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