“I-Witness” Testimony: The Problem of Remembering What Happened in Ferguson

*Author’s Note:  First and foremost, I extend my deepest sympathy to the family of Michael Brown.  Regardless of the circumstances, it does not change the fact that a young life was lost; a mother yearns for the warm embrace of her son; a family mourns the loss of a loved-one; a community struggles to understand and heal; and a nation is confronted with an opportunity to define its legacy. 

On November 24, 2014, a grand jury decided not to indict Officer Darren Wilson in the shooting of black teen Michael Brown.  Predictably, the decision has sparked angry protest, riots, and vigils across the nation.  The turmoil in Ferguson has ignited the embers of racial strain in our community.  It has forced us to reevaluate the relationship between justice and race in America.  We, as members of the legal community, must do our part to foster discussion and ultimately reform our judicial system to protect all persons. 

On November 24, 2014, a grand jury decided not to indict Officer Darren Wilson in the shooting of black teen Michael Brown.  All across the country, people have been reading through the trove of documents released by the prosecutor, Robert McCulloch, in the matter of Michael Brown to decipher how the grand jury reached its decision.  In his statement, McCulloch said that the grand jury was presented with all of the physical evidence gathered, all eyewitness testimony, and any and all other related matters.  Among other things, Ferguson highlighted one of the most significant challenges of eyewitness testimony – faulty recollection. 

The grand jury was presented with various conflicting accounts of the same tragic incident.

An analysis of all of the documents revealed “numerous examples of statements made during the shooting investigation that were inconsistent, fabricated or provably wrong.”  Most notably, some witnesses adamantly testified that Michael Brown had been shot in the back multiple times as he was running away; however, the autopsy report prepared by the medical examiner ultimately showed that Brown had not been struck in the back by any bullets.  It’s not a matter of people lying, suggested McCulloch –“I think they truly believe that’s what they saw, but they didn’t.”  McCulloch’s statement is certainly not the first indictment of the reliability of eyewitness testimony; however, the likely influence the inconsistent eyewitness testimony had on the jury’s decision whether or not to indict certainly merits a discussion of the role of eyewitness testimony.    

Traditionally, eyewitness testimony has been an important investigative tool; however, some studies have brought into question the reliability of witness recollection.  The core issue here is the prevalent misconception about how memory works.  Memories are not stored in our brains like books on a bookshelf, readily accessible whenever we want.  To the contrary, memories are reconstructed rather than played back each time we recall them.  Thus, our memories are vulnerable to being unconsciously altered or invented due to various factors, including stress and suggestive misinformation.  Further, our memories are affected by our biases, preconceptions, and expectations.  For example, eyewitnesses are just as susceptible to media influence as anyone else.

Understandably, the shooting of Michael Brown received national attention and continues to do so.  Social media incited strong passions in the nation’s heart.  Immediately, accounts of the incident were spread across social media, including a Twitter campaign encouraging users to report the hashtag #iftheygunnedmedown, which posed the question “If they gunned me down, what photo would you use?”  The lack of information provided to the public prompted people to seek information from wherever possible.  In doing so, witnesses likely filled in the gaps in their memory with assumptions based on information they heard.

As previously mentioned, eyewitness testimony has long been a commonly used investigative tool.  However, as practitioners, it’s important that we take this opportunity to earnestly reevaluate our reliance on this often-unreliable tool.  First, we as practitioners must educate ourselves on this phenomenon, so that we can adequately and effectively minimize errors.  While our justice system provides some procedural safeguards­—cross-examinations—to test the veracity of a witness’s recollection, practitioners cannot rely solely on these safeguards. Second, we must adamantly educate jurors on this phenomenon.  And finally, the legal profession should consider revising the structure of a grand jury to permit cross-examination, so that a witness’s recollection is tested early in the process rather than later.  As seen in Ferguson, once an eyewitness has reconstructed and adopted a specific account of events (e.g., Brown was shot in the back) then it becomes difficult to overcome that even when faced with physical evidence (e.g., the autopsy report). The old adage that a grand jury would indict a ham sandwich should not be acceptable.  An indictment itself can have severe collateral consequences for an accused person.   This phenomenon affects both sides–prosecutors and defense–equally.  While defense attorneys have an obligation to protect their client from wrongful conviction, prosecutors have an obligation judicially and economically to serve the public interest.  Accordingly, it is in the best interest of justice that all members of the legal profession work together to reevaluate the roll of, and minimize the errors of, eyewitness testimony. 

Saifuddin Kalolwala

Staffer, Criminal Law Practitioner

Photo by Deval Kulshrestha via Wikimedia Commons