Likelihood of False Identification

Dr. Harvey G. Shulman, PhD, an expert in eyewitness behavior and accuracy, has highlighted flawed police procedures and other factors that increased the chances of false identification by the eyewitnesses who testified at Jeffrey Wogenstahl’s trial.

Shulman’s report is contained in a motion* that is now being considered by the Ohio Supreme Court. Significantly, he notes:
“In known cases of false conviction… it has been reported that mistaken eyewitness testimony was a major contributing factor in over 80% of cases.”

 Shulman remarks that when witnesses Kathy Roth and Brian Noel saw a person whom they later identified as Jeff, their visibility was impeded by poor lighting and viewing angle and limited time; these factors, Shulman says, would have made it “extremely challenging to form a durable, detailed memory”.

The formal identification of Jeff by the witnesses also concerns Shulman. For instance, he observes that Noel apparently used a ‘best match’ strategy at the physical lineup where he identified Jeff (Noel said, “closest one out of that bunch, he’s the only one that fits that description all that much”). According to Shulman, such a ‘best match’ strategy is liable to lead to false identification.

Shulman finds Roth’s identification of Jeff in a photo array even more problematic. Roth failed to identify Jeff soon after the crime, and made only a tentative identification eleven months later, at which point the administrator unfairly presented a second picture of Jeff. This constituted “a suggestive single candidate display that would have been influenced by the immediately preceding photos”. Shulman concludes,
“[T]he photo of Wogenstahl may have been falsely identified because his appearance in the recent photo array made him seem familiar.”

Shulman also states that eyewitnesses should be told that the perpetrator may not be present in a line-up. This procedure does not seem to have been followed in the case of eyewitness Vicky Mozena, who was told to circle the photo that she thought was “the gentleman that came in that night”.

Witnesses Mozena and Roth had both seen Jeff before they undertook the identification process (Mozena had seen him in her workplace before the crime date, and Roth saw him on TV soon after the crime). Shulman explains that prior encounters or media exposure can distort witnesses’ memory of what they saw around the time of the crime.

All three witnesses expressed their court testimony with confidence. Shulman points out that jurors tend to wrongly believe that confidence indicates accuracy; whereas, in fact, confidence is influenced by many factors that arise after the memory is formed. He adds that the courtroom scenario is biased against the defendant and socially coercive to the witness.

Shulman believes that if an expert on Eyewitness Identification had explained to the jury the potential for false identification in Jeff’s case, this might have altered the credence given by the jurors to the eyewitness testimony.

Yet again, this is compelling evidence for Jeff to be granted a new trial. We trust the court agrees.

*See Volume 2 of Appendix to Appellant Jeffrey Wogenstahl’s Motion to Remand Case to the Trial Court, filed in the Supreme Court of Ohio, October 7, 2016 – Case No. 2016-0423; Pp 111 -113.
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