The Law and Science of Eyewitness Identification


I summarized some key points for investigators in a piece for
PURSUIT MAGAZINE on the new scientific studies being done in the field of eyewitness identification and memory.




Below are links to case law, scientific studies and law enforcement training guides and videos. Most of this collection was put together by the organizers of the National Symposium on Eyewitness Identification Reform held at Yale Law School, which I was fortunate to attend in July 2016.

- John Nardizzi


Court Cases

Law Enforcement Training Curriculum

Law Enforcement Videos

Model Legislation, Policies and Practices

Related Studies and Articles

Is reading email from another person's account a crime?

A Michigan DA is charging a man, Leon Walker, with unlawfully reading his then-wife's email, which showed she was having an affair with a man who once had been arrested for beating her in front of her son. Walker then gave the emails to her first husband, the child's father, to protect the boy. Most defense lawyers are commenting that they have never seen anyone charged before in these circumstances. Civil penalties may be justified, but as Walker's lawyer remarked; "This is a hacking statute, the kind of statute they use if you try to break into a government system or private business for some nefarious purpose. It's to protect against identity fraud, to keep somebody from taking somebody's intellectual property or trade secrets. I have to ask: 'Don't the prosecutors have more important things to do with their time?'

Read More...

1982 Lowell arson conviction may be reconsidered

The Boston Globe did a piece on flaws in an arson investigation that led to the conviction of N&A INC client Victor Rosario. An appeal is being filed.

Supreme Court Affirms: Client Michael O'Laughlin Is A Free Man

Yesterday, the U.S. Supreme Court denied a petition for a writ of certoriari filed by the Commonwealth, thus letting stand the order by the First Circuit Court of Appeals freeing client Michael O'Laughlin and affirming his innocence.

Thus ends Michael's nine year odyssey of imprisonment.

Change Blindness - Why Witnesses Get it Wrong

Fascinating video regarding people's inability to notice differences in their surroundings. In this experiment, 75% of the people fail to notice that a different person is now in front of them. For those who study wrongful convictions, a growing field of research shows that eyewitness identification is deeply flawed.

Boston Bar Assoc. Task Force- 3 recommendations for avoiding wrongful convictions

A BBA task force noted that for every defendant wrongly convicted, a criminal goes free. The report makes three key recommendations:

(1) Enactment of a Massachusetts statute to guarantee post conviction access to DNA testing and to require preservation of biologic forensic evidence. (Massachusetts is one of only 4 states that does not have such a statute).

(2) Expanding the membership and function of the Forensic Science Advisory Board to include scientists and lawyers who are not prosecutors. (The report cites a 2008 study by the National Academy of Sciences raising serious questions about the scientific foundation of significant portions of forensic evidence admitted in courts.)

(3) Videotaping confessions. (Based on a 2004 decision of the Supreme Judicial Court most police departments are now recording confessions of suspects. The number of departments who are doing videotapes rather than just audiotapes is still in the minority. Experience of those departments who are videotaping demonstrates that the evidence obtained is more effective because there is absolutely no doubt about what is happening during the witness interview.

Bit surprised that they did not recommend further reform of prosecutor's ability to buy testimony in the form of not prosecuting snitch witnesses for certain crimes--a major problem in numerous cases we have worked on over the years. The notion of sending a check for $70,000 to a witness in exchange for their cooperation seems obviously wrong. But the notion of giving someone 8 years of their life back by not prosecuting them (and what value do you put on a year in prison?--$70,00 per year? more?)--that tactic will continue unabated. Although a jury can weigh evidence of such side deals, the fact is that many inducements given by the government to snitch witnesses are not documented at all.

Your lawyer: trial lawyer or settlement artist?

One of the little truths that come to light as you go along in this business is that some lawyers never learn how to take a case to trial. I once sat in a meeting in California with a group of lawyers on joint defense case. Several big names; several big egos (the lawyers, not me). As we began, one lawyer, whose website bragged about extensive experience litigating major civil and white collar criminal cases, looked uncomfortable as the discussion proceeded --which witnesses were being contacted, what impeachment material was developing, etc. It became clear that this lawyer had done little pretrial investigation. He rarely did--the concept of a PI systematically interviewing witnesses was new to him. Rather stunning. The guy was all hat, no cattle.

Clients don't just want an attorney with a law degree; they deserve a intelligent street fighter, a trial lawyer who aggressively develops the facts of a case. Ask your lawyer what he does before trial. Those tasks have more to do with winning than his courtroom maneuvering.

Yeager case defines limits on white collar prosecutions

Interesting discussion of the USA v. Yeager case which defines the limits on the governement trying to repackage facts and charge defendants under different statutes after a jury already decided the conduct was not illegal.

Court of Appeals Reverses Conviction of client Michael O'Laughlin

In a rare decision upholding a lower court decision overturning a jury verdict, the 1st Circuit Court of Appeals overturned the Massachusetts Supreme Judicial Court [SJC] in the murder case of client Michael O'Laughlin. Citing the "the extremely high bar " in such instances, the court found in part: "Taken together, the circumstantial evidence in this case, even when drawing all reasonable inferences in favor of the prosecution, does not permit any rational jury to conclude that O'Laughlin was the assailant beyond a reasonable doubt." The opinion is notable for its thorough parsing--and ultimate rejection-- of the consciousness of guilt evidence cited by the SJC.

The court summed up the case as follows:

"A Massachusetts Superior Court jury had convicted O'Laughlin of the following counts: (1) burglary and armed assault in a dwelling; (2) armed assault in a dwelling; (3) armed assault with intent to murder; and(4) assault and battery by means of a dangerous weapon. The Superior Court then sentenced O'Laughlin to 35-50 years on Counts One and Two; 19-20 years on Count 3; and 9-10 years on Count 4, ruling that the sentences were to be served concurrently.

The intermediate Massachusetts Appeals Court reversed the judgments holding that there was insufficient evidence to support the verdicts. Commonwealth v. O'Laughlin, 830 N.E.2d 222 (Mass. App. Ct. 2005) (hereinafter "O'Laughlin I"). The Massachusetts Supreme Judicial Court ("SJC") reinstated the judgment reasoning that there was sufficient evidence to support the verdicts. Commonwealth v. O'Laughlin, 843 N.E.2d 617 (Mass. 2006) (hereinafter "O'Laughlin II").

O'Laughlin filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts on grounds that (1) the SJC's (which had ruled that was objectively unreasonable because there was insufficient evidence to support a guilty verdict and (2) that the SJC violated his constitutional right to present a defense. The district court denied O'Laughlin's petition for habeas relief.

After careful consideration, we reverse the judgment of the district court and order the district court to grant the petition. "

A full factual recounting of the case is found here. Michael remains in prison pending a state appeal for an en banc hearing by a full panel of 1st Circuit judges.

Investigator arrested without cause by Harvard police

On Saturday afternoon, May 30, 2009, Harvard University police arrested without cause one of our investigators, Joseph Cadillic, who was assisting the Simmons Agency and MIT Crime Club with research on the murder of Justin Cosby.

After identifying himself to a student, providing a business card, and his purpose for visiting, Mr. Cadillic requested permission to view the area of the shooting. Harvard police, instead of making a reasonable inquiry into how he came on campus, then arrested Mr. Cadillic and his wife Elissa (who was present but is not employed as an investigator).

Why does a university whose motto, Veritas, means truth, have a long history of dubious interpretations of law when it comes to witness access, due process, and free speech? This is especially true when events highlight certain unpleasant truths about drug use and violent crime at Harvard.

We look forward to all criminal charges against Mr. Cadillic being dismissed. We continue to seek information about Justin Cosby's murder on campus and encourage any information to be sent to us.

Senator Stevens' conviction overturned

Boston Globe reports a federal judge tossed out the conviction of former US senator Ted Stevens after the Justice Department admitted its prosecutors mishandled evidence in the corruption case. Two prosecutors did not turn over notes from an interview in April 2008 with the case's key witness--notes that contained exculpatory evidence. Veteran defense investigators know this is a not uncommon phenomenon: several agents
from different agencies sit in on one interview, and their notes differ vastly from the "official report" that is eventually turned over to the defense. Always good practice to identify everyone at the meeting, and review notes from everyone present.

Prosecutors who handled the trial have been removed from the case and their conduct is under investigation.

Death of weapons frisk greatly exaggerated after MA high court ruling

News reports are exaggerating the impact of a new Supreme Judicial Court ruling in Massachusetts on a police officer's right to stop and frisk suspects for weapons. This right was established in 1968 in the Supreme Court case Terry v. Ohio. In Commonwealth v. Paul Gomes, the SJC held that conducting a pat frisk of a suspect solely on a general concern that he was in a high crime area violates the Fourth Amendment prohibition on unreasonable searches and seizures. Key line in the SJC case : " Officer Walsh gave no testimony that the police observed anything suggesting that the defendant had a weapon." Coupled with no weapons priors for Gomes, the search was found to be unreasonable.

No new law here. Just a reminder that, if no requirement existed for specific suspicions about a suspect, residents in high-crime areas could be pat frisked while simply walking in their neighborhood.