Dorothy Canady said she would never forget the man who shot a retired New York City police officer, but at trial she identified Juror No. 6 as the assailant. Another witness to the crime said the attacker was a black man with braids, yet he picked an Hispanic man with short hair out of a photo lineup.
Though the jury laughed when Canady fingered one of their own, and despite other discrepancies among the accounts of other witnesses to the fatal shooting in a Harlem numbers (illegal gambling) parlor in 1998, Jon-Adrian Velazquez was convicted of second-degree murder and sentenced to 25 years to life in prison. Today, he is fighting to clear his name from a cell in New York’s infamous “Sing Sing.”
“The eyewitness misidentification is the central and critical reason for his wrongful conviction,” said Velazquez’s attorney Robert Gottlieb, formerly an assistant district attorney in Manhattan. “There is no other evidence in this case that could possibly be the basis for a guilty verdict other than the eyewitness identifications that were false. Unfortunately this story is not … so unique.”
While hundreds of convicts have been freed from prison after being exonerated by DNA evidence in recent decades, many others who proclaim their innocence from behind bars don’t have that recourse because no such evidence exists. In many instances, their efforts to gain freedom boil down to their words against those of witnesses to the crimes they allegedly committed.
But in part due to the DNA exonerations, there is increasing concern about the reliability of witness identification in criminal cases. That, in turn, is forcing courts, state legislatures, police and district attorneys across the country to review convictions and make changes in the ways they collect what can be make-or-break testimony from witnesses to a crime.
“We have come a long way since the days when people accepted without question an individual who would take the witness stand, point to the defendant and say, ‘I’ll never forget his face, that’s the person I saw,’” said Gottlieb. “It really was not until the advent of DNA analysis that we have been able to show that eyewitness identifications are one of the weakest forms of evidence.”
The Innocence Project, a nonprofit group dedicated to freeing the wrongfully convicted through DNA testing and to criminal justice system reform, has helped win freedom for nearly 300 prisoners in 35 states — including 17 who spent time on death rows — in its 20 years of existence.
In 75 percent of those cases, the leading factor in their convictions was witness identification; in 36 percent of those cases, convictions were in part based on an identification made by more than one person, said Karen Newirth, eyewitness identification litigation fellow at the Innocence Project.
“Our DNA exonerations represent really just the tip of the iceberg … because they are the only cases where DNA exists in the first place,” she said.
Those cases include rapes, murders, robberies and other crimes. The Innocence Project said experts estimate that DNA testing was possible in only 5 percent to 10 percent of all criminal cases.
“Many of the kinds of crimes where eyewitness misidentification come up are excluded because they are not the kinds of cases where DNA would ever have existed,” Newirth said. “We can only say for certain how prevalent it is in our cases and then assume that that’s really just the tip of the iceberg.”