by Patrick Appel
A reader writes:
I know firsthand how unreliable eyewitness testimony can be. Quite some years ago, I was getting cash from the ATM across the street from my NYC apartment. As I was doing my transaction, I looked up, and a man was walking in who did not look like he belonged there. We were alone in the ATM. My instinct was to leave, but I said "now, don't be racist, just do your business and go." A moment later, the man walked over to me, pulled out a very large knife, and told me to withdraw $400 and give it to him. He told me his son needed an operation, and I would die before he let his son die. After a few false starts due to my shaking hands, I gave him the money, and he left, after warning me not to move until I counted to 100. I watched him walk away, and as soon as he was gone, I picked up the security phone in the bank.
Within a few brief minutes, bank security was there, and then a few minutes after, the police were there. Bank security told me there would be a video of the transaction, and that they were having it pulled, and then my money would be refunded. I gave a description to the policeman, a vague "African-American, average height, average build, wearing jeans and a hoodie." He put it out on his radio, and within a few minutes, he got a call back that some officers had stopped someone on the street meeting that description. They put me in a squad car to go see if this was the man who had had robbed me. This all happened very quickly.
I asked if the man they stopped had a knife and a wad of cash. He didn't, they said, but he was behaving "suspiciously." We drove to where the man was, and he was surrounded by about 10 police officers standing on the sidewalk. The officer in the car asked me if it was him. I said I wasn't sure, that he looked similar, but I didn't know. I asked if they couldn't just hold him until they saw the video from the bank. He didn't answer, but I knew the answer was no, not unless I identified him. So the officer in charge had them bring the man closer to the car, under a street lamp so I could get a better look. Two officers then really badgered me, having me look at him at different angles, in different light, etc. asking "Are you more sure, or less sure than you were before?" each time. They would tell me they didn't want to pressure me, but they were doing just that. I kept saying I wasn't sure, I didn't know, I couldn't really say, if only we could see the video. This went on for quite some time. The cops had loud conversations in my hearing "well, she can't identify him, we'll have to let him go, goddam it." I knew exactly what they were doing, and I knew what they needed me to do. After a long time, and a lot of agony, I said "okay, it's him." I truly wasn't sure, but "maybe" wasn't good enough, and I was sure they would be able to compare him to the video within a few hours, and if it wasn't him, they'd let him go.
Once I identified him, as tentatively as I had, the police officers treated it as if they had caught him in the act, as if my identification was 100% positive. It was as if all doubt had been erased. It was rather shocking, actually. We next went to the police station, and they parked me on a bench, and paraded this guy in front of me several times. I knew what was going on. I would soon become so familiar with his face that it would be very hard for me to separate out my recognition of the man who robbed me and the man who I saw in the police station. I am an attorney, not a criminal attorney, but I know enough criminal law, and I wrote a brief in law school about unreliability of eyewitness testimony, believe it or not.
I went away for the weekend, and I couldn't sleep a wink. Not because I had been held up at knife point, and my life threatened, but because I feared I had identified the wrong man. Of course, I had. The videotape showed that he was not the man. Fortunately, the man I identified was only held for a few brief hours, and released. Had there been no videotape, or if it was not clear, that man may have gone to jail for a crime he did not commit. I would not have repeated my identification if it turned out there was no video; I had decided that over that weekend, but I'm sure many people would have, because they would have felt pressure to do so, and would not have understood how tainted their identification had become.
The interesting coda to this is that several months later, I got a call from the police that they had arrested a man for armed robbery at ATM's, and they wanted me to come view a lineup. I was shocked. They would never be able to use my testimony, given that I had previously identified someone else, but I went anyway, to do my civic duty. I was determined this time that I would not identify anyone unless I was 100% certain. Shockingly, as soon as I saw the lineup, I was virtually certain I recognized the man who had robbed me, even after all these months, but because I wasn't 100% certain, and because I knew they'd never have me testify anyway, I said I didn't know. The police officer walked me outside, and I asked him why they'd bothered to have me come. He said they just wanted to close my case, they'd had about a dozen people already identify this guy. He also said that he thought that I recognized the guy in the lineup, he could tell by my face. He asked who I thought it was, and I told him, and he told me I was right, that was the guy.
There's something about a face. I should have known that if I wasn't sure about the first man they stopped, then it was NOT him. Under different circumstances, that first man could have gone to jail because he was walking while black in the wrong place at the wrong time.
The Dish 