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Tuesday, January 22, 2013

The Flaws Of Eyewitness Identification

People often treat eyewitness identifications as if they are cold hard facts. Unfortunately, as humans our minds can often fail us when recounting visual perception. Eyewitness misidentification is an all too common factor in wrongful convictions that were eventually overturned by DNA evidence.

A few reasons why mistaken identity occurs is because of bad lighting, the view was from a long distance away, or possibly the witness only caught a brief glimpse of the culprit. Other reasons include the fact that our memories are flawed. Our brain can't remember a face as accurately as it does when it's actually viewing it. Our memories are able to be manipulated, we can replace missing information with things we see on TV, read in the news, hear from police officers, or other memories can factor in. Additionally, our brain often distorts sizes and colors. Colors may be remembered as darker or brighter, large sizes are remembered smaller, etc.

Other reasons for mistaken identity fall on the procedures used during photo identifications or lineups. During a photo I.D., the eyewitness may not be told that the suspect's photo is not among the choices. Since they assume the suspect's photo is among the choices and they point out the person who's face is most similar to the one in their memory. In a photo I.D., if the "distractors" and the suspect's photos differ from one another, a person can be more inclined to pick the photo that stands out to them. Contributing factors are lighting, contrast, background, where the face is in relation to the frame, etc.

With lineups, people will often choose the same person they chose in the photo I.D. for the sake of consistency, even when the photo chosen is incorrect. Other times, if the person conducting the lineup knows who the offender is among the choices, they can inadvertently or intentionally signal to the eyewitness whom to choose.

The InnocenceProject.org lists several policies that should be adopted to implement reform in our justice system.
  • Blind administration: Research and experience have shown that the risk of misidentification is sharply reduced if the police officer administering a photo or live lineup is not aware of who the suspect is. 
  • Lineup composition: "Fillers" (the non-suspects included in a lineup) should resemble the eyewitness' description of the perpetrator. The suspect should not stand out (for example, he should not be the only member of his race in the lineup, or the only one with facial hair). Eyewitnesses should not view multiple lineups with the same suspect. 
  • Instructions: The person viewing a lineup should be told that the perpetrator may not be in the lineup and that the investigation will continue regardless of the lineup result. They should also be told not to look to the administrator for guidance. 
  • Confidence statements: Immediately following the lineup procedure, the eyewitness should provide a statement, in his own words, articulating his level of confidence in the identification 
  • Recording: Identification procedures should be videotaped whenever possible - this protects innocent suspects from any misconduct by the lineup administrator, and it helps the prosecution by showing a jury that the procedure was legitimate. 
Even with technological advancements, oftentimes eyewitness identification is still flawed, so if you have been identified as the perpetrator in a criminal matter please contact Massachusetts Criminal Defense Attorney Paul R. Moraski at (978) 744-1200.

Paul R. Moraski, Esq.
The Law Office of Paul R. Moraski
221 Essex Street, Suite 51
Salem, Massachusetts 01970
Tel: 978.744.1200
Fax: 978.825.1370
Email: attorneymoraski@yahoo.com

The Benefits Of A Polygraph Test

A polygraph is an instrument that is designed to measure changes in physiological reactions, such as blood pressure, pulse, and the rate of sweating or breathing. The use of this machine is controversial. Even though they are not admissible in Massachusetts court rooms, this does not mean that the polygraph machine does not serve other purposes for Law Enforcement Officers and Criminal Defense Attorneys.

Although these test results are not 100 percent conclusive, there are occasions when it can be beneficial to submit to a test:
  • The passing of a private polygraph test could force the Prosecution to take a closer look at their case. This could result in a plea bargain, a sentencing agreement, or dismissal of a charge or charges. 
  • In some circumstances, the passing of a polygraph could result in the Prosecution cooperating with the Defendant while seeking out a criminal case against other individuals. 
  • Oftentimes, there are multiple Co-Defendants in a case and Prosecutors are unsure whether a particular Co-Defendant had any culpability in committing the alleged crime and therefore the Co-Defendant gets charged with a crime out of caution. However, a successful polygraph test may make the Prosecution focus their efforts elsewhere. 
  • In the instance where a juvenile is facing expulsion from school for a matter that occurred on school property, often times the only witnesses are other minors. You may carry some leeway in the eyes of the school board in preventing the expulsion if the polygraph results are favorable to your child. 
Please understand that the above-referenced examples are just a few examples of when taking a polygraph test may help a suspect’s situation. The decision to take a polygraph test is made on an individual basis and you should consult an experienced Criminal Defense Attorney before ever making such a decision.

While there are a great deal of myths surrounding ways to cheat a test, such as taking drugs to reduce blood pressure or anxiety, applying antiperspirant all over one's body, controlling breathing, etc. These tactics are detectable to a trained polygraph examiner and you may hurt your case by attempting to defraud the justice system. Additionally, even when an accused is absolutely positive that he or she is innocent of a crime, oftentimes Experienced Criminal Defense Attorneys counsel against taking a polygraph. There are numerous reasons why an innocent person may fail a polygraph test.

Never submit to a police administered, or any, polygraph test before consulting with an Experienced Criminal Defense Attorney. While the actual test results are not admissible in court, your answers to questions are. Even if you "pass" the test, there is always a risk of your answers being taken out of context and used against you. If you are facing criminal charges and have been asked to take a polygraph, immediately contact Massachusetts Criminal Defense Attorney Paul R. Moraski at (978) 744-1200.

Paul R. Moraski, Esq.
The Law Office of Paul R. Moraski
221 Essex Street, Suite 51
Salem, Massachusetts 01970
Tel: 978.744.1200
Fax: 978.825.1370
Email: attorneymoraski@yahoo.comWebsites: