1. Federal Criminal Practice Seminar - Fall 2012 Who You Gonna Believe, Me Or Their Lying Eyes? 1

2. The prevalence of Eyewitness Misidentifications Brandon L. Garrett, C ONVICTING T HE I NNOCENT 2

3. Two Different Problems Unreliable eyewitness identifications tainted by suggestive pre-trial procedures. The inherent unreliability of Eyewitness Identifications (whether by strangers of acquaintances) 3

4. Supreme Court Cases United States v. Wade, 388 U.S. 218 (1967) Neil v. Biggers, 409 U.S. 188 (1972) Manson v. Brathwaite, 432 U.S. 98 (1977) Perry v. New Hampshire, 132 S.Ct. 716 (2012) 4

5. Charles Ray Finch Suggestive Lineups 5

6. Witness Description of Perpetrators 6

7. Scene of Crime 7

8. First of Three Lineups 8

9. Second of Three Lineups 9

10. Third of Three Lineups 10

11. Shawn Massey Witness Misidentification 11

12. Victim’s Description of Perpetrator 5’9” black male about 175 pounds with his hair pulled back from his face and 4-5 small braids on the back of his head (the non-biological DNA of the case) red shirt with Hurricane signs on the front blue jean shorts silver revolver 12

13. The Photographic Line-up shown to victim 13

14. The victim: “Looks the most like him, except no braids” “She believes that the person whom she identified in the line- up is the person who robbed her, and that she could be certain if she saw him in person.” Officer T. G. Ledford 14

15. Our Vision of the Perpetrator’s hairstyle based on entire record: CORNROWS 15

16. Another possibility, based solely on the description: “the rat tail: 4 or five straggly strands of hair falling from” the back of the head. Wikipedia 16

17. Prosecutor Assumed Rat Tails Q:On the photo line-ups you have there, is it possible to view the back of any of these suspects’ head, in that photo lineup? Direct Examination of T.G. Ledford, CMPD Q:Can you see the back of any of those subjects’ head in the photo lineups? Direct Examination of J.J. Ojaniit, CMPD 17

18. And a Second Theory at Trial Q:Have you ever known Mr. Massey to wear any kind of artificial braids that you can attach to the back of the head? A: No. And, he wouldn’t be able to because his hair has never been long. You have to have hair long enough in order to attach those braids. Q: But you are familiar with that practice? A: Yes. 18

19. Victim’s Trial Testimony: Cornrows Prosecutor:Let me direct your attention to those braids, Ms. Wood. Did the braids go all through his hair or were they just on the back or just on the sides? Where were the braids? Ms. Wood: They went through. 19

20. An Unanticipated Discovery: Victim’s pre-trial Revelation The morning of trial, when the victim saw Shawn Massey in the courtroom, she told the prosecutor: “I don’t know if that’s him or not.” 20

21. Confirmation: “That’s the way it was done – straight back braided” 21

22. Two Recent State Court Cases State v. Henderson, 27 A. 3 rd 872 (N.J. 2011) New Rules Issued July 19, 2012 State v. Guilbert, 306 Conn. 218 (2012) 22