Last week, the Innocence Project filed a friend of the court brief in support of allowing an ID expert to testify in the retrial of two brothers, Thomas and Raymond Highers. They want to call an expert in eyewitness identification memory and perception. They are being retried for the 1988 murder of Detroit drug dealer Robert Karey. In August, their convictions and life sentences were overturned based on new evidence. State prosecutors have decided to retry the two beginning on October 16th. Their original convictions were based almost entirely on testimony of an eyewitness who identified Raymond Highers as one of the two men they saw fleeing Karey’s house after his murder. This witness estimated they were about 60 feet from the men. It was dusk at the time and he had just heard a series of gunshots before he saw the men.
A 2009 Facebook conversation between two Detroit residents led to the discovery that the two men fleeing weren’t the Highers brothers and they weren’t Karey’s killers. They were in fact two recent high school graduates who were going to buy drugs from Karey, but were suddenly confronted by a group of men who had weapons. The men demanded they leave, which they complied with. As they ran away, they heard gunshots.
Unlike the Highers brothers and the original eyewitness description of the supposed killers, the armed men who the newly discovered witnesses saw were African American. Sworn statements by these men who were at the victim’s house and confronted by armed men before the killing provide corroborating evidence to the Highers brother’s innocence claim. This along with other evidence led to a new trial for the Highers brothers who have spent 25 years in prison.
The Highers’ attorneys have asked the court to allow them to call an expert on eyewitness memory and perception to explain to jurors how conditions at both the time of and after an event — including during identification procedures — can negatively affect the accuracy of an identification. Factors include, stress, low light, amount of time viewing, the lineup administrator’s conscious or unconscious cues, failure to provide pre-lineup instructions that the suspect may not be in the lineup making the witness feel pressured, presentation of the lineup, and post-event information from others, including the media. These factors can also falsely inflate a witness’ confidence in their identification accuracy.
In the Highers case, the eyewitness states he is 100% certain that Raymond Highers was the one running from the scene despite 2 other men saying they were the ones running. Jurors may not understand that witness confidence doesn’t equate to accuracy or truthfulness. Research shows juries are influenced by witness confidence. A hearing is scheduled for Monday.
The Innocence Project’s brief can be read here.