upbringing,
Speaker 1: but I said, you know what, at least I can
Speaker 1: do is be a man for my daughter. And I
Speaker 1: am so grateful for these professors that were willing to
Speaker 1: take the drive to teach people. I would have to
Speaker 1: believe that they believe that these people are redeemable. In
Speaker 1: the end, Joe was exonerated and given a certificate of
Speaker 1: innocence in April two. As we mentioned, our witness testimony
Speaker 1: is one of the main causes of for awful conviction
Speaker 1: in the United States. I wanted to talk with more
Speaker 1: people about the problems with eyewitness testimony and find out
Speaker 1: exactly what's being done to try and fix the shortfalls
Speaker 1: of human memory. This is Judge Jed Raycle. My name
Speaker 1: is Jed. I'm a federal history judge in what's called
Speaker 1: the Southern District of New York, which is Manhattan and
Speaker 1: various counties to the north. I've been a judge since
Speaker 1: and I also teach at both Columbia Law School and
Speaker 1: YU Law School. Eyewitness identification is among I think the
Speaker 1: most troubling and difficult issues for the system to deal with,
Speaker 1: because the problem is not easily effects you can, of
Speaker 1: course make better than it is how lineups are presented,
Speaker 1: what the police say when showing a witness of photo array,
Speaker 1: and but the single biggest cause of this identification by
Speaker 1: eye witnesses are things embedded deeply in the human psyche.
Speaker 1: There are things like poor perception and poor memory. One
Speaker 1: example is what they call merger. At the time of
Speaker 1: the crime, you only vaguely saw the face of the perpetrator.
Speaker 1: You were watching from a window. You didn't want to
Speaker 1: come close because it was a weapon involved. But you
Speaker 1: did see the face, but not that perfectly. You're then
Speaker 1: shown a very good photo array. Thanks to computers now
Speaker 1: the police can put together excellent photo arrays. You tell
Speaker 1: the police, I think, and maybe this guy number three,
Speaker 1: And you study number three, and you study all seven
Speaker 1: of the photo array photos very carefully, and you notice
Speaker 1: for the first time that he has a distinctive scar
Speaker 1: on his cheek. By the time you go to testify,
Speaker 1: which could be weeks or months later, your memory unbeknownst
Speaker 1: to you will have merged those two, so you will
Speaker 1: now honestly believe Oh, I always saw that he had
Speaker 1: a scar. Well, how do you remember him? Well, I'll
Speaker 1: never forget that scar. This is all a trick of
Speaker 1: your own memory, unconscious. What you're really remembering is the
Speaker 1: scar that you saw on the photo right, but your
Speaker 1: memory now makes you think that you saw it at
Speaker 1: the time. Perception abilities and our memory abilities are not
Speaker 1: nearly as good as we think they are, and yet
Speaker 1: it's very powerful evidence. And the jury has no reason
Speaker 1: to disbelieve him because he has no more to to lie,
Speaker 1: and he's not lying, but he's still mistaken. No one,
Speaker 1: i think, would say that the solution is to eliminate
Speaker 1: all eye witness identifications. That's going to extreme. To the
Speaker 1: other side, there are times when the person who eye
Speaker 1: witnessed as a crime has a really good view of
Speaker 1: it and who may be the critical person in identifying
Speaker 1: the culprit. This is a dilemma. It's one thing when
Speaker 1: you have, like you have in some forensic sciences, imperfect
Speaker 1: science that can be made better. Here the great the
Speaker 1: problem is no one can change human perception ability and
Speaker 1: human memory ability. There are two solutions that have been proposed.
Speaker 1: One is to have judges alert the jury in the
Speaker 1: judges instructions to the jury about some of the problems
Speaker 1: with eyewitness identification efforts. The other is to of experts
Speaker 1: testify about those problems when the judge says, ladies, gentlemen,
Speaker 1: the jury please be careful about eyewitness identification. The study
Speaker 1: suggests that the juries throughout the eyewitness identification totally there
Speaker 1: because the message they think they're gettings I don't believe
Speaker 1: the eyewitness. Where experts are used, and typically this would
Speaker 1: be experts on both sides, the study suggests they cancel
Speaker 1: each other out and they had no effect, for better
Speaker 1: or worse. Very few cases go to trial these days.
Speaker 1: The real action is with the prosecutors, and I think
Speaker 1: a great deal more could be done to educate prosecutors
Speaker 1: to the realities of human perception of memory. Then, I
Speaker 1: think would enable them to be fairer and much more
Speaker 1: acute in their evaluation of giving cases. I know from
Speaker 1: my experience having worked nearly two decades as a prosecutor,
Speaker 1: people are genuinely trying to get it right, that they
Speaker 1: genuinely are trying to get to their best recollection, but
Speaker 1: that we sometimes are influenced by other factors that impact memory.
Speaker 1: Jesse Evans is a prosecutor in Georgia. I've worked with
Speaker 1: him as a prosecutor and we've been on the other
Speaker 1: side from one another in various cases over the years.
Speaker 1: Throughout Jesse's years at the District Attorney's office, Jesse has
Speaker 1: noticed some of the real problems that we know exist
Speaker 1: with eyewitness testimony and in particular with police lineups. Jesse's
Speaker 1: leading the charge in his office and in the state
Speaker 1: of Georgia to try and change some procedures to help
Speaker 1: prevent false identifications. I'm Chief Assistant District Attorney with the
Speaker 1: Cobb County District Attorney's Office specifically on the major crimes prosecutors,
Speaker 1: so I head up the Major Crimes Unit. We deal
Speaker 1: mostly with homicide cases. When it comes to the prosecution
Speaker 1: of a case, there are two things that have to
Speaker 1: be presented in every criminal prosecution otherwise you're gonna have
Speaker 1: a problem on appeal, and those two things are venue
Speaker 1: and identification. We as prosecutors, in our general trial outlines,
Speaker 1: no matter what kind of case we have, will always
Speaker 1: have those two things listed and basically bold and caps
Speaker 1: to make sure that we check those two boxes, you know.
Speaker 1: Identification we need to start from the broad perspective is
Speaker 1: a very important issue within the legal justice system. So
Speaker 1: there may have been instances in the past where prosecutors
Speaker 1: and police were relying oh so heavily on that eyewitness identification,
Speaker 1: the fact that persons points to somebody, however that may be,
Speaker 1: and says that's the person that did this, And there
Speaker 1: are probably a lot of instances we need to, quite frankly,
Speaker 1: modern day be very careful about where that was the
Speaker 1: crux of the case against the criminal defendant. You'd be
Speaker 1: hard pressed these days to find a case that's going
Speaker 1: to rest solely on that testimony of that person that
Speaker 1: could quite frankly be impacted by a number of other
Speaker 1: factors that could impact whether this is an actual memory
Speaker 1: or a case of misidentification. Modern day, we're always trying
Speaker 1: to find corroboration of that identification. That can be cell
Speaker 1: phone evidence, that can be geolocation analysis, that can be DNA,
Speaker 1: that can be other forensics. I was first contacted by
Speaker 1: local jurisdiction mary at a police department. They asked me
Speaker 1: to attend a training and They brought in a former
Speaker 1: detective from Chicago who was going to talk about sort
Speaker 1: of new identification procedures that were beginning around the country.
Speaker 1: And I'll be honest. When they contacted me and said, hey,
Speaker 1: we're contemplating making a change, I was skeptical. I think
Speaker 1: those of us in the criminal justice system, particularly the
Speaker 1: prosecution side of things, have a healthy skepticism about change.
Speaker 1: Why are we doing something? Is this an issue that's broken?
Speaker 1: Are we trying to fix something that doesn't need to
Speaker 1: be fixed. And I'll tell you, after participating in that
Speaker 1: training and listen to this, I became convinced that there's
Speaker 1: probably a better to do identification procedures. The new procedure
Speaker 1: that is recommended and in fact is the default here
Speaker 1: in Georgia by statute, is what we call blind sequential lineups.
Speaker 1: Rather than looking at all six at the same time,
Speaker 1: what happens is that a witness is asked to look
Speaker 1: at photographs individually. One is presented to the witness, then
Speaker 1: that photo is removed from view, Then a second is
Speaker 1: presented to the witness, so on and so forth until
Speaker 1: you go through, ideally all six of the photographs. That's
Speaker 1: usually the amount that we use here. The blind component
Speaker 1: of that is the idea that we try to do
Speaker 1: it in a method that would allow for the presenter
Speaker 1: of that photographic lineup to not be involved in the
Speaker 1: investigation or to not know who the person is. I
Speaker 1: asked Jesse if he's been able to see any changes
Speaker 1: or improvements in their work since implementing these new identification policies.
Speaker 1: It's a really a hard thing to gauge in terms
Speaker 1: of statistics. Instead, what we wanted to do is just
Speaker 1: gauge sort of the boots on the grounds, the people
Speaker 1: that I trust, the people that I'm embedded with as
Speaker 1: the major crimes prosecutor. I went to my homicide detectives
Speaker 1: and I said, anecdotally, how do you feel about it,
Speaker 1: and how do you feel about the process. Do you
Speaker 1: feel like you're getting less identifications? And speaking with my
Speaker 1: detectives that I trust, the anecdotes I was getting back
Speaker 1: from them was not only do they feel like they
Speaker 1: weren't getting significantly less identifications, they actually felt better about
Speaker 1: the identifications they were getting because they felt like the
Speaker 1: process was more fair. There's nobody in the criminal justice
Speaker 1: system that wants to get it wrong, so to speak.
Speaker 1: We're all seeking to get it right. We want to
Speaker 1: get it right for that reason. While identification testimony can
Speaker 1: oftentimes be very important because we're all moving towards that
Speaker 1: goal of getting it right, we want to make sure
Speaker 1: that it's not the only thing that we're relying on.
Speaker 1: I can't think of an instance in my eighteen and
Speaker 1: a half year prosecution career where I've tried a case
Speaker 1: based solely on identification testimony. There's always gonna be some
Speaker 1: corroborating fact, is there? Otherwise I'm gonna be very concerned
Speaker 1: about taking that to court. And in fact, our admonition
Speaker 1: that we give to witnesses and victims before they do
Speaker 1: this specifically tells them that whether or not they picked
Speaker 1: somebody out, we're going to continue on in our investigation.
Speaker 1: And that's an accurate statement. I've been concerned with the
Speaker 1: problems of eyewitness testimony for quite some time now, So
Speaker 1: when we started thinking about what we wanted to do
Speaker 1: with this show for this season and what pitfalls and
Speaker 1: problems we wanted to talk about and to learn about
Speaker 1: and to bring to your attention, I knew that eye
Speaker 1: witness identification, and memory had to be on the list,
Speaker 1: and probably at the top of the list. What I
Speaker 1: came to find though, through these interviews with the experts
Speaker 1: and from hearing stories like Joe's story man, I found
Speaker 1: that these problems are even deeper and more serious than
Speaker 1: even I knew. I have seen over and over again
Speaker 1: just how much weight eye witness testimony carries with judges
Speaker 1: and juries once witnesses take the stand. But it's been
Speaker 1: known for a while in law enforcement that memory isn't
Speaker 1: always reliable. In fact, I learned about it firsthand back
Speaker 1: in my days at the police academy in the late
Speaker 1: nineteen eighties. One day, I guess it was probably nineteen
Speaker 1: eighty nine, I was in Albany, Georgia at the Regional
Speaker 1: Police Academy. I was in a classroom with a group
Speaker 1: of maybe twenty to twenty five students. Out of nowhere,
Speaker 1: someone just busting the room, wearing a ski mask and
Speaker 1: holding a handgun. This person goes straight up to the
Speaker 1: teacher and held him up at gunpoint. At the time,
Speaker 1: none of us were armed, so we all just sat
Speaker 1: there stunned, and in about fifteen to twenty seconds, the
Speaker 1: teacher handed over his wallet and keys and and other
Speaker 1: valuables and this person in the ski mask just left
Speaker 1: the room. We all thought we had just witnessed a real,
Speaker 1: although pretty reckless robbery of somebody thinking that they could
Speaker 1: actually hold up the police academy. As it turns out,
Speaker 1: it was a lesson for us, a lesson in identification.
Speaker 1: Everyone in the room was asked to write out a
Speaker 1: description of the person they saw, and between the twenty
Speaker 1: five or so students that were there, they were probably
Speaker 1: twenty five different descriptions. They brought the person in and
Speaker 1: lo and behold, nobody in the room was right. I
Speaker 1: mean nobody. Things like what color of the person was wearing.
Speaker 1: Those details were wrong, whether somebody had a hat on,
Speaker 1: those details were wrong, very important details that you would
Speaker 1: think would be hard to miss. And to this day,
Speaker 1: I think about that exercise at the police Academy, I
Speaker 1: think about just how wrong our panic human memories are,
Speaker 1: even for people trained to identify suspects and to remember
Speaker 1: clues to a crime. The big takeaway for all of
Speaker 1: us was, look, we can't rely on this stuff. We
Speaker 1: can't rely on descriptions. Perceptions alone are not enough to
Speaker 1: solve cases. It wasn't until law school when I started
Speaker 1: to learn about the work of Dr Elizabeth loftus that
Speaker 1: I realized the real problems with human memory and how
Speaker 1: they play into identifications. Not only is eyewitness identification unreliable
Speaker 1: at best, it's oftentimes just flat out dangerous, And now
Speaker 1: after twenty some odd years of practicing law, for me,
Speaker 1: it's just one of the more frightening aspects of our
Speaker 1: legal system. There are so many people like Joe who
Speaker 1: get sent to prison on little other than what an
Speaker 1: eyewitness tells. A jury and juries love eyewitness testimony. I
Speaker 1: see it time and time again, juries and judges here,
Speaker 1: how confident these witnesses are even when they're wrong. I've
Speaker 1: seen victims and witnesses testify in court even before juries
Speaker 1: and give details that the witness is very certain but
Speaker 1: that are very wrong. And as we've heard from our experts,
Speaker 1: it's not that they're lying or they're trying to do
Speaker 1: the wrong thing. Most of the time, they genuinely want
Speaker 1: to get it right and they think that they are right,
Speaker 1: just like I genuinely wanted to get it right back
Speaker 1: in the police academy. It's our brains and our perception
Speaker 1: that change these details and make false connections that aren't
Speaker 1: actually there. In fact, just this week, while we were
Speaker 1: recording this episode, I had a hearing in court where
Speaker 1: a witness was absolutely certain about something that they saw,
Speaker 1: even though everything else about the case pointed to that
Speaker 1: not being true. I wanted to address this issue right
Speaker 1: off the bat, because, as Justin Brooks and Judge Raycoff
Speaker 1: have explained, eyewitness testimony is the number one reason Innocence
Speaker 1: Project exonorees across the nation are falsely imprisoned. I don't
Speaker 1: think when it comes to something as serious as prison,
Speaker 1: we should rely on some thing as malleable, as changeable
Speaker 1: as eyewitness testimony and memories as the soul or even
Speaker 1: the primary evidence in a case. It can be a
Speaker 1: helpful investigative tool, don't get me wrong, but there are
Speaker 1: so many problems associated with it that it cannot be
Speaker 1: the reason that we send someone to jail. I'm glad
Speaker 1: there are people like Jesse Evans and Jed Raikoff who
Speaker 1: are out there educating police and lawyers and juries on
Speaker 1: the problems associated with eyewitness testimony. I'm glad there are
Speaker 1: people like Dr Loftus who can go into court as
Speaker 1: an expert and explain this stuff to juries to prevent
Speaker 1: more wrongful imprisonments. And I know that in my own life,
Speaker 1: I take a good hard look at the things that
Speaker 1: I think I might know to be true based on
Speaker 1: my own perceptions. Maybe it's details that I think I'm
Speaker 1: certain that I remember. I'm thinking about these things more
Speaker 1: critically because I don't want to make any important decision
Speaker 1: or even an accusation based on what might be faulty memory.
Speaker 1: If you have a story about a faulty memory or
Speaker 1: an unreliable eyewitness, we want to hear from you about it.
Speaker 1: Give us a call at four zero four four zero
Speaker 1: zero four four one. Next time on sworn he set
Speaker 1: it up, making sure that all right jury was selected.
Speaker 1: It was like from there it was just an uphill battle.
Speaker 1: And I tell people all the time, if it had
Speaker 1: been an all Chinese jury and it would have been
Speaker 1: a Chinese victim, are all Mexican jury and the Mexican victim,
Speaker 1: what are the odds? The odds are totally staticas fact
Speaker 1: that the fact that the fact that brought out the
Speaker 1: hair samples didn't match, but it didn't make any difference
Speaker 1: because says that one dramatic moment when they say it's
Speaker 1: the person that committed the crime in this court room
Speaker 1: today and they turn around and a tear coming down
Speaker 1: to their cheek. Let me point directly led me and
Speaker 1: said he's the one. Sworn is a production of Tenderfoot
Speaker 1: TV and I Heart Radio. Our lead producer is Christina Dana.
Speaker 1: Executive producers are Payne Lindsay and Donald Albright for Tenderfoot TV,
Speaker 1: Matt Frederick and Alex Williams for I Heart Radio, and
Speaker 1: myself Philip Holloway. Additional production by Trevor Young, Mason Lindsay,
Speaker 1: Mike Rooney, Jamie Albright and Halle Beadal. Original music and
Speaker 1: sound designed by Makeup and Vanity Set. Our theme song
Speaker 1: is Blood in the Water by Layup. Show art and
Speaker 1: design is by Trevor Eisler, editing by Christina Dana, Mixing
Speaker 1: and mastering by Mike Rooney and Cooper Skinner. Special thanks
Speaker 1: to the team at I Heart Radio from u t
Speaker 1: a or In Rosenbaum and Grace Royer, Ryan Nord and
Speaker 1: Matthew Papa from the Nord Group that Media and Marketing
Speaker 1: and Station sixteen. I'd also like to extend a very
Speaker 1: personal and special thanks to all of our contributors and
Speaker 1: guests who have helped to make all of these episodes possible.
Speaker 1: You can find Sworn on Facebook, Twitter, and Instagram at
Speaker 1: sworn podcast and follow me your host, Philip Holloway on
Speaker 1: Twitter at phil Holloway e s Q. Our website is
Speaker 1: sworn podcast dot com, and you can check out other
Speaker 1: Tenderfoot TV podcasts at www dot tenderfoot dot tv. If
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Speaker 1: Sworn at tenderfoot dot tv or leave us a voicemail
Speaker 1: at four zero four for one zero zero four four one.
Speaker 1: As always, thanks for listening. And then I noticed you're
Speaker 1: using the word convict and so of the word inmates.
Speaker 1: Can you exclaim why you're doing that? I'm conscious about
Speaker 1: the differentiation in prison. I would consider an inmate those
Speaker 1: men will carry themselves in a manner in which they
Speaker 1: try to curry favor with the guards, where they will
Speaker 1: do whatever staff wants to them at the expense of
Speaker 1: another man. A convict is a man who carries his
Speaker 1: own excuse, the vulgarity, carries his own nutsack. He doesn't
Speaker 1: need a gang of individuals to help him walk the prison.
Speaker 1: He doesn't need a guard to give him an extra
Speaker 1: pillow or whatever stupid freebees, those guys would get. I
Speaker 1: detest any man that's already sitting in prison, currying favor
Speaker 1: with staff at the expense of another man.