Eyewitness Misidentification

At the time of Jeffrey Wogenstahl’s trial the law had not yet embraced the concerns about eye witness identification that scientists had been highlighting for years. It was only when DNA exonerations flagged up the prevalence of misidentification even when a witness had had ample opportunity to see a perpetrator (as in the Ronald Cotton casethat measures to reduce misidentification were introduced. In Ohio, for instance, a 2010 statute stipulates precisely how eyewitness identification procedures are to be carried out, to minimize the chances of misidentification.

The difference between what is now accepted about eyewitness identification and what was allowed at Jeff’s trial more than two decades ago should cause grave concern. For a start, as Jim and Nancy Petro* note, research shows that caution is needed if the conditions surrounding the sightings were poor e.g. if the lighting was poor and the time viewed was short. Both these factors were present in Jeff’s case: the area where some witnesses said they saw Jeff was dark, and most described seeing him for a matter of seconds. One witness had poor eyesight. Far from making clear to the jury the unreliability of the identifications, the prosecutor actually improperly bolstered the credibility of one witness, who said she saw Jeff for 5 seconds in a moving car, in the night, in a dark country area.

This witness also made her identification more than a year after the murder, which should have invalidated it (this witness was unable to identify Jeff immediately after the crime). The Petros note that research shows† that after 11 months the rate of accurate identification decreases to only 11%, which is no better than would occur by chance. The witness mentioned here had very likely seen Jeff shown as a suspect on television by the time she eventually made her identification, so may well have picked out his face as one she recognized from the publicity.

Other eyewitnesses gave conflicting testimony about what and who they saw that night. For instance, one described a man with glasses and facial hair, who was of a different weight and height from Jeff. But at Jeff’s trial these discrepancies were not highlighted as much as the testimony that identified Jeff.

We now know that the way in which police conduct eyewitness identification is extremely important: administrators can subconsciously influence the identification process unless there is strict adherence to procedures such as those required by the current Ohio statute. The witness should not feel pressurized to choose one of the photos: he/she should be told the suspect’s photo may not be amongst those being shown, and the pictures should be presented singly, to avoid the witness trying to find the ‘best fit’ rather than the person actually seen. The administrator should not know which photo is that of the suspect. The witness’s degree of certainty about the identification should be recorded. An exact record of each step of the procedure should be made.

Such strict procedures would certainly not have been required at the time of Jeff’s trial.

As an appeals court noted in 1994, the eyewitness testimony in Jeff’s case was only circumstantial, and was used alongside other evidence. Nonetheless, eyewitness testimony is known to have a powerful impact on a jury; the other evidence against Jeff is also highly questionable; the prosecutors are known to have committed wide ranging misconduct; and significant evidence was withheld from the jury. Jeff’s claim of innocence has a huge amount to support it. We trust he will soon be granted a new trial.

* False Justice: Eight Myths that Convict the Innocent by Jim Petro and Nancy Petro, Routledge, 2010, page 146
False Justice: Eight Myths that Convict the Innocent by Jim Petro and Nancy Petro, Routledge, 2010, page 158
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