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"I know what I saw." Looking closer at eyewitness testimony

Criminal charges such as assault and domestic violence often hinge on witness statements. A concerned neighbor or passing stranger calls 911. Friends or family give an earful to the responding officers. Social media lights up and weighs in.

Witness testimony can be critical to the prosecution (and the defense). But from a criminal law perspective, witnesses are highly unreliable. People may be perfectly earnest in reporting what they saw or heard -- with no personal stake in the case or reason to embellish - and still be dead wrong.

Take the recent fatal shooting by Minneapolis police, a case that made national headlines and could have easily happened here in Wisconsin. The wide variation in the accounts of witnesses at the scene played a role in the county prosecutor's decision not to indict the officers. A dozen witnesses told investigators that Jamar Clark was handcuffed at the time he was shot. However, their accounts differed markedly on a key detail: he was cuffed in front, he was cuffed behind his back, one hand was cuffed, both hands were cuffed. Another six bystanders couldn't say one way or the other, while two witnesses were positive the victim was not handcuffed. Many of those firsthand accounts contradicted the forensic evidence -- investigators did not find Clark's DNA on the handcuffs or telltale bruising on his wrists.

How can so many eyewitnesses see or recall the same incident so differently? Actually this is a well-documented phenomenon. In a fight or other altercation, things happen fast. Proximity and angles and lighting affect perceptions. Bystanders rarely witness the entire event from start to finish. And memory does not work like a camera. Memories are constructed, influenced by the witness's own biases and state of mind. Memories also morph over time.

In other words, witnesses often did not see what they think they saw, and important "facts" in their recall of events may change. But memories are powerful. Studies show that witnesses will cling to their version even when confronted with clear evidence to the contrary. "I know what I saw."

Throughout history, people have been falsely convicted and imprisoned on the word of witnesses. The advent of DNA testing has exonerated some of them, including cases in which two or more "witnesses" wrongly identified an innocent person.

It shouldn't come to that. A good criminal defense lawyer will know how to analyze and cross-examine a witness's version of the event - challenging statements to police, statements to the media, and testimony in depositions or in court. Does the prosecution's witness have a bias or reason to shade the truth? Was the witness coached, coerced or influenced? Has their story changed? Does video evidence or another witness tell a different story?

Science and history tell us that witnesses often get it wrong - but that juries are swayed by witnesses. The issues raised in the Minnesota police case could apply to an ordinary citizen facing assault or homicide charges in Wisconsin. If you find yourself accused of a crime on the basis of what some third party saw or heard, you will need an experienced defense lawyer who asks the right questions to cast reasonable doubt on that person's recollections. Otherwise it's your word against theirs. Who will the jury believe?

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