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Some Comments and Cited Plagiarism on Eyewitness Testimony and Lone Gunman Nutters :)

Glenn Nall

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I get regular newsletters from the Innocence Project. The number of wrongful convictions - and particularly those sentenced to death row - cleared by DNA is astonishing and embarrassing. And I'm not even a Democrat.

A few years ago it became apparent to me, of course, that these people were being convicted, (aside from the disgusting tendency of prosecuting attorneys to save face at all costs), most often singularly because of eyewitness testimony.

For as long as I can remember, when a court case was being discussed, people tended to place more importance on eyewitness testimony than what's referred to as "circumstantial evidence." Which is about as backward as it can be.

Something else that occurred to me when it occurred to me to say something about this (yet again, I'm sure) is that this, um, emphasis on eyewitness testimony is pretty much, aside from the infallibility of the Warren Report, all that Lone Gunman Theorists have to hang their hats on. (How many times has - I won't say his name, but his initials are David Von Pein - thrown Howard Brennan's inscrutable "evidence" in our faces?)

A couple of points, of which I'm sure many of you are already well aware. But which bear repeating into the ground until even one furiously stubborn LNer just maybe wakes up and smells the gunpowder:

  • Eyewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing, playing a role in more than 70% of convictions overturned through DNA testing nationwide. (Innocence Project website, linked above)
  • A number of factors can reduce the accuracy of eyewitness identifications. Here are some of them: Extreme witness stress at the crime scene or during the identification process, and presence of weapons at the crime (because they can intensify stress and distract witnesses). Scientific American
  • In a classic text on the subject, Convicting the Innocent, legal scholar Edwin M. Borchard presents sixty-five cases of "erroneous criminal convictions of innocent people." In twenty-nine of these cases, or approximately 45 percent, mistaken eyewitness identification was responsible for the conviction. Borchard concludes: "These cases illustrate the fact that the emotional balance of the victim or eyewitness is so disturbed by his extraordinary experience that his powers of perception become distorted and his identification is frequently most untrustworthy" (p. 367).
  • Misidentifications are often blamed on the fact that the real criminal bears a close resemblance to the wrongly identified person. But in the twenty-nine cases in which mistaken eyewitness identification was responsible for the wrongful conviction, Borchard reports these facts:"...in eight of these cases the wrongfully accused person and the really guilty criminal bore not the slightest resemblance to each other, whereas in twelve other cases, the resemblance, while fair, was still not at all close. In only two cases can the resemblance be called striking." (p. 367). PBS.org
  • Mistaken witness identification has been identified problem for many years. In June of 2000, an analysis by the Center on Wrongful Convictions found that of 51 exonerations by DNA testing in the United States and Canada, 76.1% had been based in whole or in part on eyewitness identification testimony.

    Another study of 86 exonerated capital cases by the Center on Wrongful Convictions found:
    - Of the 86 cases, eyewitness testimony played a role in 46 (53.5%)
    - In 33 cases (38.4%), eyewitness identification was the only evidence
    - Of the 46 cases that involved eyewitness testimony, 32 cases only had one eyewitness (69.6%), while the remaining 14 cases had multiple eyewitnesses (30.28%)
    - In 19 cases (41.3%), the eyewitnesses were strangers, in 9 cases (19.6%), they were non-accomplice acquaintances. Innocence Project of MN

A question: If you wake up in the morning and there's snow on the ground, and you didn't actually see it snow, how do you know it snowed?

An answer: Circumstantial Evidence.

Here's a handy reference for when the next lawyer wannabe cries, "yeah, but that's just Circumstantial Evidence." And then, "W-a-a-a-a-h!!!"

Also, just some pretty neat stuff to read:

Forms of Criminal Evidence
Criminal evidence is often considered direct or circumstantial. Direct evidence demonstrates proof beyond a reasonable doubt that an individual committed a crime, while circumstantial is based on theory or implies truth to an allegation but does not prove it. Circumstantial and direct evidence may come in many forms including: testimony, documentary, physical, digital, exculpatory, scientific, and genetic.

Eyewitness: An eyewitness is someone who witnesses a crime or wrongdoing by seeing it firsthand. There are problems with this type of evidence. It is the leading cause of wrongful conviction in the United States. According to the Innocence Project, "Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of overturned convictions... " (I know, I just said that.)

Testimony: This type of evidence is obtained from a witness who makes a statement. It may be oral or written and is usually made under oath. Opinions or inferences in testimony are typically limited to expert witnesses. Opposing attorneys can object when a witness is asked a question. This legal maneuver is an attempt to disallow what the objecting side deems an improper question. When objecting, a lawyer needs to give a standard reason why, such as "argumentative," "call for speculation," "hearsay" or "irrelevant'.

Physical: Physical evidence is just that, a piece of evidence presented to prove a fact based on its physical characteristics. It can include part or all of an object. This can range from DNA, to a weapon, a document or piece of furniture that has evidence attached. Contrary to what most people think, fingerprints are most often Circumstantial Evidence. DNA can still be Circumstantial Evidence...

Documentary: Evidence presented at a trial in document form is called documentary evidence. This can include any form of media. Photographs, video and audio all count as documentary evidence. At times, what appears to be documentary evidence is actually physical evidence. For example, if a letter covered in blood is entered as evidence, the blood is the focus of the piece of evidence and hence the paper will be entered into trial as physical evidence.

Demonstrative (Representative): This is a common form of proof, generally having the form of the representation of an object. Examples include: photographs, videos, sound recordings, x-rays, maps, drawings, graphs, charts, simulations, sculptures, and models, among others.

Exculpatory: This tends to clear the guilt of the defendant at trial. Police and prosecutors in the United States must disclose any exculpatory evidence to the defendant or risk a dismissal of the hearing. For example, A person is arrested for a murder because they are found running away from a crime scene however an eyewitness testifies that another person actually committed the murder. The witness’ testimony is exculpatory evidence.

Scientific: Crime scene analysis combines the human intelligence with scientific procedures and methods to interpret what has occurred. While the scientific evidence may speak for itself, it is often supplemented by expert witness testimony. All states have rules on expert testimony and scientific evidence.

Genetic: DNA profiling/testing is used to help identify an individual who is responsible for a crime. State laws on the use of genetic testing in the United States vary. Genetic evidence can be collected without the suspects' knowledge.

Digital: This is evidence stored or provided in digital form to be used at trial. The use of this kind of evidence has increased as the use of technology has increased. E-mails, ATM transaction logs, digital photos, spreadsheets, Internet browser histories, just about anything with an electronic history can be used as digital evidence.

Prima Facie: This is "evidence sufficient to establish a claim or defense until rebutted by contrary evidence" (Blackwell, 2004). In Latin, it literally means "on its first appearance", and such evidence is generally deemed sufficient to prove a particular proposition or fact if it is not refuted by later evidence or argumentation.

A final point. While the Lone Nutters are only able to support their theses with eyewitness testimony and the veracity of the Warren Commission, the CIA and the FBI, Conspiracy Theorists have the luxury of the availability of a veritable ocean of all kinds of other sh*t.

So there.

Edited by Glenn Nall
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Your posting took me back to so many aspects of eye witness testimony from the very beginning in Dealey Plaza and how they varied.

Jean Hill seemed most traumatized of all. Describing a small dog in the lap of Jackie Kennedy?

Brehm, the Newmans, Altgens, etc. All with slight to noticeable differences.

Julia Ann Mercer was not in a highly traumatic situation when she saw what she saw. I would give her testimony more weight because of that fact.

Your listing of the different types evidence is appreciated because it helps one to better understand their values and purposes in seeking the truth in the

most discriminating way possible.

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thanks, Joe. It's good to be able to define things when talking to an LNer. It's even better when they can be given and made to understand common definitions. :) Obviously some of the definitions don't apply to 1963...

what I think is significant are the many, varying testimonies of fairly simple facts, like you've pointed out. To me, there are certain, little details of the many testimonies the truth of which can just plainly be tossed aside as undiscoverable; at least at this point with what documentation has been read. Whether the limo came to a complete stop, or just slowed to, say, 3 MPH... the fact that it slowed at all at the moment a shot was heard by the SS Agent driving the car, says enough... etc, etc...

on the other hand, and not at all having it both ways, there is testimony certain aspects of which can be accepted as probably accurate. If 3 or 4 people out of, (how many, 6 or 8?) 8 say they saw more than one person on the 6th floor immediately preceding the shooting, I'd call that basic assertion pretty reliable. Not minutiae like what they were wearing or even what window they were in, but only that there were more than one person there.

Think about it. In a generic eyewitness situation, if one person says they saw ONE person, and it is a fact, then this does not contradict the possibility that there were more than one person. But if another person states that there were two people, and it is factual, then this absolutely contradicts the possibility that there was only ONE. Right? Given that both testimonies are proven true, only one contradicts the other. In fact.

Who was it, Brehm, Brennan? who saw the man wearing khakis in Oswald's window, from the knees up, holding a rifle first through the window then back from the window? So much credence is placed on his testimony by both the Warren Commission and LNers today, when the fact that a number of people who do not know each other all testified that they saw two or more people is fully ignored.

The fact that their testimonies correlate in such a way, that these people are all, (but for one who was in the County Jail across the street - at the same level as the 6th floor, more or less), reputable and credible, and do not know each other pretty much trumps any suggestion that there was only one person on the 6th floor.

It's a guarantee a jury would see it that way.

Witness testimony is a fickle thing, and in those articles I linked to some are not just describing its fundamental unreliability but are describing ways that the taking and dissemination of it can be done much better. Lineups (see how they handled Helen Markham's "show up"), the ways it's recorded and the way a witness is treated (re: Acquilla Clemmons)...

And speaking of which, the way the testimonies of the JD Tippit shooting vary much more widely, and are treated just as poorly as the Dealey Plaza ones, than LNers are willing to see or admit. Of course these factors apply to that scene, too.

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Speaking of eye witnesses and the accuracy of their testimonies in Dealey Plaza 11,22,1963;

I have never been in Texas let alone Dealey Plaza, but I have read many times that the whole area where everything took place is not as open and far apart as one would imagine.

Such as the distance between an alleged shooter from the sixth floor window and JFK's limo during all the shots.

I have always wondered about the Plaza crowd people who happened to look up at the Texas School Book depository before and right before JFK's limo drove under and saw a person with a gun or persons with guns in the upper windows.

How right or wrong were they?

Arnold Roland and Carolyn Walther seemed pretty clear on what they claim they saw, although Walther insisted the men with rifles she saw were on a floor lower than the sixth one.

I believe both these witnesses saw someone with a gun in those upper windows. The fact that they saw this before JFK rove under the TXSBD is of course disturbing in that at least two untrained citizens with no training, no binoculars and no reason to scan those upper windows saw this...and all that security for JFK didn't even look?

We have a fw buildings where I live that are 6 floors or more in height. They are downtown and overlook a few main streets.

I have stood as close to these buildings 6th floor windows as the distance Rowland and Walther supposedly were from the 6th floor School Book Depository windows and let me tell you, if there was a gun sticking out even a foot from the windows I looked at, you could easily see this and any man or men behind the gun if they are that close to the window.

How much weight should we give these two witnesses eye witness testimony?

The two people seem of very good character and I am sure neither of them had any agenda other than wanting the authorities to know what they saw. They for sure never made any money from their testimonies.

For those reasons and the one factual aspect of their testimonies regarding their closeness to the 6th floor windows, I give them much credence.

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Jean Hill seemed most traumatized of all. Describing a small dog in the lap of Jackie Kennedy?

Jean may have been extraordinarily perceptive. Some researchers (see Lancer discussion when it comes back up) believe Jackie was given a little stuffed lambchop by a young girl at the airport and grasped by her with the bundle of flowers. Maybe the rest of her testimony should be looked at as even more reliable if this is accurate.



Edited by Chris Newton
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Many of the witnesses said the limo stopped 'or almost stopped'. they were fairly consistent with that caveat which I think adds to their credibility. When you see a car moving very slowly from a distance it takes a second to recognize the motion. So at first we might think it is stopped, then after a second we see motion. if it is barely moving we might be unsure of our perception. Did my head shake or maybe background movement made it look like the limo moved. the fact so many witnesses were not sure if it was going very slow or if it stopped is consistent with seeing a slow moving car from a distance.

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