GoKawiilAt dawn in late January 1998, two men entered the home of Betty Black in Farmers Branch, a suburb of Dallas, Texas. They killed her in an apparent burglary gone wrong. A few hours later, an eyewitness — Black’s neighbour — described what she had seen to police. She said that two white men with long hair had got out of a car and walked towards Black’s house in the early morning light.
The neighbour, Jill Barganier, went to the police station the next day and identified Richard Childs, a white man with long hair, as the car’s driver. Childs would later confess to his involvement and serve 16 years in prison.
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Over the next week, the police homed in on 28-year-old Charles Don Flores as the second suspect. Flores had been seen with Childs on the morning of the murder, but he was a Latino man with short hair. On 4 February, Barganier was called to the police station. There, in an attempt to jog her memory, an officer used ‘forensic hypnosis’, a discredited practice that has since been discontinued in Texas and many other jurisdictions. During the session, he suggested to Barganier that one of the men might have had “neatly trimmed” hair. She once again described the passenger as a white man with long hair and then helped police to produce a composite sketch that looked nothing like Flores. She studied another photo line-up consisting of Flores and five other Latino men with short hair; she didn’t recognize any of them.
More than a year later, however, in March 1999, Barganier’s memory had changed. She testified in court that Flores was in the car, saying that she was “over 100 percent” sure that he was the man she had seen. In the absence of DNA evidence connecting Flores to the crime, this testimony became the cornerstone of the prosecution’s case. A jury convicted Flores of capital murder, and he is currently on death row.
For decades, researchers have raised concerns about the reliability of eyewitness testimony in criminal cases. Memories can be flawed, degraded, biased and contaminated. These problems are often intensified by unsound or inconsistent methods used by the police when eyewitness accounts are first taken. For many scientists in the field, memory is simply not to be trusted.
An eyewitness to a murder rejected a photo line-up that included a picture of Charles Don Flores (left); they then helped to create a composite sketch of the suspect (right). Flores was convicted of the crime.
But the science of memory has been shifting. A re-evaluation of real-world criminal cases and laboratory experiments suggests that an eyewitness’s confidence in a specific memory can be a strong indicator of the veracity of their account, at least in certain circumstances. Flores’s case reveals chronic issues with how eyewitness testimony is used. Scientists argue that some memories — such as Barganier’s initial rejection of the line-up that contained Flores’s picture — should be considered more reliable than others.
Some jurisdictions in the United States and elsewhere have begun to adopt methods that take this shifting science into account. But the research faces an uphill struggle. The criminal-justice system can be notoriously slow to change practices, and eyewitness testimony, despite its known flaws, carries considerable weight. “This is the huge problem,” says John Wixted, a memory researcher at the University of California, San Diego.
Although judges, jurors and the public will defer to experts on DNA evidence and fingerprint analysis, everyone has experience with memory. “Our false memories feel true,” Wixted says. Now, he is hoping that his arguments will help in a petition to the US Supreme Court to reconsider Flores’s conviction.
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