THE FALL OF EYEWITNESS TESTIMONY AND THE RISE OF DIGITIAL EVIDENCE

by Samuel B. Burke

Jim Dwyer summed up the problems with memory beautifully when he wrote, “The real world of memory is made of bits of true facts, surrounded by holes that we spackle over with guesses and beliefs and crowded-sourced rumors.” Mr. Dwyer wrote those words in a report for the New York Times about the police shooting of David Baril in New York City in May of this year. Like many recent police shootings, the shooting of Mr. Baril was captured on video, in this case a surveillance camera, so there is quite a bit of certainty about what occurred. Mr. Baril pulled a hammer out of his coat and began chasing a police officer with it. After recognizing what was happening, a second officer pulled his gun and charged at Mr. Baril from behind shooting Mr. Baril before he could bring his hammer down on the first officer.

For most, witnessing something like this happening is a once in a lifetime experience. The kind of event people would expect to remember well. Because of the proliferation of video evidence (almost everyone with a smartphone is now a potential source of video), we are learning that even memories of unique events can be grossly inaccurate. One bystander who witnessed the Baril shooting reported that he heard a ruckus, some shouts, and then saw a police officer chase a man into the street and shoot him down in the middle of the street. A second witness reported that she saw a man who was handcuffed being shot. Neither of these two witnesses knew Mr. Baril or had any apparent motive to lie about what they saw.

What the Baril incident illustrates, that eyewitness testimony can be very unreliable, may be surprising to some, but it is no longer surprising to psychologists and scientists who study memory and eyewitness accounts. In 2015, the National Academy of Sciences released a report calling for an overhaul of how courts deal with eyewitness identification. The saying “justice delayed is justice denied”, may be especially true when cases are built on a witness’ recollection. Because, when it comes to long-term recollections, most memory researchers believe modifications to memory are constantly being made, with gaps in narrative being filled with experiences and expectations. This gap filling can lead even honest people to transform expectations into promises. For example, “I expected the plumber to stand behind his work” can become “the plumber told me he stood behind his work.”

Fortunately for those who depend on evidence to right wrongs, the explosion of digital information in its many forms seems to be filling the void that is being created by our loss of confidence in eyewitness accounts and witness recollection. Unfortunately, however, our justice system has not fully developed cost-effective logistical tools for the retrieval and processing of all this information. But those tools are on the way and they will likely continue to transform how and what evidence is presented in courtrooms across the country. For example, mobile data extraction devices now exist which crack password protected devices and recover deleted data. The software used by these devices can even render reports that show a timeline of the user’s interaction with the device such as text messages, phone calls, emails, etc. In the Arron Hernandez trial, police used cell phone information to place Mr. Hernandez at the scene of the crime, even though no eyewitness could do so. This evidence was so powerful that Mr. Hernandez’s lawyer was force to admit in closing argument his client was at the scene of the murder.

It is becoming more common for inspections of computers, smart phones, and other mobile devices to be made at the start of litigation. Also, fertile ground for investigation are social media postings such as those routinely made on Facebook and Twitter. Forbes recently reported on an example of the rise in the use of social media in litigation. The report in Forbes involved a worker whose Facebook posting became the subject of a discovery dispute and may ultimately decide the outcome of the case. Apparently, a man named Mr. Crowe claimed to have injured his knee at work. He sued his employer for the injury. Based on a message sent to a friend on Facebook, Mr. Crowe’s employer believed the knee injury may have occurred outside of work. In an apparent attempt to avoid the discovery of this message, Mr. Crowe deactivated his account and claimed he did not currently have a Facebook account. After the court became aware of Mr. Crowe’s verbal slight of hand, Mr. Crowe was ordered to turn over all 4,000 pages of information that had accumulated on his Facebook account since it was created. After the court reviewed the Facebook information Mr. Crowe produced, his case took a turn for the worse. A turn it may not have taken before the use of social media became so common.

We live in interesting times. We are learning that our recollections may not be as reliable as we once believed. At the same time, we are actively preserving more and more digital information about our everyday lives and the events around us. If current trends continue, court cases will be decided less and less by what witnesses say and more by the trail of digital information they create.