Grainy video and eyewitness testimony gets criminal defendant a new trial

 Eyewitness testimony. Do you trust it? In recent years, the courts have looked more carefully at eyewitness accounts, noting that such accounts are often unreliable. In this case, the New York Court of Appeals chips away a little further on eyewitness testimony and holds that the criminal conviction needs to be vacated.

The case is People v. Mosley, issued on April 23. Here is what happened: police cameras in Syracuse captured a grainy video of a man running through the street firing three shots into a van. No one saw the shooter. But again, it was hard to know who was captured on the video. So the police looked around for people who could identify the guy in the video. They found Detective Kilburn, who said Mosely was the guy in the video. Kilburn testified that knew Mosley and had sat in a room with him in the past (maybe in relation to other cases). 

Kilburn accordingly told the jury that he met Mosley about seven months after the video was captured during his routine “canvassing” of the Syracuse neighborhood where the shooting occurred, had known him for about a year and a half, and that he had “interacted” with Mosley, “walked” with him, and spoken with him on a “couple” of occasions. He testified that he was familiar with Mosley’s “body language,” “body type,” and “build.” He then viewed the video and identified the shooter as Mosley. He explained that though he did not know Mosley at the time of the shooting and did not know what Mosley had been wearing that day, he based his identification on his interactions with Mosley, his “build,” the “shape of his nose,” and “on previously viewing the video and being able to zoom in and stuff.” Though he referenced Mosley’s nose, he conceded when shown screenshots of the video “the face is a blur” and there was no nose apparent at all. Kilburn also opined that Mosley’s appearance had not changed, and that Mosley “as he sits there now is the same as when I first encountered him, which is the same as he appears in that video.”

This testimony was not admissible, the Court of Appeals holds under a "totality of the circumstances" test, as (1) "the People did not establish that Kilburn was sufficiently familiar with Mosley to render his identification helpful to the jury"; and (2) "Kilburn did not connect any distinctive traits of Mosley’s to the person depicted in the surveillance photo. Before the jury, Kilburn stated that he was familiar with Mosley’s 'build,' 'body language,' 'body type,' and the 'shape of his nose.'" Admitting this testimony was not harmless error, as it probably convinced the jury that Moseley was the man in the video. The case will have to be tried again. Whether the prosecution has enough evidence without Kilburn's testimony is not clear.
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