The human memory is not a video camera. It cannot record an image and later recall that image with one-hundred percent accuracy. The human memory is inherently flawed. Memories can change. In fact, the more you remember an event, the less reliable that memory can become.
More than 75,000 prosecutions every year are based entirely on the recollections of others. While perjury is a felony, the overwhelming majority of eyewitness errors aren't conscious or intentional. Rather, they're the inevitable side effects of the remembering process.
A great number of cases deal with the testimonies of eyewitnesses instead of mounds of physical evidence. Take a robbery for instance. A person is robbed. The process takes only a minute or two. The victim calls police, provides a description, and the police put together a photo lineup based on the description of the victim. A few days later - maybe even weeks later - the police show the victim the lineup and the victim chooses a person. That person who is selected will not be arrested and charged with the crime.
Perception at the time of the robbery, the ability to recollect details, and the passage of time will all have an impact on that victim's ability to remember. Especially if the victim is of one race and the accused is of another. I have heard many white and Hispanic victims say that "most black people look alike." That is a terrifying thing to hear in a robbery case because it so strongly suggests that the victim has misidentified the accused. Without supporting independent testimony or physical evidence, the jury must decide the case based solely on the testimony of the alleged victim. Even if that victim is mistaken, so long as the jury believes them, a conviction is likely.
Such errors often have tragic consequences. According to the Innocence Project, a legal advocacy group, about 75% of false convictions that are later overturned are based on faulty eyewitness testimony.
The point is - human memory is as frail and subject to error as humanity itself. People make mistakes. Our minds are not perfect. Unfortunately, these mistakes all too often lead to the incarceration of innocent people.
Eric Matheny is a criminal defense attorney serving Miami-Dade and Broward.