Perception v. Reality

Perception v. Reality

Witness Reliability in Criminal Defense

Social Media has recently posed the explosive questions: Do you hear “Laurel” or “Yanny?” Is the dress black and blue or white and gold? (https://slate.com/technology/2018/05/yanny-vs-laurel-is-the-dress-for-your-ears.html). These examples demonstrate that our senses are variable, inconsistent and often unreliable. Moreover, even our individual perceptions of actual, recorded “evidence” – – be it written, documented, visual and even audibly recorded – – can differ greatly from place to place, person to person or device to device.

Which raises the obvious question: Just how reliable are our “witness” accounts of the actions, sounds and sights around us?

The unreliability of an individual’s actual account of an incident, albeit a crime or an everyday occurrence, is so great I have often said I hope no one ever has to testify either FOR me or AGAINST me. There is always the specter of “the truth versus the perception of the truth.”

Have you ever thought “did I actually tell someone something?” or did you just THINK about it and then you aren’t sure whether you actually said anything or not? Haven’t you left a room purposefully on your way to do or get something only to wonder a few steps into your journey “what was I going this way for?” That is exactly how sporadic, erratic and untrustworthy our minds and memories sometimes are. Scary isn’t it?

Let’s take driving for instance. Have you ever driven through a light and then thought “I hope that light was really green!?” Have you been driving along listening to the radio and the next thing you know the song you loved is over and there is some new song you’ve never heard of jamming away? When did the other song end? Was it one song or two songs ago?

I was heading across town the other day and was stopped second in line at a red light. Before I realized it, while our light was still clearly red (at least that is what I was seeing) the car in front of me began pulling into the intersection. The cars coming across the intersection to our left began moving as their light turned green. Fortunately no one was desperate to get across the intersection so there was time for the cars to our left to stop and wait for the car in front of me to pull back behind the line to wait for the green light. What happened to the driver in front of me? Obviously in his mind he had “seen” or at least anticipated that our light was turning green and it was his time to proceed. Clearly NOT the case – – – or was it?

Let’s take the case of your walking past someone on the street, or seeing them at another table across the restaurant and you think to yourself “Who is that? I know I know him or her from somewhere! I just can’t put my finger on it.” You keep filing through your memory – – – “Did I go to school with them? Did I work with them? Did their daughter take dance lessons with mine?” Long after the moment has passed you are still trying to make the connection.

How does all of this “unreliability” of our minds, memories and senses play out in the criminal justice system? How easy would it be for someone with an “unreliable” memory to name you as the one who committed a crime? It happens more than you think! Whether you are a prosecutor or a defense attorney, judge, law enforcement officer or the defendant himself, you have to rely on these, at best “faulty” eyewitness accounts.

Was the light red or green? Do I really recognize the defendant or does he or she just remind me of someone in my past? Did I really hear a shot, or scream, or crash at 6:00 p.m.?

In selecting a defense attorney and relying on that person to build the facts and evidence in YOUR favor, you need to be aware of the disputing possibilities of facts and evidence that will either help build the case against you or turn it in your favor. Establishing witness reliability in criminal defense is critical! You need to choose a defense attorney who knows and can use the unreliability of eyewitness accounts to your benefit.

I am that attorney! I will develop the most effective and “reliable” defense possible by exposing these faulty memories and recollections. Everyone is human and bad things truly do happen to good people. I am here to help! Contact me!

About The Author

After graduating from the University of Louisville School of Law, I began practicing in Louisville where I remained for 14 years. I've now been practicing law for more than 20 years and have a passion for the law. I handle each case personally and mount the most effective defense for my criminal clients. I also draw on my experience in the auto industry when representing my auto clients. Remember, bad things happen to good people. When you find yourself involved with the government in a criminal case or dealing with one of the many issues involving the auto business, I bring a unique perspective and body of knowledge to the situation to assist my clients.