Witness Testimony and the Death Penalty: After Troy Davis, a Push for Eyewitness Reform

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Curtis Compton / Atlanta Journal-Constitution / AP

Virginia Davis, the mother of Troy Davis, holds a button in her lap pleading clemency for her son at her Savannah home, July 12, 2007. Georgia executed Troy Davis on September 21, 2011, for the murder of an off-duty police officer, a crime he denied committing.

Nearly a week after the state of Georgia executed Troy Davis, the emotions surrounding his case have calmed. Protestors and reporters have long since dispersed from their vigil outside the prison. The Twitter hashtag #toomuchdoubt — as well as its Wednesday night successor #RIPTroyDavis — is no longer trending. That's not to say, however, that the case won't continue to have an outsized effect on the criminal justice system in the U.S. While his execution alone — no matter how passionate his supporters — won't bring the death penalty to an end, there is one area where activists are hoping to use Davis' death as an ongoing and emotional rallying cry for reform: eyewitness identification.

In the 48 hours leading up to Davis' execution, the nation heard that the case against Davis was built entirely on eyewitnesses who said they saw Davis gun down off-duty cop Mark McPhail. But of the nine witnesses who testified against Davis in his original trial, seven would go on to change their mind and recant. As many outside observers pointed out, they were either lying on the stand, or lying now. There are two essential takeaways, then, from Davis' execution: First, that eyewitnesses are extremely unreliable, and second, that because of that unreliability, the death penalty shouldn't hinge solely on eyewitness recall.

That second point is why Al Sharpton and his National Action Network are now pushing for a new law in the wake of Davis' death. The law would forbid prosecutors from pursuing the death penalty in cases where there was no physical or scientific evidence. Under this law, he has said, "the Troy Davis case would never have been tried as a capital case in the first place."

Eyewitness problems plague non-death cases as well. In fact, the New York-based Innocence Project estimates that it's the single greatest cause of wrongful convictions nationwide. Some 75% of the false convictions they've uncovered not only involved non-matching DNA (the Innocence Project's specialty), but also eyewitness problems: poor handling, poor reliability, police coercion. The stories of hundreds of clients whose innocence was proven by DNA testing make up what Innocence Project co-founder Barry Scheck once referred to as "the greatest data set in the history of our criminal justice system." One clear finding in that data set is that a lot of Scheck's clients who were ruled innocent had also been positively (and ultimately, falsely) ID'd by witnesses in the original trial. As the number of cases where there is untested DNA dwindles in the U.S., Scheck says the Innocence Project is turning its attention to the next great area of need: eyewitness reform.

Just what is so wrong with eyewitnesses? It depends on who you ask. UC Irvine psychologist Elizabeth Loftus has done considerable research into the inherent unreliability of memory, how easily suggestible and completely self-deceptive it can be. Santa Clara County Assistant District Attorney Karyn Sinunu-Towery points to a number of potential variables that might affect a witness' ability to recall accurately: how far away they were from the scene, what the light was like, whether they were afraid, whether they are of a different race than the person they witnessed.

Each one of those factors can contribute to error and the cumulative result, watchdogs say, is an unacceptably high risk that witnesses might get something wrong — a prospect that pleases neither defenders nor prosecutors like Sinunu-Towery. "We had a case a few years ago where there was a bad identification and there was a reversal," Towery says. "We don't want that. Every time there's a wrong identification, it means the real criminal is still out there."

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