Jasmine Hawkins

Honors Essay 1: Law 310 H

January 31, 2016
In the case of the murder of John and Jane Smith, there are many potential issues that are
likely to arise with respect to evidence. Foremost, eyewitness testimony presents a significant
challenge in terms of both its accuracy and admissibility. Estimator variables, those that are not
under control of the criminal justice system and are inherently linked to the capability of the
witness, incite a variety of issues in this case; these include both the characteristics of the witness
and event. Eyewitness identification is a classical approach to identifying the perpetrator of a
crime, and science has clearly illustrated the inaccuracy of this testimony. Professor Brandon
Garrett examined the cases of the first 250 people to be exonerated by DNA testing. Eyewitness
misidentification occurred in 190 of Garrets 250 cases. Scientific research has exposed the
limitation of face perception and memory, which are easily contaminated through a variety of
internal and external forces: ones expectations and beliefs; the simple desire to help apprehend a
perpetrator; the mere passage of time; or suggestion from police, cowitnesses, media, and other
sources1.
Characteristics of the witness, a key estimator variable, undoubtedly present enormous
problems for identification in this case. The next-door neighbor, an elderly woman, stated
positively that one of the assailants was Joe Bailey, a well-known drug dealer in the
neighborhood. While her back door window was only several feet away from the back door of
the Smith home, her eyewitness identification could have been distorted by her expectation that
Joe Bailey committed the murder of the Smiths, due to her preconceived conception of him as a
drug dealer within her own neighborhood. Additionally, there is the possibility that her memory
was contaminated by suggestion. This presents a tremendous obstacle against the admissibility of
her eyewitness identification because once contaminated, memories cannot be purified and
restored to their original state through purportedly curative, non-suggestive procedures1.
Additionally, a study by Pozzulo and Lindsay in 1998 indicated that the age of the eyewitness
has been consistently linked to eyewitness performance, with elderly performing significantly
worse than younger adults2.

Another significant drawback to the accuracy of the elderly ladys testimony that occurs
pervasively, and not as a result of suggestive forces, is the characteristics of the event. While the
elderly woman positively identified Joe Bailey, other neighbors indicated that they could not
identify the assailants due to the dark lighting and raining conditions. The accuracy of the
identification can be significantly impacted by these physical conditions in which lighting and
weather conditions influence visibility. In addition, the neighbors indicated that two to four
presumed assailants left the home after shots were fired. The uncertainty of this varied range of
suspects greatly weakens the credibility of their testimonies due to the overwhelming evidence
that eyewitness identification is highly fallible. Memory has the tendency to be constructed so
that missing information is supplied from biases or expectations from an external source, which
raises the possibility that the neighbors relied on distorted memories to identify the number of
assailants3. Consequently, the police also arrest Joe Baileys brother, and frequent partner in
crime, Jasper. Although Jasper has a record of criminal history, his arrest is based on the
assumptions of police suggestion and weak reliability of the neighbors identified range of the
number of possible suspects. The case presents no evidence that Jasper was involved in the
crime, or even had knowledge of the murder.
In regards to the trace evidence in this case, the Jeep Cherokee identified as the alleged
get-away car produced no physical evidence because it has clearly been washed and detailed.
Sam Spade, a cousin of Joe and his brother Jasper Bailey, was identified as the owner of the car.
Police found traces of canine blood in the treads of his shoes, which was used as evidence
regarding Gypsys death. There are potential issues that are likely to arise with the admissibility
of this evidence. The primary limitation of the analysis of trace evidence is that most trace
evidence is unable to directly link or identify an individual or specific object4. The evidence of
canine blood in Sams shoes could face difficulties in admissibility because the criminal justice
system must also consider the likelihood that Sam accidently stepped on canine blood in his
daily life. The defense could utilize statistics that an individual could step on canine blood in the
surrounding area, and if this probability were extremely high due to the population of canines in
the neighborhood, the admissibility of the evidence and convicting Sam would be considerably
more difficult. Additionally, evidence presented by the defense could demonstrate trace evidence
of the suspect being at home during the crime, or a clear record that the suspect maintains a clean

and detailed car. In this case, trace evidence can actually exclude individuals from an
investigation4. As a result of these limitations, it is highly improbable that the prosecution will be
able to conclusively show that Sam Spade was present by reason of the canine blood on his
shoes.
Police also find bloody clothing in the trash at Joe Baileys residence. The police know
Joe Bailey well which leads to a search warrant of his house. Foremost, this relationship between
the police and suspect is significantly limited by the possibility of suggestion; the police may
have expectations or the desire to apprehend the perpetrator from previous beliefs. The DNA lab
indicates that the blood on the clothing matches that of John and Jane Smith. Although DNA
evidence appears promising for the conviction of Joe Bailey, it presents the challenge of being
admitted under the assumption that the DNA testing followed correct protocol and was not
contaminated. While the probability of this has been proven to be extremely low, it may invoke
challenges against the conviction of the suspects. The issue that arises with the admissibility of
DNA is that the Frye standard and Daubert standard must be applied. The standards of
admissibility have varied from state to state due to various state laws; there has yet to be one
singular method regarding DNA weight and admissibility5. A recent investigation examining the
Houston Police Departments crime laboratory revealed a significant amount of quality DNA
testing issues including lack of training6. The possibility of untrained lab technicians, low
standards for laboratory personnel, and experts deliberately manipulating results in order to
mislead a judge or jury, raises the potential for mistakes and false matches5.
The evidence presented in this case is primarily limited by the significant fallibility and
inaccuracy of eyewitness identification. The characteristics of the witness and of the event inhibit
the admissibility of the neighbors testimony due to the possibility of suggestion and falsified
memories. Trace evidence found in the case may be unable to directly link the suspect to the
crime, deeming the admissibility of this evidence considerably undermined. While the DNA
found in this case serves as the most probable form of admissible evidence, human error,
laboratory protocol, and juror impact still remain unresolved issues.

Literature Cited
1. Davis, D., & Loftus, E. F. (2012). The Dangers of Eyewitnesses for the Innocent:
Learning from the Past and Projecting into the Age of Social Media. New England Law
Review, 46(769), 770-809. Retrieved from
http://www.nesl.edu/userfiles/file/lawreview/Vol46/4/LoftusDavis - Final.pdf
2. Wells, G. L., & Olson, E. A. (2003). Eyewitness Testimony [Review]. Advance, 54, 277295. Retrieved from
http://www.annualreviews.org.offcampus.lib.washington.edu/doi/pdf/10.1146/annurev.ps
ych.54.101601.145028
3. Green, M. (2013). Visual Expert Human Factors: Errors in Eyewitness Identification
Procedures. Retrieved from http://www.visualexpert.com/Resources/mistakenid.html
4. National Forensic Science Technology Center. (2009). A Simplified Guide To Trace
Evidence. Retrieved from http://www.crime-scene-investigator.net/simplified-guide-tocrime-scene-investigation.html
5. Behrouzfard, N. R. (2006). Strengths, Limitations, and Controversies of DNA Evidence
(Vol. 1, Trends and Issues in Scientific Evidence, pp. 110-141, Publication). Dartmouth,
MA: University of Massachusetts Dartmouth School of Law.
6. Leung, R. (2003, May 27). DNA Testing: Foolproof? Retrieved from
http://www.cbsnews.com/news/dna-testing-foolproof/