Why eyewitnesses get it wrong Scott Fraser

the murder happened a little over 21

years ago January the 18th 1991 in a

small bedroom community of Lynwood

California just a few miles southeast of

Los Angeles father came out his house to

tell his teenage son and his five

friends that it was time for them to

stop horsing around on the front lawn

and on the sidewalk to get home finish

their schoolwork prepare themselves for

bed and as the father was administering

these instructions a car drove by slowly

and just after it passed the father and

the teenagers a hand went out from the

front passenger window and bam bam

killing the father and the car sped off

the police investigating officers were

amazingly efficient they considered all

the usual culprits and in less than 24

hours they had selected their suspect

Francisco Carrillo a 17 year old kid who

lived about two or three blocks away

from where the shooting occurred

they found photos of him they prepared a

photo array and the day after the

shooting they showed it to one of the

teenagers and he said that’s the picture

that’s the shooter I saw that killed the

father that was all a plenary hearing

judge had to listen to to bind mr.

Carrillo over to stand trial for

first-degree murder in the investigation

that followed before the absolute trial

each of the other five teenagers was

shown

photographs the same photo array the

picture that we best can determine was

probably the one that they were showing

the photo a is in your bottom left-hand

corner of these mug shots the reason

we’re not sure absolutely is because of

the nature of evidence preservation in

our judicial system but that’s another

whole TEDx talk for later so at the

actual trial all six of the teenagers

testified and indicated the

identifications they had made in the

photo array he was convicted he was

sentenced to life imprisonment and

transported to Folsom Prison so what’s

wrong

straightforward fair trial full

investigation oh yes no gun was ever

found no vehicle was ever identified as

being the one in which the shooter had

extended his arm and no person was ever

charged with being the driver of the

shooters vehicle and mr. Curry’s alibi

which of those parents here in the room

might not lie concerning the whereabouts

of your son or daughter in an

investigation of a killer except prison

adamantly insisting on his innocence

which he has consistently for 21 years

so what’s the problem the problem is

actually for this kind of case come many

fold from decades of scientific research

involving human memory first of all we

have all the statistical analyses from

the Innocence Project work where we know

that we have what 250 280 documented

cases now where people have been

wrongfully

victim and subsequently exonerated some

from death row on the basis of later DNA

analysis and you know that over

three-quarters of all of those cases of

exoneration involve only eyewitness

identification testimony during the

trial that convicted them we know that

eyewitness identifications are foul well

the other comes from an interesting

aspect of human memory that’s related to

various brain functions but I can sum up

for the sake of brevity here in a simple

line the brain have Horrors a vacuum

under the best of observation conditions

the absolute best we only detect encode

and store in our brains bits and pieces

of the entire experience in front of us

and they’re stored in different parts of

the brain so now when it’s important for

us to be able to recall what it was that

we experienced we have an incomplete we

have a partial Thor and what happens

below awareness with no requirement for

any kind of motivated processing the

brain fills in information that was not

there not originally stored from

inference from speculation from sources

of information that came to you as the

observer after the observation but it

happens without awareness such that you

don’t aren’t even cognizant of occurring

it’s called reconstructed memories it

happens to us in all the aspects of our

lives all the time it was those two

considerations among others

reconstructed memory the fact about the

eye witness infallibility that was part

of the instigation for a group of Appeal

attorneys led by an amazing lawyer named

Ellen Eggers to pool their experience

and their talents together and petition

the Superior Court for a retrial for

Fran

sisqó Carillo they retained me as a

forensic neurophysiologist because I had

expertise in eyewitness memory and

identification which obviously makes

sense for this case but also because I

have expertise and testify about the

nature of human night vision well what’s

that got to do with this well when you

read through the case materials in this

curio case one of the things that

suddenly strikes you is that the

investigating officers said the lighting

was good at the crime scene at the

shooting all the teenagers testified

during the trial that they could see

very well but this occurred in

mid-january in the northern hemisphere

at 7:00 p.m. at night so when I do the

CAD did the calculations for the lunar

data and the solar data at that location

on earth at the time of the incident of

the shooting all right it was well past

the end of civil twilight and there was

no moon up tonight so all the light in

this area from the Sun of the Moon is

what you see in the screen right here

the only lighting in that area had to

come from artificial sources and that’s

where I go out and I do the actual

reconstruction of the sea with

photometers with various measures of

illumination and various other measures

of of colour perception along with

special cameras and high-speed film

right take all the measurements and

record them and then take photographs

and this is what the scene looked like

at the time of the shooting

from the position of the teenagers

looking at the car going by and shooting

this is looking directly across the

street from where they were standing

remember that vestigation officers

report said the lighting was good

Teter just said they could see very well

this is looking down to the east where

the shooting vehicle sped off and this

is the lighting directly behind the

the teenagers as you can see it is at

best poor no one’s going to call this

well-lit good lighting and in fact as

nice as these pictures are and the

reason we take this I knew I was going

to have to testify in the court and a

picture is worth more than a thousand

words when you’re trying to communicate

numbers abstract concepts like Lux the

international measurement of

illumination the Ishihara color color

perception test values when you present

those to people who are not well versed

in those aspects of science net they

become salamanders in the noonday Sun

it’s like talking about the tangent of

the visual angle all right their eyes

just glaze over all right a good

forensic expert also has to be a good

educator a good communicator and that’s

part of the reason why we take the

pictures to show not only the where the

light sources are and what we call the

spill the distribution but also so that

it’s easier for the Trier of fact to

understand the circumstances so these

are some of the pictures that in fact I

use quite testify but more importantly

work to me and the scientists are those

readings the Fatah Marines which I can

then convert into actual predictions of

the visual capability of the human eye

under those circumstances and from my

readings that I recorded at the scene

under the same solar and lunar

conditions at the same time so on and so

forth I could predict that there would

be no reliable color perception which is

crucial for face recognition and that

there would be only schoo topic vision

which means there’d be very little

resolution what we call boundary or edge

detection and that furthermore because

the eyes would have been totally dilated

under this light the depth of field the

distance at which you can focus and see

details would have been less than 18

inches away I testified to that to the

court and while the judge was very

attentive it had been a very very long

hearing for this petition for a retrial

and as a result I noticed out of the

corner

that I II thought that maybe the judge

was going to need a little more of a

nudge than just more numbers and here I

became a bit audacious and I turn and I

asked the judge I said Your Honor I

think you should go out and look at the

scene yourself now I may have used the

tone which is more like a dare than a

request but nonetheless it’s to this

man’s credit and his courage that he

said yes I will a shocker

in American jurisprudence so in fact we

found the same identical division so he

reconstructed the entire thing again he

came out with an entire brigade of

sheriff’s officers to protect him in

this in this community we had him stand

actually slightly in the street so

closer to the suspect vehicle shooter

vehicle then the actual teenagers were

so he stood a few feet from the curb for

the middle of the street

we had a car that came by same identical

car as described by the teenagers right

they had a driver and a passenger and

after the car had passed the judge by

the passenger extended his hand pointed

it back to the judge as the continued on

just as the teenagers had described it

right now he didn’t use a real gun in

his hand

so he had a black object in his hand

that was similar to the gun that was

described he probably bought and this is

what the judge saw this is the car 30

feet away from the judge there’s an arm

sticking out of the passenger side and

pointed back at you that’s 30 feet away

some up to usurer said that that in fact

the car was 15 feet away when it shot

okay

there’s 15 feet at this point I became a

little concerned

this judge is someone you never want to

play poker with I he was totally stoic I

couldn’t see a twitch of his eyebrow I

couldn’t see and the slightest bending

of his head I had no sense of how he was

reacting to this

and after he looked at this reenactment

he turned to me and he says is there

anything else you want me to look at I

said your honor

and I don’t know whether I was

emboldened by the scientific

measurements that I had in my pocket and

my knowledge that they are accurate or

whether it was just sheer stupidity

which is what the defense lawyers

thought when they heard me say yes your

honor I want you to stand right there

I want the car to go around the block

again and I want it to come and I want

it to stop right in front of you three

to four feet away and I want the

passenger to extend his hand with a

black object to point right at you and

you can look at it as long as you want

and that’s what he saw

you’ll notice which was also in my test

report all the dominant lighting is

coming from the north side which means

that the shooters face would have been

photo occluded would have been backlit

furthermore the roof of the car is

causing what we call a shadow cloud

inside the car which is making it darker

and this is three to four feet away why

did I take the risk

I knew the depth of field was 18 inches

or less three to four feet and might as

well had been a football field away this

is what he saw went back there was a few

more days of evidence that was heard at

the end of it he made the judgment that

he was going to grant the petition for a

retrial and furthermore he released mr.

Carrillo so he could aid in the

preparation of his own defense if the

prosecution decided to retry him which

they decided not to he is now a freed

man

this is this is him embracing his

grandmother in law he his girlfriend was

pregnant when he went to trial right and

he had a little baby boy he and his son

are both attending Cal State Long Beach

right now taking classes what does what

does this example what’s important to

keep in mind for ourselves first of all

there’s a long history of antipathy

between science and the law in American

jurisprudence I could regale you with

horror stories of ignorance over decades

of experience as a forensic expert of

just trying to get science into the

courtroom the opposing counsel always

fight it and oppose it one suggestion is

that all of us become much more attuned

to the necessity through policy through

procedures to get more science in the

courtroom and I think one large step

toward that is more requirements with

all due respect to the law schools of

science technology engineering

mathematics for anyone going into the

law because they become the judges think

about how we select our judges in this

country it’s very different than most

other cultures the other one is I want

to suggest the caution that all of us

have to have I constantly have to remind

myself about just how accurate are the

memories that we know are true that we

believe in there is decades of research

examples and examples of cases like this

where individuals really really believe

none of those teenagers who identified

him thought that they were picking the

wrong person none of them thought they

couldn’t see the person’s face we all

have to be very careful all our memories

are reconstructed

they are the product of what we

originally experienced and everything

that’s happened afterwards

they’re dynamic they’re malleable

they’re volatile and as a result we all

need to remember to be cautious that the

accuracy of our memories is not measured

in how vivid they are nor how certain

you are that they’re correct thank you