Cornell University Law School Social Science and Law

Eyewitness Testimony and the Flowers Case

Compiled by Ann Njarara, Bree Peilen, Daniel Neuman, Emory Cook, Linda Lin, and Perrin Lowrey

Introduction
     Before crime shows like CSI and the scientific advancements which ushered in modern forensics such as fingerprinting and DNA, eyewitnesses were often the only form of proof of a guilty person or act. Using eyewitnesses to identify a suspect as the perpetrator to the crime is a form of direct testimonial evidence that is used for forensic purposes. It is used to establish facts in a criminal investigation or prosecution. Often, it can be the strongest evidence in a criminal case even though it can also be the most unreliable. Historically, eyewitness testimony has been in use not only in the United States and our penal system but all around the world. Despite the frequency of use, we have been confronted as a country with many incredible failures of eyewitness testimony such as misidentifications that led to convictions and sentences of people who were later discovered innocent.¹ Science has played no small role: post-conviction DNA profiling made possible by the development of the polymerase chain reaction, which enables amplification of crime-scene DNA to quantities sufficient for forensic analysis have meant that DNA identification is becoming increasingly used even in cases where it was previously not viable: those where we have smaller samples.² As of now, almost 350 people, many serving long prison sentences, have been exonerated because their own DNA was discovered to be incompatible with evidence long ago collected from the crime scene. Many more sit in prisons who have not had the opportunity to have their cases re-investigated or samples re-tested. In about 70% of these cases, misidentification by one or more eyewitnesses contributed significantly as evidence for conviction.³

Eyewitness Testimony: General Social Science Findings

     Throughout history, eyewitness testimony was held up as the golden nugget of evidence. The testimony of an eyewitness could make up for many shortcomings in a case, such as the lack of any actual physical evidence. Recently though, with the rise of social science, eyewitness testimony has taken a tumble from its lofty standing. More and more research has come out in the last few decades indicating that there are many dangers to relying on eyewitnesses, from the uncertainty of relying on a person’s memory all the way to how they are questioned at the police station. While 30+ years of research is too much to summarize in a few paragraphs, we will outline the general problems with eyewitness testimony as well as some of them more major research that has been performed on the subject.
     There are a few ways in which eyewitness testimony can be inaccurate. The first is in the classic “My Cousin Vinny” situation, where eyewitnesses simply believe they see something, despite not actually being capable of truly witnessing the event accurately. Another way is through the misinformation effect, where something occurs between the event and the reporting of the event to muddy or confuse the witness. In one of the earliest studies of this misinformation effect run by Elizabeth Loftus, subjects were shown a slideshow of a red car passing a stop sign and hitting a pedestrian. They were then asked a leading question about how fast the car was going when it passed the “yield” sign. Later two slideshows were shown, one with a stop sign and the other with a yield sign and they asked the subjects which was the one they had previously seen. The subjects who had been asked the leading question were much more likely to choose the slideshow with the yield sign, since their memories had been tampered by the question asked earlier.⁴ Many studies have since corroborated the findings of Loftus, such as another experiment, where the same effect was reproduced using television screens, and then seeing the effects between the different participants.⁵ Studies like these have demonstrated the fickle nature of memory, and how details can be changed without the witness really even recognizing it.
     Other major dangers that have plagued eyewitness reports are factors such as high-stress situations, how witnesses are interviewed by police, and whether the victim is the same or different race as the witness.⁶ In 2001, Meissner and Brigham performed a “broad review” of research on “cross-race” identification, analyzing data from 39 research articles and 5,000 subjects/witnesses. They found that the odds of a false identification were 1.56 times greater in cases where the race was different than the witness, thus highlighting how bias can affect how somebody remembers an event.⁷ With regard to stress, studies such as those run by Clifford & Hollin have looked at how memory is affected under a “high-stress” situation. They found that when showing violent and non-violent crimes on videotape to subjects and then prompting them with questions later, the witnesses had more and more difficulty remembering certain details as the violence in the video went up.⁸

Here is a link to a general overview on eyewitness testimony from the National Science Foundation.

Eyewitness Testimony: Legal History

     Over time, social science experts were soon quick to point out the errors that were likely to occur leading to an erroneous conviction based on faulty eyewitness testimonies.⁹ In the wake of the Daubert trilogy cases where judges were urged to be active in their gatekeeping role, the courts began developing stringent threshold requirements that had to be met for admission of an eyewitness testimony. This section will focus on the court’s current treatment of eyewitness testimony.
     The modern test for the admissibility of eyewitness testimony at a criminal trial under the Due Process Clause was established by the U.S. Supreme Court in Manson v. Brathwaite in 1977. In Manson, the Supreme Court highlighted reliability as the “linchpin in determining the admissibility of identification testimony” and adopted a totality of the circumstances test to assess reliability in this context.¹⁰
     The Manson admissibility test consists of two steps. First, the judge must determine whether the procedure used by law enforcement officials in obtaining the proffered eyewitness identification (e.g., photographic array or lineup) was unnecessarily suggestive.¹¹ The judge must then weigh this determination against the following five factors to assess the reliability of the identification:

1. the opportunity of the witness to view the criminal at the time of the crime;
2. the witness’s degree of attention;
3. the accuracy of the witness’s prior description of the criminal;
4. the level of certainty demonstrated at the identification procedure; and
5. the time between the crime and the identification procedure.¹²

     In practice, therefore, the test is flexible. Even where a judge determines that a given identification procedure is unnecessarily suggestive, the judge may nonetheless admit the results of the procedure if they are deemed reliable based on these factors.¹³ In his dissenting opinion, Justice Marshall criticized the Court for ignoring studies showing that unnecessarily suggestive eyewitness identifications had led to erroneous convictions even where such identifications had been deemed reliable.¹⁴
     Most recently, in 2012, the Supreme Court clarified that the Due Process Clause does not require judges to assess the reliability of eyewitness identifications made under suggestive circumstances when the circumstances are not created by law enforcement officials.¹⁵ In other words, in cases where the proffered identification does not result from suggestive police procedure, the judge need not consider whether the identification also passes the second step of the Manson test.
     In Perry v. New Hampshire, the Supreme Court barred the defendant from challenging the eyewitness testimony proffered by the state, even though the circumstances surrounding the eyewitness’s identification of the defendant were decidedly suggestive. Specifically, the eyewitness had identified the defendant from her window, as the defendant was standing in the dark next to a police officer; however, the eyewitness had pointed to the defendant “spontaneously,” without the police asking her to do so.¹⁶ The Court ruled that, because the police had not induced the identification under suggestive circumstances, the trial judge had not erred in admitting the eyewitness testimony without assessing its reliability under the second step of the Manson test.¹⁷
     In assessing the reliability of eyewitness identification, federal and state courts are still divided on (1) whether expert testimony on eyewitness identification should be allowed under either Daubert or Frye and (2) the proper exercise of trial court discretion when deciding whether to admit such expert testimony.¹⁸
     Some courts have held it as an abuse of discretion for a trial judge to bar the defense from admitting expert testimony on eyewitness identification. These courts generally accept detailed descriptions of relevant scientific research findings to either attack or support eyewitness testimony.¹⁹ Other courts, meanwhile, leave the jury to determine the credibility of eyewitness testimony and insist that findings from scientific research in this area cannot help the jury to do so.²⁰
     In recent years, more and more jurisdictions have come to accept expert testimony on the reliability of eyewitness identification. As of 2014, 44 states and all federal circuits, with the possible exception of the 11th Circuit, allow such expert testimony at the discretion of the trial judge.²¹

Eyewitness Testimony: Application in Court

      The Manson v. Brathwaite test under the Due Process Clause of the U.S. Constitution for assessing eyewitness identification evidence was established in 1977, before much applied research on eyewitness identification had been conducted. In 1932, Yale University law professor Edwin M. Borchard documented nearly seventy cases of miscarriage of justice caused by eyewitness errors in his book, Convicting the Innocent.²²
     Years later, in 1967, the U.S. Supreme Court highlighted the danger of erroneous eyewitness identification in United States v. Wade, stating, “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.”²³ The Federal Bureau of Investigation (FBI) estimates that U.S. law enforcement made 12,196,959 arrests in 2012. The FBI estimates that 521,196 of these arrests were for violent crimes.²⁴ Accurate data on the number of crimes observed by eyewitnesses are not available. One estimate based on a 1989 survey of prosecutors suggests that at least 80,000 eyewitnesses make identifications of suspects in criminal investigations each year.²⁵
     Recently, post-conviction DNA exonerations of innocent persons have dramatically highlighted the problems with eyewitness identifications. In the United States, more than 300 exonerations have resulted from postconviction DNA testing since 1989.²⁶ According to the Innocence Project, at least one mistaken eyewitness identification was present in almost three-quarters of DNA exonerations.²⁷ In many of these cases, eyewitness identification played a significant evidentiary role, and almost without exception, the eyewitnesses who testified expressed complete confidence that they had chosen the perpetrator. Many eyewitnesses testified with high confidence despite earlier expressions of uncertainty.²⁸

Eyewitness Testimony in the Flowers Case

     In Winona, Mississippi on July 16, 1996, four people were shot and killed at Tardy furniture store. The prosecutor, Doug Evans, tried Curtis Flowers, a former employee at Tardy, six times for the crime.²⁹ The Flowers case relied on three key points of evidence: (1) the eyewitness testimony of people who placed Curtis Flowers on the route from his home, to steal a gun, back to his home and then to Tardy to commit the murders and then home again (2) ballistics and (3) jailhouse confessions.³⁰
     According to the prosecution on the day of the murder, at around 7 am, Flowers walked from his home on the West side of town all the way to a sewing factory parking lot on the East side of town, crossing Highway 51, one of the town’s largest streets, while doing so. There, the prosecution claims that Flowers stole Doyle Simpson’s gun from the glove compartment of Doyle’s unlocked car and then walked back to his home on the West side of town. The prosecution then claims that Flowers then walked again from his house to Tardy Furniture to commit the murder, passing an auto body shop and a drycleaner on the way, as well as Highway 51. There, the prosecution claims that Flowers killed the people inside Tardy’s, stole money from the stole, and then went back home, stopping to buy chips and beer at a convenience store on Highway 51 on the way.
     Instrumental to the prosecution’s theory was the testimony of at least twelve witnesses, each placing Flowers along a discrete portion of the route he was supposed to have traveled that day. Most of these witnesses personally knew Flowers, and many had grown up with him, lived in his same neighborhood. Taken together, each witnesses testimony fits within the cohesive whole, tied together into a description of the route Flowers had to have taken that morning. But a closer examination of those witnesses’ testimonies reveals a few disconcerting factors: the earliest testimony from a witness came a month after the murders, and other testimony came nine, twelve months later. Most witnesses didn’t come forward of their own accord, and often enough it was the lead investigator for the district attorney’s office, John Johnson, who found the witnesses, and brought them in to testify.

Individual Witness Breakdown:

1. Bojack
   • Out on his porch and saw Flowers walking by that morning. Claimed to have called out to Flowers that day.
   • Gave statement 2 months after
   • Tells other tales: ISIS in Winona, the river flowed backwards one day, the microphone might be tapped into by the Russians
2. Mary Jennet Flemming
   • Saw Flowers walking on the sidewalk on that day heading in the direction
   • Approached by police chief at McDonalds where she worked
   • Contacted 7 months after the murders.
3. Dany Joe Lott
   • In 1977 gave a detailed statement to DA Investigator John Johnson
   • Alcoholic – self-admitted bad memory
   • Picked up and gave statement to John Johnson
4. Another unnamed witness said she would not testify at another trial and in fact did not see Flowers
5. Ed McChristian
   • saw Curtis walking by his house the day of the murders
   • Law enforcement sought him 1 month after murders – John Johnson
   • He said “I wasn’t even really sure [that I saw Flowers on that exact date]” in podcast
   • Claimed John Johnson gave him the statement, he told Johnson at some point he saw Flowers pass by his house that summer and Johnson gave him the date
   • Didn’t feel like he had a choice but to testify – subpoenaed every time
6. Clemy Flemming
   • Talked 9 months after murders
   • Testified after first trial
   • Her Story
     • Roy was driving, Clemy was riding in passenger seat, Clemy asked Roy Harris for a ride to Tardys to pay off a furniture bill right about the time of the murders but Clemy decided not to get out of the car because even though she drove all the way down, because she didn’t feel well (5 mo. Pregnant)
     • Left and got about 1-2 blocks away and saw a man running west, away from downtown, it was her neighbor Flowers
     • Clemy pointed it out to Roy but Roy did not recognize him
     • Couldn’t remember his clothes or shoes, did not describe seeing blood on him
   • Latarsha, Clemy’s cousin, remains convinced that Clemy made up the story because she felt pressured by law enforcement and because she might be able to get money – Latarsha was also taken by the police at 19 to be asked questions and Johnson implied that she might get some of the reward money (30k) if she corroborated
7. Roy Harris
   • Saw a man running across the street 1-2 blocks away that day of the murders, he was alone (not with Clemy) and it was earlier in the morning and when he was with Clemy later, they did not see anybody running
   • Law enforcement came and found Roy and he ended up giving a statement to John Johnson
   • Was shown Flowers’ picture (school picture) – ONLY Flowers – asked if that was the person Roy saw running – Roy said no and John Johnson pushed Roy that it was Flowers and that Clemy was with him when it happened – eventually Roy said he broke down and agreed to the story because he wanted to get out of there (he was afraid of Johnson)
   • Roy recanted after the first trial
   • After that, Johnson recorded Clemy telling her story of seeing Flowers running away from downtown

Eyewitness Testimony: Recommended Practices

     Eyewitness testimony continues to be commonplace in law enforcement and trials. Given the prevalence and impact eyewitness testimony can have within a criminal case, it is important to take steps to make it a more reliable practice. In response to this issue, the National Research Council (NRC) formed a research committee in 2013 chaired by Judge Jed S. Rakoff of the Southern District of New York and cognitive scientist, Thomas Albright of the Salk Institute for Biological Studies.³¹ The group released their findings in 2014 in a report titled Identifying the Culprit: Assessing Eyewitness Identification. Overall, an issue plaguing both courts and law enforcement is the lack of standard procedures to safeguard defendants against unreliable eyewitness testimony. The NRC’s recommendations for law enforcement and judges are below.³²

Recommendations for Law Enforcement:

1. Eyewitness Training
   • The NRC found that police officers and detectives are frequently uninformed of what the best practices concerning gathering eyewitness testimony are. Officers of the law should be instructed by their superiors about the potential inaccuracies and dangers of witness testimony. Standardized instructions regarding best practices should be given, including such tips as the importance of minimizing contact between witnesses at the scene, and how gathering eyewitness testimony as early as possible tends to increase its accuracy.
2. "Double-Blind" Process for Lineups and Photo Arrays
   • A "double-blind" lineup or photo-array is when the person interviewing the potential eyewitness does not which of the persons in a photo array or lineup is the actual suspect. This helps to safeguard against overly eager police officers who might implicitly encourage eyewitnesses (with tone of voice, body language, etc.) to select the person they believe to be a prime suspect.
3. Standard Witness Instructions
   • Instructions given to eyewitnesses should be clear, simple and standardized across jurisdictions. Police officers should avoid leading questioning while interviewing potential eyewitnesses, since eyewitnesses might be eager to say what they think will help the investigation, rather than the unblemished version of their memory.
4. Document Witness Confidence and Videotape Witness Identifications
   • Videotaping allows for review of eyewitness testimony later on in the trial if the reliability of eyewitness testimony is called into question. A judge can review the footage to see if claims of witness tampering are true, or if the witness shows significant doubt while identifying the suspect. Noting a victim’s initial confidence level at the initial identification can be important, so as to track if the witness grows more or less confident with the identification over the course of the trial, which might be an indicator of eyewitness unreliability.

Recommendations for Judges:

1. Prejudicial Inquiries
   • Prior to admitting eyewitness testimony, judges should make inquiries into the reliability of the eyewitness, looking for any indications of unreliability.
2. Informing Juries of All Identifications
   • Judges should strive to make sure the jury is informed of all of the identifications an eyewitness has made prior to the trial. Juries should also be informed as to the manner of the identification, the eyewitness’s confidence and other factors that might influence reliability.
3. Admitting Expert Testimony
   • Judges should continue to allow expert testimony from social scientists on the general reliability of eyewitness testimony, so that jurors are informed about the strengths and weaknesses of eyewitness testimony as a practice. This allows jurors to make more informed decisions while evaluating particular eyewitness testimony.
4. Specialized Jury Instructions
   • Judges should include within jury instructions clear and concise instructions on how to evaluate and make use of eyewitness testimony during their deliberations. Guidance can help jurors who might not know what to make of conflicting testimony. However, there has yet to be research showing what ideal instructions would look like, as each case involving eyewitness testimony varies from each other.

     Ultimately, eyewitness testimony is a powerful tool that has the potential to make or break a case. Juries are particularly prone to being swayed by eyewitness testimony, as evidenced in the Curtis Flowers case. It is important to strive to continue to conduct social science research on the nature of eyewitness and the efficacy of potential reforms like the ones above in order to create effective safeguards against unreliable eyewitness testimony.

Footnote Resources:

¹ Garrett B. Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Harvard Univ Press; Cambridge, MA: 2011.

² Arnaud, Celia Henry. “Thirty Years of DNA Forensics: How DNA Has Revolutionized Criminal Investigations.” CEN RSS, Chemical and Engineering News, 18 Sept. 2017.

³ Eyewitness Misidentification. (2017). Retrieved March, 2019.

⁴ Defffenbacher, et al. A meta-analytic review of the effects of high stress on eyewitness memory, Law and Human Behavior 28.6 (2004), 687-706.

⁵ Brewer & Treyens, Role of Schemata in Memory for Places, Cognitive Psychology 13.2 (1981).

⁶ Wells, Memon, Penrod, Eyewitness Evidence: Improving Its Probative Value, Psychological Science in the Public Interest, (2006).

⁷ Id.

⁸ Clifford & Hollin, Effects Of the Type of Incident and the Number of Perpetrators on Eyewitness Memory, Journal of Applied Psychology 66.3 (1981).

⁹ According to the innocence project, mistaken identification is a leading factor in wrongful convictions. See here: Innocence Project, ‘Eyewitness misidentification’ accessed on March 9, 2019.

¹⁰ Manson v. Brathwaite, 432 U.S. 98, 114 (1977).

¹¹ Id.

¹² Id.

¹³ See Timothy P. O’Toole & Giovanna Shay, Manson v. Brathwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to Eyewitness Identification Procedures, 41 Val. U. L. Rev. 109, 109–10 (2006).

¹⁴ Manson, 432 U.S. 98, 125–26 (Marshall, J., dissenting).

¹⁵ Perry v. New Hampshire, 565 U.S. 228, 248 (2012).

¹⁶ Id. at 235.

¹⁷ See Id. at 248.

¹⁸ National Research Council, Identifying The Culprit: Assessing Eyewitness Identification 38 (2014).

¹⁹ Id.

²⁰ Id.

²¹ Commonwealth v. Walker, 625 Pa. 450, 476–78 (2014).

²² Edwin M. Borchard, Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice (New York: Garden City Publishing Company, Inc., 1932).

²³ United States v. Wade, 388 U.S. 230, 288 (1967).

²⁴ Federal Bureau of Investigation, “Crime in the United States 2012: Persons Arrested,”.

²⁵ A. G. Goldstein, J. E. Chance, and G. R. Schneller, Frequency of Eyewitness Identification in Criminal Cases: A Survey of Prosecutors, 27(1) Bulletin of the Psychonomic Society: 71, 73 (January 1989).

²⁶ The Innocence Project, “DNA Exoneree Case Profiles,”.

²⁷ The Innocence Project, “Eyewitness Identification,”.

²⁸ Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 63–68 (Cambridge, MA: Harvard University Press, 2011).

²⁹ In the Dark, Season 2, Episode 1.

³⁰ In the Dark, Season 2 Episode 2.

³¹ Elizabeth Loftus, Eyewitness Science and the Legal System, 14 Annual Review of Law and Social Science 1–10 (2018).

³² National Research Council, Identifying The Culprit: Assessing Eyewitness Identification 38, 4-8 (2014).