Fulero: An Eyewitness Expert

Solomon Fulero knows a lot about eyewitness identification and testimony. Dr. Fulero, who is a practicing lawyer, a practicing psychologist, and the chairman of the Sinclair College psychology department, has written extensively on the subject of witness reliability, and has served as an expert witness on the subject in more than 60 felony trials.

When 48 Hours caught with him, he was in San Juan Airport, on his way to give expert testimony in a case of attempted murder on the island of St. Thomas. Here's what Dr. Fulero had to say about the eyewitnesses, memory and justice.

On Eyewitness Believability

"I would say that the real problem is that jurors tend to overbelieve a very confident eyewitness identification. They look at the wrong kinds of factors in making a judgment about whether an eyewitness is accurate or not."

"They look at things like whether the witness is confident....The problem is that eyewitnesses are often incorrect. You've got a person viewing somebody for a real short time under very stressful circumstances. Later on, being exposed to perhaps a photo spread or a lineup that's done under conditions that are not perhaps pristine."

"And they make an ID and they're real sure about it, because they're told that this is the suspect, and they get into court and they say, 'that's the guy, I'll never forget his face.'"

The Brain Is Not a VHS Player

"Memory doesn't really work like a video recorder, and so information that people get about an event after it occurs can actually get incorporated into their memory and then they remember it later as though it had already happened at the earlier time."

"In other words, if I question you after the event, I plant a piece of information by a leading question - 'What color was his moustache?' - when the guy didn't have a moustache. Then later on, the person may remember a moustache. That's called post-event information."

"[Memory] is like a computer. You write a letter and you save it, then you call the letter up and you make changes to the letter and then save it under the same name; the changed letter is what comes up later."

On the Subtle Steering of Witnesses

"I've seen [lineups] where the witness described the person who robbed them as someone who was short, you know 5'5", 5'6" in height, kind of thin and so on."

"What the police did was a photo spread where there were six pictures total, counting his picture. But the other five pictures were all full face, so the camera was right close up so it made the person look big, because they took up the whole frame."

"But the defendant - they had the camera back kind of far so that the way the picture looked - he looked short, because he only took up the bottom half of the frame. So if you put the six pictures across, he looked ike the short guy."

Do Police Intentionally Misguide Witnesses?

"They don't really know the literature and what happens....I've come to understand over the years that a lot of it is just unintentional of ignorance."

The Cost of Incorrect Eyewitness Identification

"Every year in the United States, there is something on the order of one and a half million felony convictions. If the system is 99.5 percent, there's only a .5 percent error rate. And you know that no system is that perfect."

"If there's only a .5 percent error rate, that's 7,500 wrongful felony convictions every year. And it goes up another 7,500 for every .5 that the system is off. Imagine if it's only 90 percent accurate, you know, there's thousands of wrongful convictions."

"The other thing that we know is that from several studies, including the government's own stuff, that a little bit over half of wrongful convictions are eyewitness-identification cases."

"So we guess that there are probably about four thousand wrongful convictions a year that are based on eyewitness testimony - felony convictions. That doesn't count misdemeanors and it doesn't count people who take pleas to lesser charges....The numbers are pretty staggering."

The Problem of Weapons Focus

"If you picture the crime scenario, most people walk into the situation not knowing that anything is going to occur. So they're not primed to think that they have to remember."

"The prototypical situation is that someone walks up to you with a gun and sticks it out at you and says, 'give me everything you've got' or something like that. And so, you know, and it usually goes pretty quickly."

"And so, in that scenario, first of all, there's something that we call 'weapons focus.' People's attention is drawn to the weapon. It's the most salient detail in the whole situation, so you are staring at the gun."

"And, in fact, witnesses will often give you very good descriptions of the gun. They'll tell you everything about it. But to the extent that a person's attention is focused there, it's not focused on the face, which is where it needs to be focused. So the presence of a weapon impairs accuracy."

Stress Worsens Memory

"The other thing is that when you're under stress, time seems to slow down. Everything seems to take longer. And so, people, ou ask them, 'Well how long did you have to view the suspect?' And they'll say, 'jeez, one minute, two minutes.' When really it was 10 or 12 seconds."

"So there is the time overestimation thing. The truth is that people who were under stress are actually less accurate not more accurate. Stress causes people to make mistakes, but jurors believe that a person under stress is going to remember it better because it's burned into their memory."

Written by David Kohn