Eyewitness evidence and eyewitness science: Whether the twain shall meet?

JurisdictionSouth Africa
Pages305-326
Citation(2009) 22 SACJ 305
Date16 August 2019
Published date16 August 2019
AuthorLirieka Meintjes-van der Walt
Eyewitness evidence and eyewitness
science: Whether the twain
shall meet?
LIRIEKA MEINTJES-VAN DER WALT*
Take nothing on looks; take everything on evidence.
Charles Dickens Great Expectations 1861
1. Introduction
1.1 Identication evidence
As early as 1926 a note in the South African Law Journal 1 sounded the
following warning:
‘The defence of mistaken identity is one which ought to receive the most
careful consideration and thorough investigation, for mistaken identity is
the most likely and common cause of miscarriages of justice, and such mis-
carriages not only shock the public conscience but give rise to doubt and
uneasiness as to the administration of justice.’2
More recently the post-conviction exoneration cases based on DNA3
testing have empirically shown that mistaken eyewitness identif‌ication
is the major cause of wrongful convictions. In the 216 exoneration
cases described on the Innocence Project website,4 faulty eyewitness
identif‌ication was responsible for 77% of the cases. In a 2005 study of
340 prisoners exonerated by DNA evidence,5 it was found that half of
* B Juris LLB (UPE) LLM (Rhodes) LLD (Rijksuniversiteit Leiden) Adjunct Professor of
Law Fort Hare University Member of the Grahamstown Bar.
1 The Justice of the Peace (pseudonym) ‘Identif‌ication’ (1926) SALJ 287.
2 Ibid.
3 Deoxyribonucleic Acid (DNA) is a complex molecule that encodes the complete
genetic information of an organism.
4 Innocence Project available at http://www.innocenceproject.org/understand, accessed
on 12/01/2008.
5 S R Gross ‘Exonerations in the United States’ (2005) 95 (2) J of Criminal Law and
Criminology at 523.
ARTICLES
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(2009) 22 SACJ 305
© Juta and Company (Pty) Ltd
the 205 wrongful murder convictions and 88% of the wrongful rape
convictions were as a result of false eyewitness identif‌ication.
One of the most vivid examples of positive identif‌ication that proved
to be wrong, must be the case of Jennifer Thompson. In 1984 she
was a college student when she was raped in her own home. During
the ordeal she decided to concentrate on every detail of the rapist in
order to identify him later. She took every opportunity to study his
face as they moved through the house in several rooms where the
light was on. She identif‌ied Ronald Cotton from police photographs
and later during an identity parade: ‘I identif‌ied my attacker. I knew
this was the man. I was completely conf‌ident. I was sure.’6 But she was
wrong. Even when Bobby Poole confessed to the rape and was shown
to her, her response was, ‘I have never seen him in my life’.7 Eleven
years after being incarcerated, Ronald Cotton was exonerated by DNA
evidence that showed that another man with similar features was the
perpetrator.8
1.2 DNA testing: instrumental to renewed vigilance
The extraordinary power of DNA typing techniques9 has led to persons
who have been convicted of crimes, often decades earlier, to seek
DNA testing to corroborate their claims of innocence.10 In 35% of the
post-conviction exoneration cases,11 the actual perpetrators were also
brought to justice through DNA testing.12
6 ‘I was certain, but I was wrong’ NY Times June 18 (2000), available at http://www.
innocenceproject.org/know, accessed on 13 January 2008.
7 Ibid.
8 Frontline: What Jennifer saw transcript available at http://www.pbs.org/wgbh/pages/
frontline/shows/dna/, accessed on 12 December 2008.
9 DNA is a powerful forensic tool for the following reasons:
i) it has a very high discrimination power. Except for identical twins, no two peo-
ple have identical DNA;
ii) an individual’s DNA prof‌ile does not change over time;
iii) different cells have identical DNA sequences;
iv) DNA is stable and reliable data can be obtained from old, small and decayed
biological samples.
For a discussion of the biological principles underlying DNA analysis see L Meintjes-
van der Walt. ‘An Overview of DNA testing in South Africa’ (2008) SACJ 22.
10 B Schek, B Neufeld and J Dwyer Actual Innocence (2000), available at http://www.
innocenceproject.org/know, accessed on 20 September 2008; see also P Johnson and
R Williams ‘Post-conviction DNA testing: the UK’s f‌irst-exoneration’ case’ (2004) 44 (2)
Science and Justice 77.
11 Ibid.
12 Ibid.
306 SACJ . (2009) 3
© Juta and Company (Pty) Ltd

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