Natty Shafer Law

Utah lawyer for criminal and immigration cases

Monthly Archives: February 2012


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Eyewitness Testimony and its Problems


The front of the TRAX train has lifted onto the curb

I took the above pictures last night at my regular TRAX train stop. At the station, I talked to a number of people who were on the train when the truck and the train collided. These eyewitnesses all said pretty much the same thing: the guy in the red truck ran a red light and got hit by the train; the truck spun around and smashed into the concrete; and the train driver slammed on the breaks.

That sounded like a convincing eyewitness description of what happened until I dug a bit deeper. Everyone I talked to, when I asked if they saw the accident as it happened or if they only felt it, said that they only felt the accident. One guy said he was reading when it happened and just felt the train slam on its brakes. And from personal experience, I can’t see the traffic lights when I’m sitting on the train. How did everyone come to the conclusion that the truck ran a red light?

There’s two possible explanations for this consensus of what happened, despite few having actually watched it. 1) Everyone was passing along information they got from one of the few people who actually witnessed it. 2) Everyone was doing a lot of “gap filling” in their knowledge of what happened. They took what they knew to be facts and made assumptions about what happened. These two explanation are not mutually exclusive and actually reinforce one another. The gaps in our knowledge are most easily filled through information from other people. But it’s entirely possible that no passengers saw the truck run the red light and everyone is relying on gap filling, and groupthink was convincing each person of the correctness of this narrative.

Most of the time, there’s nothing wrong with gap filling or using second-hand information; such mental processes help us function. Unfortunately, people are very poor about remembering where they actually acquired a piece of information. Once our brains come to accept something as fact, we completely forget that we didn’t actually see the train colliding with the car. Instead, we remember the event around the narratives we have each formed in our heads. Also, memory is affected by retelling, but we rarely tell a story in a neutral fashion. People add emotion and subtle details to the narrative to help it arrive at a conclusion.

This can be a big problem for lawyers who need to question witnesses weeks or even years after an event. Witnesses will tell the juries that they saw the truck run the red light, when they really didn’t, and they are not necessarily being untruthful when they do that. They really think they saw the accident the way they recount.

There isn’t an easy solution to the memory problem. The more we learn about memory, the more we learn how fallible it is. Eyewitness testimony has an appropriate place in our court system, but that testimony should be buttressed with scientific evidence.


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Off Topic: Super Bowl Still Using Roman Numerals

Sunday is Super Bowl 46, but the NFL insists on calling it “Super Bowl XLVI.” What’s up with that? I’m sure this was very avant-garde back in 1969, the year of Super Bowl 3, which was the first time the NFL called it the “Super Bowl.” Super Bowls 1 & 2 were contemporaneously called the “AFL–NFL World Championship Game” and retroactively renamed.

Anyway, it’s no longer cute, NFL, and I refuse to play along. Everyone else should give it a try. It’s liberating.


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Mormons’ Views on Immigration Less Friendly Than Their Church’s

You wouldn’t know it from hearing Mormon politicians discuss their views on immigration, but their church, The Church of Jesus Christ of Latter-day Saints, has a fairly pro-immigration stance. Mitt Romney, during a January Republican presidential candidate debate, said he favors “self-deportation,” which he described as making it difficult for undocumented aliens to find work, so they return home. Russell Pearce, also a member, was one of the sponsors and main advocates of Arizona’s strong immigration law. (Pearce has since been voted out of office through Arizona’s recall election procedures.) Jason Chaffetz, Utah’s U.S. Representative for the 3rd congressional district, has also been a vocal opponent of immigration.

The LDS Church, which includes a large number of immigrants among its members, has a friendlier stance. When Utah was passing its own immigration law last year, church officials decided to endorse the bill, after they ensured that the bill included “guest worker” permits to allow undocumented aliens with jobs to stay in the United States. The LDS Church also released a number of explicit statements in favor of allowing some undocumented workers to stay.

So why the dichotomy between official church position and some of its most prominent politicians? Any thoughts would be appreciated.


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More on the GPS Case

Professor Orin Kerr made an interesting point over at The Volokh Conspiracy: the Supreme Court did not explicitly state that police officers need a warrant to attach a GPS device to a car. On Monday’s post I said that police will need a warrant, but the Court’s decision stops short of stating that. The Court said that the GPS device constituted a “search,” which generally requires a warrant, but there are so many exceptions to that rule that lawyers frequently get them mixed-up.

However, in practicality, the police really will need a warrant. Neither prosecutors nor police officers are going to risk losing otherwise good evidence just to test the state of the law. It may be a few years before the Court resolves this issue definitively.


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Talking to the Police

Theoretically, people have the right not to talk to police. I say “theoretically” because there are many situations where that is neither possible nor practical, but for this post, I’ll focus on the times where you might not want to talk to the police and you have the realistic choice not to do so.

The most frequent scenario where you will encounter a police officer is during a traffic stop. If you think there’s a chance that the officer will let you off with a warning, you’re best off just politely cooperating with him. But assuming you want to fight the ticket or if there’s a chance he will find evidence of other crimes in your car, you don’t have to answer his questions. The first question an officer asks you, usually, is, “Do you know why I pulled you over?” An officer who asks this wants you to admit to a traffic violation, and also he wants you to start a “voluntary” conversation with him. Hand the officer your license and registration and politely tell him that you are not going to answer any questions. After he has taken your license and registration, ask if you are free to go. This makes it clear that you are not consenting to stay.

Also, he is likely to ask you if you mind if he looks around in your car. You can say, “no.” Police officers are not being polite when they ask you for permission to do something; they need your consent.

If you live in a urban or suburban area, police may come to your home to investigate a noise complaint. That can be anything from domestic violence to a raucous party. Officers commonly ask if it’s “okay” if they look around your home. You have the right to say, “no.” Even if you have nothing illegal to hide, I wouldn’t let officers look around my house for the same reason I lock my doors: I don’t want strangers going through my home.

Another common situation where you are likely to encounter the police is if you happen to be nearby when a crime has been reported in a public place, such as a fight in a bar. It’s entirely likely that you’ll want to cooperate with the police, but you may have legitimate reasons not to. Obviously, if you are at all connected to the crime, don’t answer any questions. You shouldn’t run away, but calmly ask the officer if you are free to leave. If you aren’t under arrest, she has to let you go. Always ask if you are free to go if you don’t want to answer questions.