What the eye can see…

What the eye can see…

The reliability of eyewitness testimony is much in the news these days.

In August, the New Jersey Supreme Court made it easier for defendants to challenge eyewitness testimony before it gets to a jury. Last week, the U.S. Supreme Court was asked to do the same for the entire country.

Keeping the faith: One religious perspective on issues of the dayUnlike New Jersey’s jurists, however, the “nine wise men” in Washington seem disinclined to do so, judging from their questions during oral arguments. (Yes, I know the “nine wise men” include three women.)

The New Jersey decision was based on a two-year-long study by a special court-appointed master, retired Judge Geoffrey Gaulkin, who oversaw a review of approximately 2,000 scientific studies done since 1977 and also held extensive hearings. The court itself listened to several days of expert testimony.

What stands out is this: Eyewitness testimony played a role in an incredibly high 75 percent of convictions that were later overturned when DNA evidence exonerated the defendant. As New Jersey Chief Justice Stuart J. Rabner wrote for a unanimous court, this points to a “troubling lack of reliability in eyewitness identifications.”

Rabner added that “it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country.”

According to a report in The New York Times, “The decision listed more than a dozen factors that judges should consider in evaluating the reliability of a witness’s identification, including whether a weapon was visible during a crime of short duration, the amount of time the witness had to observe the event, how close the witness was to the suspect, whether the witness was under the influence of alcohol or drugs, whether the witness was identifying someone of a different race, and the length of time that had elapsed between the crime and the identification.”

The nine U.S. Supreme Court justices last week seemed less impressed. Liberal and conservative justices alike showed a reluctance to tamper any further with eyewitness identification. The current system offers sufficient protection, the justices all seemed to say.

“What about all the other safeguards that you have?” asked Associate Justice Ruth Bader Ginsburg. “You can ask the judge to tell the jury, ‘Be careful; eyewitness testimony is often unreliable.’ You can point that out in cross-examination.”

Ginsburg also noted that a defense attorney can point out the unreliability of eyewitness testimony during a summation to jurors.

“Why aren’t all those safeguards enough?” she asked.

For his part, Associate Justice Anthony M. Kennedy advised defense attorneys to “teach the jury” about eyewitness unreliability by demonstrating how jurors themselves have trouble remembering what they saw. He used dining in a restaurant as an example that could be pointed out to a jury. “Has it ever happened to you that midway in the meal you say, is that our waiter?” he suggested defense attorneys ask jurors in their summations.

To many, the tenor of the oral arguments merely confirmed their suspicion that the criminal justice system is less about justice and more about game theory. The “whole truth” is not what matters in court. What counts is the skill of the lawyers.

Whether this is a fair description of the American justice system, it surely is not the Torah’s way. At its most basic, the Torah is about leveling the playing field and protecting individual rights. “You and the alien who resides with you shall have one instruction [Torah] and one judgment [mishpat].” (See Numbers 15:16.) This is an admonition that is repeated several times throughout the Torah.

It is in the Torah that the prohibition against self-incrimination is first set down (and is made absolute; the Torah does not allow confessions to be used as evidence). Social status is also excluded from the courtroom; all are equal before the bar of justice as the Torah defines it.

The Torah also sets forth the need for a trial and the requirements for conviction. In several places, it insists on the eyewitness testimony of at least two people for a conviction to be possible. Thus, Numbers 35:30 states, “Whoever kills any person, the murderer shall be put to death by the evidence of witnesses, but one witness shall not testify against any person to cause him to die.” This requirement repeated in Deuteronomy 17:6 and extended to all other situations in Deuteronomy 19:15.

Not only is the phrase “by the evidence of witnesses” a clear indication that a trial must be held, it is also seen as barring a prosecutor’s use of circumstantial evidence and any evidence not capable of being seen by the naked eye – including DNA. The defense, on the other hand, is free to use any evidence available to it.

Because the Sages of Blessed Memory were not unmindful of the unreliability of eyewitness testimony, they also ruled that witnesses for the prosecution had to be subjected to an intense cross-examination, based on Deuteronomy 19:18-19, which states, “And the judges shall make diligent inquiries….” The Sages interpreted this to mean that emphasis must be placed during cross-examination on determining the integrity of the witness, not merely on whether he is telling the truth.

In fact, at least one talmudic authority insists that judges should go to some lengths to confuse the witnesses, or at least discomfit them sufficiently in order to trip them up. (See the comment of Rabbi Shimon ben Eleazar in the Babylonian Talmud tractate Sanhedrin 32b.) This became the operative opinion, as Maimonides codified in his Mishneh Torah, The Laws of Evidence 1:4.

Assuming all of the witnesses testify to the essential facts (another requirement) and their evidence is not shaken by the intense cross-examination, the court must then publicize a call for witnesses to testify on the defendant’s behalf. In fact, the court is required to continue seeking exculpatory evidence even after the verdict is rendered, sentence is passed, and the defendant is being transported to the place of execution.

The New Jersey State Supreme Court deserves much credit for its ruling. We will not know for certain how the U.S. Supreme Court will rule until it issues its decision next spring, but it is probably a safe bet that it will deserve no accolades.