by Brandon L. Garrett, Professor of Law, University of Virginia School of Law. Since the 2011 publication of Convicting the Innocent: Where Criminal Prosecutions Go Wrong, Professor Garrett has written widely on issues of criminal procedure, scientific evidence, corporate crime, and the law. This fall, Harvard University Press published his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.
“He’s a grown man today, he was just a boy back then,” said Ricky Jackson upon his release from prison last week. “I don’t hate him.” Jackson spent 39 years behind bars, more than any other person exonerated in the U.S., according to the National Registry of Exonerations. Jackson was speaking of the 12 year-old who had identified him and two others as murderers, and whose testimony in 1975 sent him to Ohio’s death row. Last week, the eyewitness admitted his testimony was “all lies.” There was no other evidence in this case: no forensic evidence, physical evidence, or other witnesses. The exoneration highlights just how malleable eyewitness testimony can be, and how important it is to get it right.
This Fall, the National Academy of Sciences published an important report “Identifying the Culprit: Assessing Eyewitness Identification.” I was a member of the committee that produced the report. The report evaluates decades of research on eyewitness memory and it details scientific procedures that can help to prevent error.
Those recommended procedures were not used in Jackson’s case—far from it. The 12 year-old, named Eddie Vernon, told police he saw the murder of a storeowner by three people: Jackson, and two brothers, Ronnie and Wiley Bridgeman. Vernon was unable to identify the suspects from photos. That alone should have been a red flag. Later, a detective showed Vernon a lineup of seven men, which included Jackson. He could not identify anyone. So he was “taken out of the room,” according to an appeals court, where he “told the policemen that he had not said anything at first because he had been afraid.” Now he identified Jackson. But he did not change his mind on his own. Police apparently shouted and threatened to charge him with perjury if he did not identify Jackson. Last week, when Jackson was exonerated, Vernon told the judge, “Do you really think as a 12-year old I could stand up to those detectives screaming in my face?”
Far more subtle forms of suggestion can influence an eyewitness. As I have described in a book, DNA testing has exonerated scores of people in cases where eyewitnesses were not coerced, but rather police used outdated and error-prone identification procedures. The National Academy of Sciences report recommends identifications be conducted “blind” or “blinded,” just like an experiment, so the person running the procedure cannot inadvertently signal the answer. Standard instructions should make clear that the suspect may or may not be present in the lineup. The eyewitness should be asked to describe confidence upon making an identification. Procedures should be videotaped so that there is a clear record of what transpired. Obviously, the procedures described in Jackson’s case were brutal and nothing resembling scientific practices.
Why didn’t judges release Jackson years ago? The National Academy of Sciences report highlights how judges should be far more sensitive to research on eyewitness memory. Back when Jackson was convicted, the judges seemed totally unaware there was anything wrong with a 12 year-old identifying three murder suspects, when previously he could not. The Supreme Court of Ohio in 1978 said evidence against Jackson “was not so slight or of so little probative value” that a jury could not convict him. Why? There was an eyewitness. And Jackson’s lawyer was appointed only four days before this death penalty trial. His lawyer complained he had “virtually no time...to do independent investigation, talk to the prosecution witness, Edward Vernon, or determine a trial strategy.” Yet, the trial judge saw no problem because after all, this was a case where “the evidence was highly credible.” The National Academy of Sciences report highlights the need for pretrial investigation of eyewitness evidence, careful judicial inquiry, and use of expert witnesses to explain the science to the jury.
Should any criminal case be based solely on the memory of an eyewitness, much less a death penalty case, when unsound identification procedures are used? In response to wrongful convictions and scientific research, a number of states have adopted improved lineup procedures. But as the National Academy of Sciences report describes, many jurisdictions have not done so. It is a sign of changing times that the prosecutors, who the Ohio Innocence Project called heroes, readily agreed it was “obvious” that Jackson should be exonerated, with the eyewitness recanting and discredited. It is equally obvious that eyewitness identification testimony must be put on a firm scientific footing.