The Hanging Judge Stands Alone

by Stuart Shapiro

The Supreme Court issued one of its first decisions of its term this week.  As is typical of decisions issued early in a term, it was an easy one.  A near unanimous decision reversing the conviction of a man convicted on the basis of the testimony of a single witness.  The witness was unable to provide details about the perpetrator on the day of the crime or repeatedly afterwards until he saw the suspect described in a newspaper story.  The prosecutors did not reveal this important piece of information to the defense as they were required to do.  Notice I said “near-unanimous.”  The lone dissenter?

But then Justice Thomas wrote a long, long (17-page) dissent.  .  . But what might elude you on first reading is that here Justice Thomas calls the witness “the eyewitness.” Justice Thomas argues that the revelations about this witness would not likely have made a difference at trial, even if they could have been given “some weight.” Justice Thomas emphasizes how, even months after the crime, the eyewitness saw Smith’s photo and said, “This is it. I’ll never forget that face.” The witness had described the perpetrator as having gold teeth, which Smith did have (although apparently several other suspects did as well). . .

This analysis indicates little familiarity with the vast body of research on eyewitness memory. We know, for instance, that the memory of an eyewitness degrades—in a matter of hours, not days. If this eyewitness knew he could not identify the attacker on the day of, or in the days after the crime, nothing that happened in the weeks and months that came later could somehow improve a rapidly vanishing memory. Nor does the confidence of an eyewitness at trial mean much at all as to its accuracy.

When presidential candidates say they want justices like Thomas on the bench, it means they want justices who care more about locking someone up then they do about locking the right person up.

By: Stuart Shapiro

Stuart is a professor and the Director of the Public Policy
program at the Bloustein School of Planning and Public Policy at Rutgers
University. He teaches economics and cost-benefit analysis and studies
regulation in the United States at both the federal and state levels.
Prior to coming to Rutgers, Stuart worked for five years at the Office
of Management and Budget in Washington under Presidents Clinton and
George W. Bush.