Eyewitness accounts and testimony

MAJ Hasan’s UCMJ Article 32 hearing and likely court-martial is drawing and will continue to draw lots of attention — of course, duh. But just as we have seen in other high profile cases there are opportunities for what I call teachable moments. Here are two from the item posted by CAAFLog about the witness who was ordered to destroy a video of the shooting he made on his cellphone. Forget the rhetoric about whether or not the Army was engaged in a cover-up.

1. Contemporaneous video’s and photos can provide vital evidence for both sides.

Nixon said he remembered Hasan because of “his stature and just how he composed himself — stoic.”

A video of this may have aided both sides. Was he stoic, or was that something else which might be relevant to a forensic health examiner. The demeanor certainly sounds damning. But could it be evidence or reflective of some other mental health disease or defect. For cases that happen on base or at a party or other event there is the potential for video and still photo evidence. Generally law enforcement doesn’t bother to collect it in most cases. As a defense counsel I’ve been able to use these contemporaneous photos to good effect. Defense counsel should always ask witnesses if there were photographs taken at an event. For example in the standard sexual assault case the event often starts at a party or a club. Digital cameras are ubiquitous and party-goers often take pictures. Those pictures may show the complaining witness or the accused at various times during the evening. If the issue is incapacitation, the complaining witness’ demeanor and actions, especially later in the evening, may be relevant. Or perhaps there’s a picture of the complaining witness kissing and cuddling with the accused on the couch, an event she denies, because it goes to a mistake or consent defense.

2. Eyewitness testimony is not as reliable as we believe. This is not a new topic. But we can see how eyewitnesses in stressful situations may not have an accurate, complete, or same memory of events. This raises a concern about post-event interviews of witnesses. The concern is how witnesses who are improperly interviewed may alter their memory to conform to facts learned from others. This is not necessarily deliberate but a psychological effect of being interviewed together with other witnesses or having their statement challenged by the investigator or being shown other statements by the investigator. There’s plenty of research on this. But here are the points from the AP article by Brown & Cracyk.

They have given similar accounts of how the rampage began, saying Hasan fired into a crowded waiting area and then walked around the building, shooting people as they hid under chairs and tables, pausing only to reload.

But have they? Later in the article the writers tell us that:

Only one witness has testified he saw two weapons. Others have said they saw one weapon, but descriptions about the gun have varied.

News reports on this have also varied. A minor difference you say. Maybe.

I’m not convinced as is Mr. McCarthy that this was a deliberate cover-up by the Army. Rather a silly mistake. That Soldier should have been ordered to turn over his cellphone as potential evidence. Once that is done the evidence can be put on an ECD by CID and retained as evidence. Sure the Soldier will be inconvenienced for a short while. But there are very good software programs and tools available to forensic computer examiners to quickly retrieve and preserve such “computer” evidence from the cellphone sim-card or SD card.