Today we begin the study of Makkot, (lit. lashes). It is a short tractate, (only 24 pages!) but it packs a punch. It discusses the punishment of lashes, of course, but it also includes a discussion of false witnesses and the biblical Cities of Refuge. The masechet opens with the punishment for those who lie about their testimony. They could be lying about the ability of a person to be counted as a member of the priestly class, or about whether one person murdered another. At the root of the opening chapter is the claim that, assuming it is not deliberately invented, eyewitness testimony is reliable. But here is the problem - it isn’t.
From here.
Over the last few decades we have learned how very unreliable eyewitnesses may be. As an indication of the seriousness of this problem, the American National Academy of Sciences convened a meeting in 2013 (back when America took science a bit more seriously than it does now,) to review the science. Their committee included experts from fields of cognitive and neural science, statistics, law enforcement, and the courts, and was co-chaired by Judge Jed Rakoff of the US District Court for the Southern District of New York, and Thomas Albright, Professor of Vision Research at the Salk Institute. We will be relying a lot on their findings, which you can read in full here.
Can two eyewitness also get it wrong?
While one eyewitness might get it wrong, surely two eyewitnesses testifying would mean that their testimony cannot be mistaken. Indeed, the Torah is very clear - in civil disputes as well as in all capital cases, at least two witnesses are needed for a conviction.
דברים 19:15
לֹֽא־יָקוּם֩ עֵ֨ד אֶחָ֜ד בְּאִ֗ישׁ לְכל־עָון֙ וּלְכל־חַטָּ֔את בְּכל־חֵ֖טְא אֲשֶׁ֣ר יֶֽחֱטָ֑א עַל־פִּ֣י ׀ שְׁנֵ֣י עֵדִ֗ים א֛וֹ עַל־פִּ֥י שְׁלֹשָֽׁה־עֵדִ֖ים יָק֥וּם דָּבָֽר׃
A single witness may not validate against an [accused] party any guilt or blame for any offense that may be committed; a case can be valid only on the testimony of two witnesses or more.
But two eyewitnesses can be very mistaken about what they saw. Consider the 2004 case of a 16-year old high school student, known as Erika, who was abducted by a man while walking to a friend’s house. Her assailant threw her into the roadside bushes and sexually assaulted her. Erika punched her assailant repeatedly in the face with her CD player, eventually broke free, and was rescued by a passerby. There were two significant witnesses to this crime: Erika, of course, and a man by the name of Angel Rivera, who happened to be driving by. Both witnesses described the assailant as white, brown hair, mid-20s, about 5 feet, 10 inches, medium build, and wearing a goatee.
Eventually, the San Diego County Sheriff detained a 25-year-old construction worker named Uriah Courtney, and he was picked from a lineup. The prosecution’s case rested solely on this testimony; there was not a shred of physical evidence came to light. In 2006, Uriah Courtney was found guilty by a San Diego jury and sentenced to life in prison.
When Courtney was permitted to address the court, he maintained that he could not express remorse for a crime he did not commit. To his accuser, he simply said this:
I am sorry, Erika, but you were mistaken in your identification of me as your attacker. It was a simple mistake, but one that has had monumental repercussions because now neither one of us are receiving the justice we deserve.”
A re-analysis of the DNA evidence found on the victim’s clothing demonstrated that it was not possible to have come from Courtney. Instead, it matched a former convict living not far from the crime scene. Based on this, Courtney’s conviction was vacated and he was released in 2013. He had been in prison for eight years.
If having two eyewitnesses is no guarantee of justice, perhaps having more is. How about five? Well, it will by now come as no surprise that having more eyewitnesses does not prevent the conviction of innocents.
The First Death Row Exoneration
In 1984, Kirk Bloodsworth, a former Marine, was convicted and sentenced to death for the rape and murder of a nine-year-old girl in Baltimore. Although there was no physical or circumstantial evidence to link him to the crime, five (!) eyewitnesses placed him with the victim or at the scene of the crime. Bloodsworth was, in fact, entirely innocent, as DNA evidence later established. The five eyewitnesses had each identified the wrong culprit, and after nine years on death row, Bloodsworth was set free. Several years later, the actual murderer confessed, and Bloodsworth was formally exonerated. He was the first person to be sentenced to death and then subsequently exonerated. I guess he was one of the lucky ones; all the other innocents were executed.
More than 2,000 wrongful convictions
A 2018 review estimated that since 1989, more than 2,000 wrongly convicted persons have been exonerated in state and federal courts. Commonly contributing to and sometimes clearly causing these wrongful convictions are inaccurate eyewitness identifications. Using DNA evidence, the Innocence Project has now achieved the legal exoneration of more than 340 people wrongly convicted of very serious crimes, mostly murder and rape. And in about three-quarters of those cases, inaccurate eyewitness identifications were a material part of the evidence leading to the convictions.
The Rabbinic Execution of an Innocent Man
The Rabbis of the Mishnah actually acknowledged that sometimes an innocent person might be executed for an offense of which he is innocent. Here is the story we read a few months ago as we studied Sanhedrin. The Mishnah teaches that prior to his execution, the condemned should confess. Then comes this:
סנהדרין מג, ב
וְאִם אֵינוֹ יוֹדֵעַ לְהִתְוַודּוֹת, אוֹמְרִים לוֹ, אֱמוֹר: ״תְּהֵא מִיתָתִי כַּפָּרָה עַל כל עֲוֹנוֹתַי״. רַבִּי יְהוּדָה אוֹמֵר: אִם הָיָה יוֹדֵעַ שֶׁהוּא מְזוּמָּם, אוֹמֵר: ״תְּהֵא מִיתָתִי כַּפָּרָה עַל כל עֲוֹנוֹתַי חוּץ מֵעָוֹן זֶה״
And if the condemned man does not know how to confess, either from ignorance or out of confusion, they say to him: Say simply: Let my death be an atonement for all my sins. Rabbi Yehuda says: If the condemned man knows that he was convicted by the testimony of conspiring witnesses, but in fact he is innocent, he says: Let my death be an atonement for all my sins except for this sin.
According to Rabbi Yehudah, it is possible for witnesses to conspire and give false testimony, which is of course, not the same as truthfully giving flawed testimony. As a result, an innocent person would be executed. Apparently, this actually happened:
סנהדרין מד, ב
תָּנוּ רַבָּנַן: מַעֲשֶׂה בְּאָדָם אֶחָד שֶׁיָּצָא לֵיהָרֵג. אָמַר: אִם יֵשׁ בִּי עָוֹן זֶה, לֹא תְּהֵא מִיתָתִי כַּפָּרָה לְכל עֲוֹנוֹתַי. וְאִם אֵין בִּי עָוֹן זֶה, תְּהֵא מִיתָתִי כַּפָּרָה לְכל עֲוֹנוֹתַי, וּבֵית דִּין וְכל יִשְׂרָאֵל מְנוּקִּין, וְהָעֵדִים לֹא תְּהֵא לָהֶם מְחִילָה לְעוֹלָם. וּכְשֶׁשָּׁמְעוּ חֲכָמִים בַּדָּבָר, אָמְרוּ: לְהַחְזִירוֹ אִי אֶפְשָׁר, שֶׁכְּבָר נִגְזְרָה גְּזֵירָה. אֶלָּא יֵהָרֵג, וִיהֵא קוֹלָר תָּלוּי בְּצַוַּאר עֵדִים.
The Sages taught: An incident occurred involving a person who was being taken out to be executed after having been convicted by the court. He said: If I committed this sin for which I am being executed, let my death not be an atonement for all my sins; but if I did not commit this sin for which I am being put to death, let my death be an atonement for all my sins. And the court that convicted me and all the people of Israel are clear of responsibility, but the witnesses who testified falsely against me will never be forgiven. And when the Sages heard this, they said: It is impossible to bring him back to court and reconsider the verdict, as the decree has already been decreed. Rather, he shall be executed, and the chain of responsibility for his wrongful execution hangs around the necks of the witnesses.
Why Can Eyewitnesses be Mistaken about what they saw?
The 2013 National Academy of Sciences concluded that there were numerous variables that affect both the reliability and the accuracy of eyewitness identifications. These include the physical distance between the witness and the perpetrator, as well as the presence of weapons, stress and fear, own-race bias, exposure, and retention interval.
Weapons
“The presence of a weapon at the scene of a crime captures the visual attention of the witness and impedes the ability of the witness to attend to other important features of the visual scene, such as the face of the perpetrator. The ensuing lack of memory of these other key features may impair recognition of a perpetrator in a subsequent lineup.”
Stress and Fear
Given the known effects of fear and stress on vision and memory, it is not surprising that high levels of stress or fear can affect eyewitness identification. Under conditions of high stress, a witness’ ability to identify key characteristics of an individual’s face like hair length, hair and eye color, shape of face, or presence of facial hair may be significantly impaired.
Own-Race Bias
Own-race bias is the phenomenon in which faces of people of races different from that of the eyewitness are harder to discriminate. This means that it is harder to accurately identify a person who is not of your own race.
Own-race bias occurs in both visual discrimination and memory tasks, in laboratory and field studies, and across a range of races, ethnicities, and ages. One meta-analysis of own-race bias found an interaction between it and the duration of viewing exposure: reducing the amount of time allowed for viewing of each face significantly increased the magnitude of the bias, largely manifested as an increase in the proportion of false alarm responses to other-race faces. Own-race bias also interacts with the memory retention interval; cross-race errors of identification are greater when there were longer periods of time between the initial exposure and the memory retrieval.
Exposure Duration
The longer the exposure, the better the recall. That seems obvious, but just to be sure we tested it in the lab. In twenty-five separate studies. And sure enough, it is true. Here is the summary of one meta-analysis:
…our meta-analytic results likewise confirm that there is a statistically reliable association between facial identification accuracy and two variables related to initial memory strength, exposure time and encoding operations. Specifically, relatively long exposure durations to a target face(s) produce greater accuracy than relatively short exposure durations, and relatively deep encoding operations (i.e. social judgments) produce greater accuracy than relatively shallow encoding operations (i.e. feature judgments).
Retention Interval
Finally, we come to the retention interval, which is the amount of time that passes from the initial observation and encoding of a memory to a future time when the initial observation must be recalled from memory. And (obviously) the retention interval affects identification accuracy. However, the National Academy report also noted that it was “difficult to specify the precise relationship between retention interval and the accuracy of eyewitness identification testimony and to estimate when a lengthy retention interval will significantly impair the accuracy of identification. Although, in general, it appears that longer retention intervals are associated with poorer eyewitness identification performance, the strength of this association appears to vary greatly across the circumstances of the initial encounter, identification procedures, and research methodologies.”
So how can we do better?
In its report, the Committee that examined the reliability of eyewitness testimony concluded that “the best guidance for legal regulation of eyewitness identification evidence comes not from constitutional rulings, but from the careful use and understanding of scientific evidence to guide fact-finders and decision-makers.” In other words, let the science guide the law.
Eyewitnesses to a crime are important, but they are fallible. Even if there are many of them and they claim to have seen the same thing. The Torah, of course, was given to a society long before we knew what we now do. At that time, and for the millennia that followed, eyewitness testimony was the best we had, and it was perfectly reasonable to rely on it. It still is, but you need more. Just because you saw something, don’t make it so.
Let’s close with a perfect example of what we have been talking about. It comes from a kind Talmudology reader, who has allowed me to share it.
“About 18 years ago, I called the police on someone trying to break in the house next door to mine. Because of the unusual angle I was viewing him from, I was looking at his sneakers most of the time (though I occasionally saw his whole body). I described the guy’s sneakers to the police. The guy got away before the cops came. Sort of. I was telling a friend who also spotted him — later on in the day, cutting through people’s properties. She described the sneakers as a different color. Speaking to another witness later in the day, I got a different description of the sneakers. Later on in the day, I got a call from law enforcement. They had some followup questions for me. They had caught the guy, right after he tried to get a former IDF soldier — a woman — to give him a lift. She bravely refused. So I ask the law enforcement guy, “out of curiosity, what color was the guy’s sneakers?” He responded with yet another color!
”
