“Few rights are more important than a right to a fair trial.” According to this article, in The Mercury News, these words were spoken in court last week by attorney David Lynch, defense counsel for James Joseph DeAngelo, the alleged Golden State Killer. Mr Lynch is right. His words are of the utmost importance. So important, in fact, we spend significant time in law school learning criminal justice and rights of the accused. As I recall, there were at least two courses dedicated to the subject entirely: Criminal Law and Criminal Procedure. Other courses are substantially related to the topic, i.e., Evidence and Constitutional Law.
Even for the worst criminals accused of the most heinous crimes, we have to offer a fair trial. It should remain a priority for a civil society. I, for one, would rather a guilty person go free than an innocent person be imprisoned. I feel the readers pulling away from me at this point. You may be asking, “How can you say that about the Golden State Killer? Have you read about his crimes?” Yes, I have, and I understand the emotions tied to convicting him. In fact, if Mr. DeAngelo has committed the crimes he’s accused of, I want him convicted. However, I want him to have a fair trial and I expect the prosecution to prove their case. That’s the law and it should be followed. If proper procedures are followed, it also avoids the case being overturned on appeal.
For our purposes, David Lynch provided an even more interesting statement in court last week. Mr. Lynch said, “When you have an old memory, it can be tainted if you get new information.” The Mercury News elaborated on his concern:
“Lynch estimated 16,000 articles were written about the Golden State Killer online, including more than 100 by the local Sacramento newspaper within two weeks of DeAngelo’s arrest. He said releasing information could affect witnesses’ memories and hurt the jury selection process.”
Based on my experience working with expert witnesses, I know there are immense concerns about matters such as eyewitness identification and witness memory. I mention the two together because memory can impact identification.
In the Golden State Killer matter, we have no publicly available information of an eyewitness identification (no reporting about photo identification or line-ups). Nevertheless, we do have many eyewitnesses to the crimes (including over 40 rape victims). As such, Mr. Lynch is probably concerned about other memories associated with the crimes. Such as physical attributes, physical description, verbal interactions, time of day, weather, residential layout, and more. Defense counsel doesn’t want new information released to the potential jury pool, victims, and other witnesses that might create false memories about which they may later testify.
Allyson Kacmarski – Criminal Defense Lawyer – Wilkes Barre, PA
To help our readers understand the concerns of David Lynch, I thought it was important to get some further input on memory concerns from a practicing defense attorney, so I reached out to a friend who practices criminal defense in Pennsylvania.
Allyson L. Kacmarski is a former public defender and former Assistant District Attorney who is now in private practice in Wilkes Barre, PA. Her firm is a full-service criminal defense and family law office serving clients in Wilkes-Barre, Luzerne County, and throughout northeastern Pennsylvania. Allyson does some spectacular work connecting and educating clients via her Instagram account. You can learn more about her practice by visiting attorneyallyson.com.
I posed some questions to Allyson and she provided some very detailed answers regarding her concerns about witness memories.
Nick: From a criminal defense perspective, what concerns would you have about information impacting witness memories?
Ms. Kacmarski: I like to believe that a witness’ memory is best right after the crime occurs. Think about this in your own life. When you tell a friend a story, the story has more details when you share this story within hours or days of the incident occurring, rather than months or years. Allowing an alleged victim or witness to read newspaper articles or portions of police reports can definitely impact the way a person recalls the incident. It’s always a cause for concern when a witness testifies at trial to details that were not contained in the original statement to the police. The question becomes, where did the witness get this “new” information from? Was it the newspaper? Maybe it was during witness prep with the police who are now providing information to the witness by asking questions that this witness did not know the answer to originally. Most people want to help the police and “catch the killer,” so there is definitely an innate pressure to agree with the police when they asked leading questions such as, “isn’t this the gun that the suspect had?” A person may say, “Oh, yes” even if he/she doesn’t remember because he/she doesn’t want to make the police mad or blow the case and let the killer go free. When you hear something enough, anyone can start to believe it is real and true, even if it’s not.
Nick: Does the defense attorney for the Golden State Killer have a valid concern about “tainted” memories?
Ms. Kacmarski: Yes, but this concern applies to any criminal case, not just the Golden State Killer. The pressure is always on in any case for a witness to testify successfully to facts that will show the Defendant is guilty of the crime as charged. For example, in criminal cases involving the testimony of a child, the court may have a taint hearing to determine if the child’s memory has been compromised by outside influences, such as a parent flat-out telling the child what to say or maybe it’s bad questioning or suggestive questioning by an interviewer that affects the child’s memory. The point is, whether it’s reading details in a newspaper article, talking to the police about the case during an interview, or even a witness discussing the incident with family or friends, taint could always occur. Providing a witness with information and details that he/she did not initially disclose to the police, can always lead to a defense attorney questioning how accurate the witness’ memory truly is.
Nick: In your experience, are witness memories reliable?
Ms. Kacmarski: Maybe yes… Maybe no. For me, reliability can be influenced by outside factors. For example, a witness may distinctly remember all the details of an event because it was unique or odd or something stood out that he/she would never forget. Maybe it’s something about the way a person spoke, or looked, or acted or dressed that made the incident not only memorable, but ingrained in the witness’ brain. I also think the length of time a witness interacts with a person can affect the memory. If the interaction is short, say seconds or minutes, how many details will a witness be able to recall when he/she has very little time to observe the other person. Speaking of interaction, things like a gun being present and used during an incident can greatly impact the reliability of a witness’ memory. Often times, the witness is so focused on the gun, he/she may not remember anything else about the incident.
Nick: With no current reports of eyewitness identification, what types of memories might defense counsel be concerned about tainting? (i.e. times, dates, physical attributes of the suspect, weather, physical layouts of a residence).
Ms. Kacmarski: My biggest concern as to taint would be the physical appearance of the suspect. Without someone describing the height/weight, skin color and complexion, even hair color, the identity of the suspect is unknown. In the Golden State Killer, the news has reported it was the DNA that led to the arrest. Once he was arrested, the Golden State Killer has been all over the news. It is very easy for a witness to see this guy in the news and say, “yes, that is him, I remember that face.” If the original statement fails to detail the suspect’s face or some outstanding facial characteristic, the concern is now the news has tainted the identification of this witness.
Nick: With a case of this magnitude (crimes across the state) would you be worried about the heavy press coverage impacting witness memories?
Ms. Kacmarski: Heavy press coverage can always impact a case. First, let me just say this, and no offense to the news community. But what you read in the newspaper is not always what really took place. I can say from my own personal experience because I have read articles “quoting” statements I made during a trial and guess what … I didn’t say it or it was taken completely out of context. The point is, when people read something in the newspaper he/she thinks it is 100% true. Since we can’t stop a witness from reading the newspaper, or should I say searching the internet, we can’t control how reading a statement from the police, containing information from various witnesses all combined, as well as details about evidence collected can cause the memory of a witness to “change.” And let’s just say, seeing the picture of a person in handcuffs, in prison garb, being escorted by the police, can do a lot to a person’s memory as to who he/she believes the “killer” is. Seeing a person’s face and image enough times, when he/she is in police custody, can taint the person’s memory as to physical appearance and details, especially if this takes place prior to the police showing the witness a photo line-up.
Nick: Can you provide any examples from your own practice about faulty witness memories?
Ms. Kacmarski: Examples of faulty witness memories:
- In an attempted homicide case, a victim, who was shot in the back of the head, testified that he/she remembered what the gun looked like and then he/she described the gun to the jury. I asked the victim, “How do you know what the gun looked like, if you were lying face down on the ground?” The victim said, “Because the police told me about the gun.” I immediately asked “what?” The victim said “he/she couldn’t remember details of the incident, specifically the gun, so he/she asked the police and the police told him/her.”
- Right after a crime happened, the police arrive and within approximately 2 hours of the crime occurring, the police interview a witness who says, “I saw a man walking down the street with a tan coat and a gun.” Approximately 11 months later, after TV and newspaper articles, the witness tells the police when he/she is served with a subpoena for trial, “Oh yeah, that guy I saw, he is my neighbor and we have talked before this.” Fast-forward to trial, the witness says, his/her next door neighbor told him/her that “the guy lives across the street” and by the way, there was no talking, just a “Hi.”
Nick: Is there any other information you would like to provide about witness memories in regards to criminal defense matters?
Ms. Kacmarski: When looking at a witness’s memory of an incident, I like to look at all the surrounding factors that can impact the memory. In my opinion, things like the lighting, the time of day, was there a weapon involved, was the person under the influence of drugs and/or alcohol at the time of the incident, all count and can impact how a witness remembers an event. How about this: Does a person wear contacts or glasses and did he/she have them on during the incident? Looking at these factors, just to name a few, are key and can ultimately allow the defense to pick apart a witness’ statement show whether there has been taint.
Now that we know a little more about the concerns of defense counsel when dealing with witness memories, let’s hear from an expert about the reliability of such memories!
What do the experts have to say?
Now that you know the concerns of defense counsel in the Golden State Killer case, you may be wondering about the science behind tainted memories. If so, you’ll have to wait for another post on the subject in the near future. One of our members, a forensic psychology expert witness, is busy answering a litany of questions on the topic. As a primer, you may wish to read these articles on the related topic of faulty eyewitness identification.
- A Judicial Response to a Longstanding Problem: Faulty Eyewitness Identification
- Faulty Eyewitness ID: A Major Contributor To Wrongful Conviction