MEMPHIS, Tenn. — Eyewitness testimony is considered the best evidence in any criminal case. It’s the evidence that can send a person to death row or get them off the hook.
However, research shows eyewitness identifications aren’t that reliable, and some officers need to change the way they conduct them.
“I thought I was going to die in prison with 119 years,” Clark McMillan, who was exonerated by DNA, said.
McMillan says he’s proof the way police often pinpoint suspects is flawed. He talks about how a rape victim picked him out of a photo array.
“She said it was so dark out there, she couldn’t see her hand, so any black man would have done,” McMillan said.
He added, “They victimized her too by doing her like that because the young lady didn’t know.”
Wrongly convicted for a rape, he spent 22-and-a-half years in a Tennessee prison before DNA evidence freed him about a decade ago.
“If you got the wrong procedures, some manipulative procedures, you can get someone convicted for life for something they didn’t do,” McMillan said.
DNA evidence has led to the release of more than 300 innocent people nationwide since 1989. In most cases, victims or witnesses picked defendants out of a line-up.
“We’re human beings and we’re prone to make mistakes, so we have to be very careful in relying strictly on our memories,” Dr. K.B. Turner said.
Turner is chair of the criminal justice department at the University of Memphis. He’s also a former police officer who used photo line-ups to solve crimes.
“That’s probably the best evidence is when a person can say, I saw. I was there. I observed this person engaged in this kind of activity,” said Turner.
To show how reliable or unreliable photo line-ups are, WREG asked the University of Memphis Criminal Justice Club to help.
Most students thought we were doing a story on the organization. They didn’t know they were about to be eyewitnesses to a crime.
They looked shocked as a man came in and grabbed a fellow student’s computer bag. After a few minutes, we explained the crime was staged so we could gauge their eyewitness accounts.
We showed them photos of possible suspects. Students seemed more confident picking out the suspect when they could compare him to others. When the pictures were shown individually, they weren’t so sure. The most concerning thing is when they were shown a line-up without the suspect’s picture in it, they still singled out someone.
“You’re 85 percent sure it’s him?” Turner said as he showed one of the photos to a student who watched the crime.
The student responded, “It’s just that his hair is so dark. I can’t really tell, you know.”
That student pinpointed the wrong person anyway. Turner says officers should remain calm and refrain from suggestive techniques when conducting lineups.
The group that represents public defenders across Tennessee pushed for photo line-up standards. Members said there were certain fallibilities in eyewitness identifications that can be rectified by a proper eyewitness identification procedure. Lawmakers said they would study it over the summer. That was in 2010.
Four years later, there’s no record of them bringing it up since.
Veteran defense attorney Bill Massey says the system still needs reform.
“What can make it more reliable is the videotaping because that opens it up to the jury to see whether or not the identification of the accused is a reliable identification,” Massey said.
McMillan said he believes if jurors had known the victim who picked him out of a line-up was skeptical, he would be one less innocent man sent to die of old age in prison.
McMillan said, “It’s really an unexplainable hurt and pain to be wrongfully accused of something you know you didn’t do, because the people who are perpetuating this are the law enforcement officials who are supposed to be protecting you.”
McMillan says his fight now is just to recover from what he calls the conspiracy that lead to him spending a majority of his adult life in prison.
Police departments in Dallas and Philadelphia have adopted ‘blind line-up’ procedures where an officer not associated with the case conducts the lineup to help ensure fairness.
WREG asked Memphis police about its current procedures. Investigators working on the case do conduct the line-ups; however, MPD says they tell the viewer the person may or may not be included in the lineup provided.