It should surprise no one that the lone vote casting doubt on the reliability of eyewitness testimony came from the only United States Supreme Court justice with experience actually trying cases. Most justices think facts are something you read about in a textbook, or in a legal brief. Only Sonia Sotomayor has actually looked a jury in the eye and asked them for something. She alone wants the nation’s trial courts to take special pains to make sure eyewitness testimony is more than mere finger pointing.
The 8-1 vote in Perry v. New Hampshire rejected the claim that there is sometimes something suspect about eyewitness testimony, The eight justices voting in the majority have no trial experience. They are like surgeons who have read all the right books, but have never dared touch a body. Just why the highest court in the land is virtually devoid of lawyers who have done more than read about what goes on in a courtroom is troubling. A court governed by principled theoreticians is a court out of touch with reality. “The life of the law has not been logic,” Oliver Wendell Holmes, Jr., warned more than a century ago, “it has been experience.”
The lack of experience shows in cases like Mr. Perry’s.
Mr. Perry was identified at a so-called show-up identification. Police suspected he had stolen something. They brought a woman who claimed to see the theft to the scene. There stood Mr. Perry, the lone black man in the crowd. He was standing next to a white police officer. The woman identified him. Is anyone surprised by this?
This identification was reliable enough for the Supreme Court. It chose to ignore the mounting evidence that eyewitness testimony is often flawed. Of the first 250 exonerations obtained by the Innocence Project through the use of DNA evidence, 76 of the defendants had been identified by eyewitnesses. Clearly, there is a problem with eyewitness testimony. Only the naive and willfully blind accept eyewitness testimony at face value.
Don’t gasp, roll your eyes, and exclaim that I am on just another rant. Even the NFL and college football knows there is a problem. In football’s prime-time bread and circus, the use of instant replays to review the decisions of referees, linesmen and umpires who are paid to be vigilant is common. In the games we play on the gridiron we want to be sure that there are special procedures in place to make sure the right team wins. Do we care more about football than the integrity of the criminal justice system?
I recall in law school a contracts professor brushing off a question by observing that it posed “a mere matter of fact.” The man was Harvard trained, a Brahmin of sorts. He regarded facts as things that merely appeared in the reported appellate court decisions he read, digested and regurgitated. The grueling work of determining what the facts are in a given case was beneath him. I admired the airy confidence of the man, and thought him profound; today I recognize him as little more than a moral and intellectual cripple, hobbling along trying to make sense of a world he has only read about. You don’t buy facts at the corner store.
Any trial lawyer will tell you that a courtroom is a strange and mysterious place. Competing narratives seek to frame and reframe an issue that a judge or jury is to determine. The fact finders are never witnesses to what is testified about in a courtroom. These strangers rely on witnesses to tell them what to believe. I fear that from time to time the better narrative wins, whether that story corresponds to what actually occurred. Courtrooms are dangerous places. Innocent people are convicted.
What sense does it make to put a judge on the bench if the judge has never tried a case? I admire Sotomayor because she has at least looked a jury in the eye and asked for something. She knows the look and feel of our social fact factories. She knows how easily juries can be swayed and even misled. Sotomayor spent only a few years in a courtroom, and that as a prosecutor. There is not a single criminal defense lawyer on the Supreme Court. I do not understand how a president can behold a court without a man or woman who has dedicated a lifetime to defending people as complete.
We kid ourselves if we think the justice is done in every case. Sometimes the result of a trial is little more than a parlor trick. It is not asking too much to assure that evidence is tested before reliability before it is shown to a jury. Only a justice lacking real world experience in a courtroom would conclude otherwise.
Reprinted courtesy of the Connecticut Law Tribune.