Factfinders – judges and juries – rely on a witness’ claim of first hand knowledge. “I looked down the street and saw X occur.” And indeed, personal knowledge is a legal prerequisite for all except expert testimony. Yet too few lawyers take the fundamental and essential step of standing in the shoes of the percipient witness to see whether the line of sight was uninterrupted or the distance too great to permit an accurate view.
That this failure is recurring is sad but true. This author is involved in not one but two cases – one as counsel and one as a consulting expert – where the charge was murder and the proof dependent on the accuracy of eyewitnesses but trial counsel never visited the scene or took photographs to test [and disprove] the claimed ability to see clearly what had transpired. A post-trial visit in each instance showed not merely that the view was limited but that, in fact, it was impossible to see what the witnesses claimed to have observed (and what, in each instances, jurors relied upon to convict).
The lawyers also failed to learn the science. An abundance of research shows the limits of human ability to perceive details, in particular facial characteristics, even in the best of lighting. Research conducted by Professor Geoffrey Loftus and his colleagues (Loftus & Harley, 2005) shows with specificity how, as a face is viewed at further and further distances, there is less ability to detect the details of the face and the facial details are coarser. The below image recreates the detail lost in viewing a face from 20 feet (left) to 100 feet (right).
Other research has shown the drop-off point. In one study, participants viewed faces from distances between 3 and 40 meters and were then immediately asked to make an identification from a six-person lineup. The proportion of correct responses to errors was too great at distances over 15 meters (about 16.4 yards) for an identification to be probative or reliable. Those researchers recommended a 15-meter distance as a useful “rule of thumb” for courts.
In one of the two murder cases referenced above, the witnesses were outside of a Barber shop when a shot was fired outside of a corner store one block away, drawing their attention. Police measured the distance at approximately 120 feet. Two eyewitnesses each claimed the ability to identify the accused as the perpetrator, based on a view of a few seconds. Trial counsel never demonstrated the impossibility of this averment.
A post-trial reconstruction of the event was undertaken, using the simple camera feature found on most “smart” phones today and confirmed with a standard camera. A passerby was enlisted, and photos were taken at the full distance, a half-way point, and essentially face-to-face outside the Barber shop. Here is what they showed:
THE VIEW FROM THE SHOP TO THE CRIME SCENE
THE VIEW HALF WAY TO THE SHOP
THE VIEW FACE TO FACE
There are multiple “bottom lines” here. First, in this instance an innocent person may be in prison for life, due to counsel’s dereliction. Second, it doesn’t take a lot to test witness accuracy – just stand in the person’s shoes. Third, if the reenactment does not disprove the witness’ claim the lawyer still has gained. There is knowledge of what might have been seen and there is power – because when a lawyer who has been at the scene asks questions showing her personal and detailed knowledge of the environs, the witness is more apt to be compliant under examination. The witness knows that counsel has information and is less likely to be fooled.