Yet Another Reversal With a Witness Issue

Kevin Lee Green, DeWayne McKinney, Herman Atkins and now Arthur Carmona. All were convicted of serious crimes, largely on the testimony of eyewitnesses.

All were incarcerated. And all walked free--some, decades later--before their sentences ran their course.

Carmona’s overturned conviction is the latest ammunition for an argument many legal experts have been making for years: Thousands of innocent people go to prison every year, and in most of those cases, bad eyewitness testimony plays a leading role.

“No question about it: Faulty eyewitness testimony is the biggest cause of innocent people being found guilty and hauled to prison,” said Elizabeth Loftus, a University of Washington psychologist and published expert on that phenomenon.

Carmona served several months in local jail and two years at the California Youth Authority after his arrest and conviction for the robbery of an Irvine juice bar and a Costa Mesa restaurant.

No physical evidence linked Carmona to the robberies. Instead, eyewitness testimony led to the teen’s conviction. Since then, two jurors expressed misgiving about the outcome, and a key witness recanted her testimony, saying prosecutors misled her.

“Take all the other factors that led to a person’s wrongful conviction--circumstantial evidence, for example--and they don’t add up to [the damage caused by] bad testimony,” Loftus said.

In recent years, bad eyewitness testimony put Anthony Porter two days away from an execution for a 1982 double murder in Illinois he did not commit.

It sent Rubin “Hurricane” Carter to prison for 20 years for a triple murder he and another man had nothing to do with.

McKinney, 39, was wrongly convicted of murder in Orange County nearly two decades ago.

Atkins, 34, was exonerated of rape after 12 years in California prisons, during which there were three attempts on his life.

And Tustin resident Green served 16 years for the attempted murder of his pregnant wife and the murder of his daughter. His wife named him as the murderer. But he never committed the crimes, DNA tests proved.

When Memory Fails and Suggestion Fills In

Experts note some of the pitfalls of eyewitness testimony: People forget. They can be swayed by police or prosecutors--picking out a certain person in a lineup at their suggestion, for example.

“Before a lineup, police generally don’t tell potential witnesses that the suspect may or may not be there,” Loftus said. “Police need to communicate to these people--who really want to do the right thing--that it’s just as important to exonerate as to catch a person.”

Sometimes police officers will volunteer information to a witness that suggests a certain person’s guilt, said Charles Weisselberg, a law professor at UC Berkeley’s Boalt Hall. Sometimes witnesses think they saw a face or an event unfolding for minutes when it may have been seconds, he said.

The advent of DNA testing has been fortuitous, experts say, because it has freed people who probably would have died in prison had it not been found that someone else had committed the crime.

But while DNA presents great opportunities for freeing potentially innocent inmates, not all cases can be checked with genetic testing. Some cases produce no usable biological evidence. And, as with Carmona, thousands of cases hinge on eyewitness testimony.

Because of this, other steps have to be taken to protect the integrity of the legal system, experts say.

“We need to find ways to ensure that juries are able to assess the evidence accurately” so that they don’t overestimate the value of eyewitness testimony, Weisselberg said. “Over the last 20 years, there have been psychological studies that point to the weakness of eyewitness identification.”

Many jurors, for instance, believe that people who witness traumatic incidents have images indelibly etched into their minds, or that police officers have the best memories. That’s not necessarily true, Loftus said.

The bottom line in avoiding false convictions, experts say, is educating jurors that eyewitness testimony may not be the most reliable type of evidence in all cases. And a more forthright relationship between possible witnesses and law enforcement officials is needed, they add.

“There are estimates that say between 8,000 and 10,000 people are falsely convicted each year,” Loftus said. “That’s a lot of people.”