Eyewitness Testimony: What Happens When You Do Not See What You Thought You Saw

May 5, 2015

By: Carla Vestal

Earlier this year, there was a dress that had everyone on the internet up in arms, and no, it was not something a reality television person was wearing. The most talked about dress this year was from the online retailer Roman Originals and the question asked was, “What color is the dress?” Some people looked at the image and saw gold and white. Others looked at the dress and saw black and blue. When a picture of the dress was placed in Photoshop, the picture-altering program labeled it as both, white and gold and black and blue! Personally, the picture entertained me for a few hours because sometimes I saw blue and black and other times the alternate. I would look at the picture seeing white and gold, close my eyes, count to three, reopen my eyes and see black and blue.

Other than this image being a cool optical illusion online, I began to question, “How much should you trust your own eyesight?” Or, more importantly, “How much weight should be placed on eyewitness testimony in criminal trials?” Black’s Law Dictionary defines eyewitness testimony as “a statement given under oath by a witness.” Simple enough. But, what if our eyes, like in viewing the now most famous dress of this decade, aren’t as trustworthy as we think they are?

How long have our eyes been playing tricks on us?

Critics have questioned eyewitness testimony as early as the 1900s, and major criminal defense advocates, such as the Innocence Project, claim that “eyewitness misidentification is the greatest contributing factor to wrongful convictions, playing a role in about 75% of convictions overturned through DNA testing nationwide.” The raw numbers indicate some other troubling data. The most current data on wrongful convictions cite that, of the 318 cases overturned, 72% were overturned due to bogus eyewitness testimony. That is an astounding 229 innocent people who have been sentenced to prison because of what later turned out to be erroneous eyewitnesses. And that is not all that happened because of this faulty testimony. While the innocent were serving sentences for crimes they did not commit, the real perpetrators, who have been identified in 90 of these cases, were out committing more crimes: 63 rapes, 17 murders, and 18 other violent crimes.

Do people of different races all look alike?

Our perceptions of people who look differently than we do is called the “cross-race effect.” The cross-race effect asserts that people of the same race are better able to recognize faces of the same race than the faces of people who are of a different race. In a study by Behrman and Davey in 2001, 271 police cases were analyzed and the results showed that people of the same race correctly identified the suspect 65% of the time, whereas, only 45% of the witnesses were able to correctly identify the suspect if the suspect were of another race.[1] The theory behind this disparity is, regardless of race, people share an ingroup advantage with members of the same race. This ingroup advantage allows people of the same race to process facial features of their own group in a more holistic manner than when looking at a person of a different race. When observing a person of a different race, an individual recognizes characteristics that are attributable to that race as a whole. The consequence of this cross-race effect causes disparity when people witness a person of another race committing a crime, because it is more likely that the witness will misidentify the suspect due to the decreased ability of different races to identify the facial characteristics of another race’s face.

The brain does not remember what the eyes see

Vision is composed of three distinct, yet highly interdependent phases: sensation, attention, and perception. The first step of sensation is detecting light and basic shapes. Sensations are ephemeral and a very small amount of what is sensed is perceived. Attention is the process used by the visual system to send selected information that has been sensed for further processing. Perception is when the attended sensations are linked to “environmental cause, made coherent, and categorized through the assignment of meaning, utility, value, and emotional valence.” Memories and emotions from prior experiences also interweave within these new images, adding value and meaning to the individual.[2]

When analyzing how vision works, it is equally important to consider how vision works in relation to distance. People who identified as having “good eyesight” could not see the eyelashes on a person from ten feet away. When 200 feet away, the eyes themselves blur, and at 500 feet, no recognizable facial features can be ascertained. Other factors that have been found to affect the witness include the amount of stress involved, weather conditions, noise levels, and if a weapon had been used.

The memory itself is not stored in one part of the brain, but is recalled through the activation of several parts of the brain that work together. For example, the emotion that a memory brings is stored in one area of the brain, and the content of the memory is stored in another place. Hormones help engrave memories in our brains and then those same hormones categorize new experiences based on old ones. Adding to the matrix of how vision and memory work, “there are between 200 and 400 billion neurons in the brain and each neuron has about 10,000 connections.” Nobel Prize winning neuroscientist Gerald Edelman, Ph.D., sums memory up as the ability to repeat a performance – with mistakes.

How mistakes are added into a memory and how false memories are made

Memory is malleable, so malleable in fact, that studies have shown in studies that memories can be recalled by 25% of people who have never had the experience by mere suggestion and non-verbal clues given by others. Studies show that witnesses will pick the wrong suspect out of a line-up 25% of the time, and when the suspect is absent from the line-up the witnesses will pick an innocent person more than 33% of the time. Witnesses pick-up on nonverbal communication from the officers conducting the line-up when the officer knows the suspect is present, regardless of whether it is the correct person or not. Thus, this solidifies the witness’s choice and the witness becomes more confident in the identification. As litigators know, a confident eyewitness on the stand, regardless of whether the witness is correct or not, has a great impact on a jury.

The court and science come together

Over the past 30 years, there have been hundreds of sociological studies performed to test the reliability of eyewitness testimony and to determine what factors, if any, influence the brain’s recall system and the witness’s self-affirmance of what she or he may have experienced. The New Jersey Supreme Court in 2011 made a landmark decision where it reviewed a special master record of 300 exhibits and 200 scientific studies in the case of State of New Jersey v. Henderson. The court decided that when studying eyewitness testimony,2 groups should be identified: “estimator variables” and “system variables.”

Estimator variables are things that cannot be controlled by the criminal justice system. Examples of estimator variables are the amount of light between the alleged and the distance between the witness and alleged perpetrator. Things that the criminal justice system can and should control for are system variables. System variables include procedures such as how law enforcement retrieves and stores witness testimony, how it conducts line-ups, photo arrays (six-packs), and instructions given to witnesses when participating in identification procedures. State of New Jersey v. Henderson, 27 A.3d 872 (N.J. 2011).

What can be done to improve the system used?

From the scientific evidence that supports the fallibility of eyewitness testimony and the decision rendered in Henderson, there are several methods that can be used to ensure that innocent people are not identified through eyewitnesses. For example, blind administration of the officer conducting line-up, where the officer conducting the procedure does not know who the alleged suspect is, would greatly reduce the non-verbal communication signals the witness may interpret as positive feedback. Also, when using fillers in line-up composition, the fillers should resemble the description on the person given by the witness, and the same fillers should not be used in multiple line-ups. This would reduce the likelihood that seeing the same person multiple times would implant a false recognition in the eyewitness’s memory. Other improvements would allow for the identification process to be recorded; eyewitnesses would memorialize their own confidence level in the identification made; and the conducting officer would tell the witness that the suspect may or may not be in the line-up, and the investigation will continue regardless of the outcome. During the investigation process, implementation of these procedures would lessen misidentification. The lack of these processes being used gives the defense an opportunity to attack the eyewitness’s identification during a trial. If the procedures were implemented nationwide they would protect innocent people from overzealous police and prosecutors, thus helping to ensure that a suspect will have a fair trial.

But what color is the dress?

The designers have confirmed the dress is blue and black.

To learn more about eyewitness identification, vision processing and how the brain stores memories visit:





[1] B. W. Behrman & S. L. Davey, Eyewitness Identification in Actual Criminal Cases: An Archival Analysis, 25 Law & Hum. Behav. 475 (2001).

[2] Comm. on Scientific Approaches to Understanding and Maximizing the Validity and Reliability of Eyewitness Identification in Law Enforcement and the Court et al., Identifying the Culprit: Accessing Eyewitness Identification 46-47 (2014).

Civil Rights Clinic members speak to City Council about reforming Citizens Review Board

April 2, 2013

On Monday evening, April 1, 2013, the Charlotte City Council heard Civil Rights Clinic members Isabel Carson and Daniel Melo advocate for the reform of the city’s Citizens Review Board. Isabel and Daniel were two of a series of eight speakers to the City Council about the Citizen’s Review Board and the need for change. Charlotte’s Citizens Review Board is the forum for appeals for citizens who have complained about police misconduct. After an informational presentation by the city’s stakeholders and then public input during the Citizens’ Forum, the City Council decided to (1) have the City Manager develop a stakeholder process within the next 90 days and (2) send the ordinance, City Ordinance 849, to the Council Manager Relations Committee for review. Changing the standard of review and the need for transparency were recognized as primary areas in need of reform. The Council asked for further data collection, analysis, and possible reform of those issues.



Pictures by Katie Webb

Please stay tuned to the Civil Rights Blog for more updates and information in the following weeks!

For further information, please read:

Observer article April 1st Council Meeting: After scrutiny, council votes to examine review board

February Observer Article: The real story on the Citizens Review Board

By Lindsey Engels

Observer Ban the Box editorial

March 26, 2013

Here is a link to the Ban the Box editorial posted in today’s Charlotte Observer.

In the Shadow of The Box

February 18, 2013

Approximately one in every 163 adults is incarcerated in Mecklenburg County. That amounts to about 3,800 people in jail and prison at any given time. As of last July, 6,874 were on probation. The unfortunate reality facing many of these individuals with a criminal past is that they walk out of a prison cell, straight into a box.

This “Box” is often a simple question on employment applications that requires the applicants to check “yes” or “no” as to whether they have previously been convicted of a crime. According to Devah Pager, author of The Mark of a Criminal Record, once the applicant checks the box, employers are twice as likely to deny employment to an applicant with a criminal record than an applicant without one. People who complete their time and are released find themselves chained to their past, with a dark shadow standing over them every time they fill out a job application or sit down for an interview. They all stand in the shadow of The Box.

According to the Center for Community Transitions and the Mecklenburg County Sheriff’s Office, 97 percent of those incarcerated in Mecklenburg County will return to the community, many with little or no resources, and nearly a 50 percent chance of being rearrested within a year. In a study done by the Indiana Department of Corrections, if employed, ex-offenders’ recidivism dropped from a high of 44.7 percent, down to 28.5 percent for someone without a GED or high school diploma; the numbers go as low as 17.3 percent if that individual has a college degree and employment.

The challenges individuals with criminal backgrounds face disproportionately impact people of color, the working poor, and minorities; populations which are convicted and incarcerated in numbers disproportionate to their population. According to the Department of Justice, African-American and Hispanic males were imprisoned at a rate between 2 to 7 times that of white males nationwide during 2011. This imbalance has created a disparate impact on job seekers from minority communities. The Box greatly exacerbates the re-entry adversity which thousands of potential employees, their families and communities already face.

In an effort to promote and assist with the communal reintegration of those with a criminal history, the Ban The Box movement seeks to remove the requirement that applicants disclose all past convictions on a preliminary application for public employment with the City of Charlotte. Past efforts in the community have shown that employment dramatically lowers the recidivism rate for participating ex-offenders by as much as 35 percent below the national average. Research from the Center for Community Transitions shows that finding and retaining employment are major factors in preventing return to prison. Over 20 cities have passed similar legislation including Durham City, Durham County, San Francisco, Seattle, and more. Some states, like Massachusetts, have successfully adopted legislation at the state level.

The cost? An opportunity to explain. City employers would not be prohibited from making background checks, but would instead have to extend a conditional offer of employment prior to a check taking place. Qualified applicants would be able to discuss their criminal history in an interview and explain why it should not disqualify them, as well as provide evidence of their rehabilitation. Adopting the ordinance would not only lower recidivism, preventing the overcrowding of prisons and jails, but would also significantly decrease the cost to taxpayers of housing inmates.

Ex-offenders may have few or no resources to begin to unshackle themselves from their past convictions and gain lawful employment. Through this proposal they will have a chance at becoming functional, contributing members of society once again, while simultaneously decreasing their chances of recidivism. The Ban The Box Coalition plans to present its resolution and proposed ordinance to the City Council Monday, February 25th, at 6:15pm. Everyone is invited to attend and show their support. With our help, ex-offenders have a chance to get out from under the shadow of The Box.

By Daniel Melo

Free Speech for People Amendment: A Legislative Alternative to the Judicial Decision of Citizens United

October 18, 2012

Do independent expenditures by entities, such as corporations, create corruption or even the appearance of corruption thus diluting the people’s ability to control government?  The majority of the Supreme Court answered the question in the Citizens United v. Federal Election Commission ruling with an emphatic “No.”

What this ruling did, in effect, is give corporations much of the same rights to political speech as individuals.  It means that virtually all restrictions on corporate money in politics have been removed.  In a Slate article, titled The Numbers Don’t Lie, Richard L. Hasen, a leading expert on campaign finance and professor at the University of California at Irvine stated, “after Citizens United, the courts . . . and the FEC [Federal Elections Committee] provided a green light for super PACS to collect unlimited sums from individuals, labor unions, and corporations for unlimited independent spending.  The theory was that, per Citizens United, if independent spending cannot corrupt, then contributions to fund independent spending cannot corrupt either.  . . . So what was once questionable legality before the court’s decision was fully blessed after Citizens United.”

This summer the Supreme Court had an opportunity to take another look at the Citizen’s United ruling and declined.  The Montana Supreme Court upheld the state’s 1912 Corrupt Practices Act limiting independent political spending by corporations.  In a 5-4 ruling the U.S. Supreme Court voted to summarily dismiss the Montana case without oral arguments.

Montana’s Attorney General, Steven Bullock, argued that overturning the Corrupt Practices Act would “make our political process unrecognizable.”  He provided instances of not just the appearance of corruption, but actual corruption caused by this type of spending in the case.  Montana’s Supreme Court held in Tradition Partnership v. Bullock that the ban on such funding in Montana state elections was constitutional.  The U.S. Supreme Court’s 5-4 decision to not hear the case, unfortunately, proffered no rebuttal to the facts presented by Mr. Bullock and appears to have shut out the possibility of Citizens United being overturned by the current Supreme Court.

Is there anything we can do to change this unfortunate precedent? Well, yes, there is a grass roots movement to support a constitutional amendment!  The amendment, banning independent expenditures by special interest groups, has already been introduced in Congress.   Free Speech for People is helping organize efforts amongst concerned citizens to stir municipalities and other local governmental entities to call for Congress and states to act.  Their site provides an opportunity to sign a petition supporting H.J. Res. 88, a bi-partisan Congressional resolution that will amend the Constitution and overturn the Citizens United ruling.  The organization also provides resources to help you promote this amendment in your local and state governments.

The amendment process will eventually require ratification by2/3rds of the states and this grassroots effort helps to inform the electorate of the Amendment and gives representatives notification of what the People want.  According to a survey of 1,000 likely voters, 62 percent of all voters oppose the Supreme Court’s Citizens United decision.  In a poll conducted by Free Speech for People 82 percent of independent voters, 68 percent of Republican voters, and 87 percent of Democratic voters support the amendment.  This isn’t a political issue, this is voter’s rights issue, as Citizens United has allowed special interests to supplant the power of our founding principle of “one man, one vote” with the idea of “more money, more influence.”

For further reading, Corporations Are Not People, by Jeffrey D. Clements, and Republic Lost, by Lawrence Lessig, provide a thorough overview of the problem and its effect on our country. Also, the nationally-recognized expert in election law and campaign finance regulation, Professor Richard Hasen, will be joining the American Constitution Society for an event on Monday, October 22nd at noon.  Professor Hasen will be joining us via Skype and UNC Charlotte Professor of Political Science, Martha Kropf, will be on campus.

The time to act is now.  If you are interested in becoming part of this movement, please email Brandy Hagler, haglerb@students.charlottelaw.edu, or Cleat Walters III, waltersc@students.charlottelaw.edu for more information.

By Cleat Walters III and Brandy Hagler

Students of the Civil Rights Clinic and the Law & Rhetoric Course Come Together.

October 1, 2012

Classical rhetoricians like Aristotle, Quintilian, Isocrates, and Cicero, were concerned with “preparing young men for the roles as citizens by teaching them to be skilled persuasive speakers in various situations,” writes Professor James M. Dubinsky of Virginia Tech in his article, “Service-Learning as a Path to Virtue: The Ideal Orator in Professional Communication.” The lawyer has always been in a unique and privileged position in our society. As legal writers, we strive to produce our best arguments in hope of serving our clients to the best of our capabilities. This is where rhetoric is most useful to us, as a tool for legal analysis. The study of rhetoric enables us as lawyers to determine the best ways to organize our reasoning, to determine our best strategies, and to tell our clients’ story in way that is most persuasive and beneficial. It requires us not only to be great lawyers, but great public servants. The skills that the study of rhetoric teaches us, allows us to be more effective in taking on the legal challenges lawyers face. Because of a lawyer’s unique position in society and the power we possess to implement change, rhetoric is more important to us than most.

According to Aristotle, the study of rhetoric enables individuals to discover “in the particular case what are the available means of persuasion.” Aristotle, Rhetoric. Philosophers who came after Aristotle such as Cicero extended this concept, noting that “the orators’ importance lies in their ability to bring help to the suppliant, to raise up those that are cast down, to bestow security, to set free from peril, to maintain men in their civil rights.” Dubinsky, “Service-Learning” pg.61). Professor Erin Kane’s Law & Rhetoric (L&R) course and Professor Jason Huber’s Civil Rights Clinic (CRC), both at the Charlotte School of Law (CSL) are working together this semester with the aim to help students hone in on these important rhetorical skills. This unique collaboration will help students in becoming more effective in their verbal communication and writing, making them into better advocates to serve society.

Aristotle, author of Rhetoric

We live in world where we can communicate instantaneously to almost anyone, making the study of rhetoric more important than ever. Videos and posts now go viral and can spark unprecedented change. From a man in Tunisia who set himself on fire in protest of his oppressive government which sparked demonstrations across the Arab world and what is now called the Arab Spring, to groups on Facebook who started an on-going revolution in Egypt: rhetoric is all around us.

Aristotle’s three persuasive audience appeals, EthosPathos, and Logos are rhetorical devices that we use every day and most often don’t even realize. Known as the Rhetorical Triangle, ethos means character; it is the convincing through credibility. When we have ethos, we are projecting our authority over a certain subject, conveying to the audience that we are someone worth listening too, such as a lawyer. Pathos refers to the persuasion of an audience through emotional appeal. Logos is the means of persuading through reasoning, it is most likely the most important for a lawyer, for it is our reasoning that we use to justify our arguments. When these three are in balance that is when we are most effective in our discourse.

In law school, students lack the time for an in-depth study of rhetoric. Professor Kane’s unique law school course allows her students to have the opportunity to provide rhetorical analysis concerning the projects the CRC will be working on this semester.

Professor Kane requires her students to do “service-learning” projects throughout the semester. These projects allow them to practice the rhetorical analysis they learn through real ongoing projects and at the same time become involved in the community. Beside’s working with the CRC, Professor Kane’s students are engaged in other service-learning projects like the Charlotte Men’s Shelter and local youth mentoring programs. Service-learning allows students to become involved in their communities and at the same time become modern rhetoricians. As lawyers, we are all “advocates,” the question remains, how effective we are at it, Professor Kane’s L&R course is as much about an in-depth study of rhetoric as it is realizing how effective we can be as orators and writers. Such collaboration between the CRC and the L&R course at CSL demonstrates an undertaking in which rhetoric will be used to make better lawyers by implementing the importance of civic values through service-learning.

Community involvement seemed to be essential to classical rhetoricians, for they emphasized using practical skills for the common good to the young men they were teaching. Dubinsky, “Service-Learning” pg.61). Such emphasis is becoming essential to many lawyers today. The Legal Ease Blog shows us the importance for lawyers to be involved in the community as well as its practical benefits. Lawyers helping their communities benefit from word of mouth, making traditional lawyer advertising unnecessary according to a post by Noble McIntyre, a personal injury lawyer in Ohio. The “highest point of contribution” students can make to society involves a balance between their talent, passion, and what’s available in the marketplace. The CRC students are indeed passionate about their work; just attend one of their meetings or meet one of them and you’ll see. The students of the L&R course are in collaboration with their passionate CRC colleagues to help them obtain their “highest point of contribution,” as well as obtain their own “highest point.”

While sitting in Professor Jason Huber’s CRC at CSL, one can easily see the importance of rhetoric in their work. The CRC exists to advocate for citizen civil rights causes. As advocates, the students have opportunities to implement important change to further protect the civil rights of its local community. While at a CRC meeting, one instantly recognizes Professor Huber’s unique facilitating style. The Clinic can get loud, really loud, ideas and laughter bouncing back and forth around the room: Professor Huber’s style, more appropriately his rhetoric, encourages and persuades his students to be effective and better advocates.

Regarding Bill Clinton’s speech at the DNC this year, CNN’s David Gergen wrote “Wednesday’s talk was the best and most influential he has given since leaving the White House a dozen years ago.” After the DNC, President Obama’s poll numbers bounced in his favor, showing the value of good rhetoric in today’s society.

The CRC is accomplishing great things. Great things like their work at this year’s Democratic National Convention, documenting protester arrests and making sure their civil rights were not infringed. There work with “Ban the Box,” a grassroots campaign in Charlotte aimed at encouraging employers to end employment discrimination based on past criminal records, advocating for another chance for these individuals to become revitalized members of the community. Also, the Rehabilitation Certificate project which focuses on advocating and obtaining court orders which issue certificates to these individuals showing that these citizens have been rehabilitated following a criminal conviction which in turn will help them secure better employment opportunities and improve their lives. The CRC also created a program which trains students to be hearing officers at Charlotte Housing Authority hearings’. Every week, the Charlotte Housing Authority holds Section 8 termination hearings to determine whether a participant’s voucher to affordable housing will be terminated. The students are trained to determine such issues, and by being involved in such a sensitive and important socio-economic issue, these students are diving into the realm of civic duty that classical rhetoricians in the past have written about. Such projects require law students to be engaged in the community, and the study of rhetoric will aid students of the CRC in their important endeavors by helping them in their effectiveness as society advocates.

This exciting new relationship will allow students from both the Civil Rights Clinic and the Law & Rhetoric course at the Charlotte School of Law to become modern day rhetoricians. Stressing the balance of Ethos, Pathos, and Logos and the importance of rhetorical analysis as a legal tool for our writing and verbal communications, as well as the civic duty lawyers carry in shaping our society.

By: John Hanna

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