The Worst Evidence Ever Used In Court

Jennifer Thompson was the perfect witness. She was smart, perceptive, and alert during her attack. She made a conscious effort to note every little detail to help police identify the man who assaulted her. She identified him with 100% confidence in a photo lineup, then during an in-person lineup, and again at the trial. 11 years later, DNA evidence proved that Ronald Cotton, who had been sentenced to life in prison plus 50 years, was entirely innocent. How could she get it so wrong? Why do so many eyewitnesses make mistakes that result in innocent people going to prison for a crime they never committed?

A number of factors conspire to erode the truth. From biological realities of memory and the brain’s propensity to fill in gaps with fiction to procedural errors that unintentionally reinforce a false narrative, it’s hard for witnesses to get it right. All the flaws in eyewitness testimony seem obvious, and most of them are. What’s interesting is how long we’ve known and largely ignored them.

More than a century ago, psychologist Hugo Münsterberg wrote detailed essays about the problems with witnesses, including eviscerating his own memory of being a crime victim. And before that, Hermann Ebbinghaus explained the “forgetting curve” that shows how memory deteriorates and how spaced repetition — of both fact and fiction — can cement what’s in our minds.

Despite generations of knowledge about the fragility of eyewitness identification and testimony, there’s still nothing more powerful and persuasive than a witness pointing a finger at a defendant in court. In the end, forensic science saved Ronald Cotton. But for an immeasurable number of victims of eyewitness error throughout humanity’s pursuit of justice, the result has been imprisonment and death — and the truth is that the problem can’t ever be solved completely.

*** SOURCES & READING ***

“Picking Cotton: Our Memoir of Injustice and Redemption,” by Erin Torneo, Jennifer Thompson-Cannino, and Ronald Cotton: https://www.pickingcottonbook.com/

“What Jennifer Saw,” PBS Frontline (1997): https://www.pbs.org/wgbh//pages/frontline/shows/dna/photos/

“Eyewitness: How Accurate is Visual Memory?” CBS 60 Minutes (2009): https://www.cbsnews.com/news/eyewitness-how-accurate-is-visual-memory/

“Eyewitness Identification Reform,” Innocence Project: https://innocenceproject.org/eyewitness-identification-reform/

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Research and Writing by Matthew Tabor
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