Do you believe what witnesses see?


Guilford case revives issue of reliability of eyewitness testimony

January 21, 2010|By Peter Hermann |

On an early April morning in 2004, an off-duty Baltimore police detective stuck in traffic on York Road watched a gunman pump six bullets into Jeruan Doles. The officer was 15 feet away and watched the gunman run right by his car.

In a report filed a week later, Detective Kenneth Bailey described the shooter only as a "black male."

Six months later, a man arrested on a heroin charge told police he had been inside the Tower Lounge on York Road shortly before the shooting and seen the victim argue with another man, whom he identified by nickname, and then watched the man kill 28-year-old Doles outside the bar.

Both the bar patron and the detective picked the suspect from a photo array, and police arrested and charged Tavon Bomar in the killing. But the witness recanted at trial, and with no other evidence, including a gun, prosecutors relied primarily on the detective's account.

A jury convicted Bomar of second-degree murder and use of a handgun in a crime of violence. A judge sentenced him to 30 years in prison on the murder and 20 years on the gun charge, the sentences to be served consecutively.

Cases built on eyewitness identification are inherently unreliable and problematic, prosecutors say. That's the reason they gave for cutting a deal in 2008 that allowed a man who had held up a Guilford woman at knifepoint to plead guilty but serve only the year he had spent awaiting trial. The victim has said she is convinced she picked the right person from a mug shot and would have testified had prosecutors taken the case to trial.

Police have now charged that man in two more violent attacks in Guilford, including one in which a college student was forced Jan. 12 into the trunk of his car at gunpoint.

Six days ago, the Maryland Court of Appeals added its thoughts on the issue of eyewitness identification as it pertained to the 2004 murder of Jeruan Doles. The convicted murderer had appealed, arguing that the trial judge improperly refused to allow an expert to testify that eyewitness testimony is unreliable.

The defense attorney argued that the "volume of wrongful convictions based on eyewitness misidentification impels the court to encourage the admission of expert testimony" to raise questions about its credibility.

The trial court judge, after listening to the expert outside the presence of the jury, concluded: "Defense counsel through cross-examination will have an opportunity to prove the officer's ability to observe, remember, and recall the event."

The state's highest court, in a unanimous decision, upheld the conviction, ruling that the expert would have confused jurors because he lacked adequate citations to scientific studies and did not delve into issues that "common laypersons" couldn't figure out for themselves.

The appeals court did not shut the door to experts testifying about eyewitnesses. "We appreciate that scientific advances have revealed a novel or greater understanding of the mechanics of memory that may not be intuitive to a layperson," the judges wrote. "Thus it is time to make clear that trial courts should recognize these scientific advances in exercising their discretion whether to admit expert testimony in a particular case."

The judges noted that the U.S. Supreme Court more than 40 years ago called eyewitness identifications problematic. "That piece of judicial wisdom has not abated with time, and we are sensitive to the perils of such testimony," they wrote.

But in the murder case, the court ruled that "some of the factors of eyewitness identification are not beyond the ken of jurors. ... Expert testimony is not the only means to educate juries about the vagaries of eyewitness testimonies and safeguard against wrongful convictions."

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