Bad eyewitness testimony entitles defendant to a new trial

Every judge has his or her own passions. Over the years, Judge Rakoff of the Southern District of New York has written extensively about criminal justice, the power of prosecutors, the death penalty, and related issues addressing the fairness (or unfairness) of the criminal justice apparatus. The New York Review of Books publishes some of his articles. In this case, he addresses a similar issue about the ineffective assistance of counsel and the prejudicial use of eyewitness testimony. He finds that the defendant in this case was denied proper representation because counsel did not object to questionable eyewitness and other evidence.

The case is United States v. Nolan, issued on April 15. Judge Rakoff is sitting by designation in this appeal. Judges Sack and Hall agree with his analysis. Judge Rakoff surveys the recent social science research on the unreliability of eyewitness accounts. Then he gets into the facts, involving the defendant's alleged involvement in an armed robbery. The witnesses identified defendant, but all four such identifications had serious reliability problems, i.e., they did not identify defendant until they saw his photo in an array presented to them more than one month after the crime. But defendant's lawyer did not move to preclude these eyewitness accounts, and defendant was found guilty, as the prosecutor relied in part on those eyewitness accounts in summation. He now gets a new trial on this habeas corpus appeal.

The Second Circuit says that defense counsel could have prevailed on such a motion to preclude based on these problematic eyewitness accounts. And even if the motion failed, counsel could have educated the trial judge about "the frailty of the identifications." Judge Rakoff points out, in part, that while all the victims were black and Hispanic, defendant is white. "It is well established that eyewitnesses are materially less accurate when identifying individuals of a different race, or a different ethnicity." Also, many weeks elapsed between the crime and when the victims were shown the photo array. Precedent and social science research confirms that such a time gap is troublesome. The Court adds:

Finally, and perhaps most egregiously, the police employed highly irregular procedures in pursuing the witnesses’ identification of Nolan, potentially biasing the victims’ identifications by, for example, allowing them to talk among themselves about Nolan’s identification and allowing them to view his photos on Facebook. Studies have demonstrated that the memories of eyewitnesses are extremely susceptible to contamination by external information, a common source of which is “cowitness interaction.”

Another problem with trial counsel's performance was that he did not object when the prosecutors showed the jury defendant's Facebook picture holding a BB gun that looks like a handgun. The photo is not direct evidence of the crime, and it does not place defendant at the scene of the crime. While the government says the photo proves defendant's access to and comfort with firearms, that's a weak argument, the Court says, and it "must be weighed against the obvious prejudice to the defendant that would result from showing the jury a photo of a defendant charged with armed robbery posing with a gun of any kind." In the least, counsel should have asked the trial court for a limiting instruction on this photo to minimize the unfair prejudice. What it all means is that the conviction is vacated and defendant will have a re-trial.