The Duke Sexual Crime Case and the Foibles of Memory (Including My Own)

Without having seen the evidence, I can’t speak to the wisdom of Durham D.A. Michael Nifong’s decision to drop the rape count but continue to pursue the kidnapping and sexual offense charges in the case against three Duke lacrosse players. I would note, however, the problematic nature of one reason offered by Nifong for possibly dropping the charges at a later date. The alleged victim’s original identification of the defendants was based on a photo array. The NY Times today attributes to Nifong the statement that if she expresses doubts about her assailants’ identities when she sees them at the pretrial hearing, then he could dismiss the case. “The only real time that you’re able to say if you have a misidentification is to put the person in the courtroom with the other people,” Nifong reportedly said.

Now there may well be good reasons to doubt the alleged victim’s reliability as a witness, including the lack of any physical evidence linking the defendants and the fact that her account of what happened has apparently changed several times. In addition, the original photo array was arguably flawed and the accuser did not at first identify these defendants. But if one thinks, as Nifong does, that the evidence as it stands now is sufficient to go to a jury, then if the alleged victim expresses new doubts based on seeing the defendants live, that fact should not carry much if any weight. Although a live i.d. may be more accurate than a photo i.d., a witness’ recollection many months after the incident is almost certainly less reliable than her recollection closer to the event—regardless of whether the respective i.d.’s are via photos or live.

I could cite scientific evidence about the fallibility of memory, but instead I’ll simply relate my own experience as a crime victim. While I was living in Los Angeles in the early 90s, I was held up by a gunman after I (foolishly) took money out of an ATM one night. The man approached me and my wife as we left the ATM and asked me for the money I had withdrawn (which I provided), and then instructed me to return to the ATM for more cash. Because of the bank’s maximum withdrawal policy, the ATM was not cooperative, and so my assailant and I talked for a few moments about what amount of money to request so that it would provide any additional cash. Those roughly 30 to 60 seconds together afforded me a reasonably good look at his face, not that I was especially focusing on anything but surviving the incident. Eventually our robber gave up on getting more funds and let us go.

We reported the case to the LAPD and gave what I thought was a not-very-helpful description of the gunman. Much to our surprise we got a phone call a few weeks later that the police had a suspect in custody. (We later learned that he and his getaway man were apprehended when the two of them and a third man engaged in a gunfight with the police during another ATM robbery, resulting in the third robber’s death. So felony murder was among the charges my robber would ultimately face.) Because of the high crime rate at the time, the LAPD was able to conduct lineups in which every person in the lineup was a suspect, just for different crimes, with various victims sitting at separate desks writing down their own choices for their crime. It reminded me of taking the LSAT, except with criminals present. Anyway, I identified my robber, as did my wife. We were relieved when we discovered that we had each identified the same suspect. Then we didn’t hear anything for months.

By the time of the trial, nearly a year after the robbery, however, I was no longer able to identify the robber, even though it was pretty obvious that it could only be one of the two men sitting in orange jumpsuits at the defense table. One of these men was the getaway driver that I had not seen during the robbery, and I was about 80% sure who was who, but I had nothing like the feeling of near-certainty I had when I first saw the suspect in the lineup. Why not? Well obviously, my memory of the event had faded. I told the prosecutor and the defense attorney on cross that I remembered being confident in my i.d. near the time of the crime. Outside the courtroom, the prosecutor told me that my testimony had been very helpful, and I believed him. Surely jurors would understand that memory becomes less reliable over time. Bottom line: Based on my testimony and the testimony of other witnesses (including my wife) who did i.d. the defendant in court, he was convicted on all counts.