Listen carefully,” said Dave Gurney, “to this eyewitness description of a murder.”
He was standing at the podium in a lecture hall at the state police training academy, conducting a seminar titled “Evaluation of Eyewitness Statements.” There was a projection screen on a low stage behind him. He held a one-page form in his hand. Some eager cadets were leaning forward. All watching him.
“This recorded statement was given to an NYPD transit officer by Maria Santiago, a twenty-two-year-old teacher’s aide at a Bronx public school:
‘I was on the northbound platform at the 138th Street subway station. I was coming home from work, so it was around four o’clock. Not very crowded. There was this skinny, dark teenager, trying to look cool. Crazy clothes, like kids wear now. Near him there were these four older Anglo guys. Like construction guys. They started looking at the kid. Bad looks. One of them, big guy in a black leather jacket, dirty black jeans, said something about the kid’s clothes. Kid said something back. I’m not sure what, but in a Puerto Rican accent, like mine. Big guy suddenly pulled a gun out of his jacket pocket, shot the kid. People were running, shouting, everyone going nuts. Then the cops came.’
“Ms. Santiago’s full statement is longer than that,” said Gurney, looking up from the witness report, “but those are the main details. Anyone want me to go through it one more time?”
A female cadet in the front row raised her hand. “Could you, please?”
He read it again. “Anyone want to hear it a third time?”
No one said anything. He picked up a second report from the podium.
“This next example also comes from the NYPD transit division. It, too, describes a platform homicide. The statement was given by John McIntyre, a forty-five-year-old gas station owner:
‘It was rush hour, crowded, loads of people on the platform. I hate the subway, but once in a while I have to take it. It’s filthy. It stinks. People spit on the floor. So there was this fellow, coming home from work. Tired, stressed like. He was standing there, waiting for the train, minding his own business. And there was this bunch of black gangsta-rap assholes watching him. Scum of the earth. Puffy jackets. Stupid sneakers with the laces hanging off them. Stupid hats with hoodies over them. The leader of the pack has his eye on the guy who’s coming home from work. Evil eye, you could see it, looking for trouble. They say something back and forth. Then the black guy pulls out a gun, they get into a struggle, black guy gets shot with his own gun. Goes down on the platform. Ugly thing. But he asked for it. They call that karma, right? High on some shit. Meth makes them fuckers crazy.’
“Like the other statement,” said Gurney, “this one was edited down to a few essential points. Anyone want to hear it again?”
The same cadet asked for a repeat reading, and Gurney obliged. When he finished, he looked around the room and asked if anyone had any reaction to either statement.
At first the class remained silent. Then someone in the back row said, “Yeah, my reaction is stay the hell away from New York City.”
A few more comments followed from around the room.
Gurney waited. “Anyone have any idea why I chose those two statements?”
Eventually, a blond cadet with an earnest farm-boy face spoke up. “To make us glad we’re not transit cops?”
That was greeted by a few loud laughs.
Gurney waited.
The female cadet in the first row cocked her head and looked at him with a glint of suspicion in her eyes. “Because the two statements are from witnesses to the same homicide?”
Gurney smiled. A student’s leap of intuition always brightened his day.
In a scan of the room he saw expressions of disbelief, confusion, curiosity. A few cadets seemed to be practicing the police art of the neutral stare. He waited for the objections.
The first came from a wiry young man with small eyes and a sour mouth. “So, which one of them was lying?”
“They both took voluntary polygraphs, and the test expert concluded they were both telling the truth.”
“That’s impossible. There are direct contradictions—who had the gun, who was alone, who was part of a group, ethnicity, initial provocation, everything. They can’t both have been right.”
“True,” said Gurney mildly.
“But you said—”
“I said they were both telling the truth—not that they were both right.”
“The hell does that mean?” There was an angry vibe in the wiry young man that went beyond challenging an assertion—a vibe that did not bode well for a positive career in law enforcement. Gurney didn’t want to derail the lesson by confronting that issue now.
He addressed the whole class. “I’ll give you some more information. Then maybe someone can tell me what it means. Altogether, six witnesses to the incident were interviewed and submitted signed statements. According to those statements, one participant in the confrontation had a gun, the other had the gun, they both had guns. The individual who was shot was a dark-skinned African American in his twenties, or a light-skinned Hispanic teenager. He was solid-looking, he was thin, he was medium height, he was short. The other participant was wearing a black leather jacket, a dark shirt with no jacket, a brown windbreaker. The confrontation prior to the gunshot lasted five seconds, thirty seconds, more than a minute. They argued with each other, or they didn’t speak at all.” He paused. “What do you make of all that?”
“Jeez,” muttered the farm-boy cadet. “Sounds like the witnesses were on something.”
Gurney shrugged. “In the opinion of the officer conducting the interviews, all six witnesses were sober and credible.”
“Yeah, but . . . somebody got shot, so somebody had a gun. So, which one had it?”
Gurney smiled. “Right statement, wrong question.”
That resulted in a baffled silence, broken by a big bodybuilder with a shaved head in the back row. “Asking which one had the gun is the wrong question?”
“Right.”
The bodybuilder cadet squinted thoughtfully before replying. “Because they both had guns?”
“Or . . . ?” prompted Gurney.
“Neither one had a gun?”
“And if that were the case . . . ?”
The silence was broken this time by a voice from the middle of the room. “Someone else fired the shot!”
“That’s exactly what was confirmed by the only objective witness,” said Gurney.
That last phrase prompted some puzzled looks.
He waited to see if anyone would catch on.
The cadet in the first row who had asked for repeated readings was the first to speak up. “Was ‘the only objective witness’ a transit surveillance video?”
Gurney gave her an appreciative nod. “The video established the position of the victim at the moment he was hit. During autopsy a reconstruction of the path of the bullet indicated the probable position of the shooter relative to the victim’s entry wound. Transferring that trajectory back to the video revealed a young man in the crowd taking a small pistol-shaped object from his pocket and pointing it toward the victim. Immediately after the moment of impact, he returned the object to his pocket and walked quickly toward the platform exit, where he—”
The angry cadet interrupted. “You’re telling us that none of the witnesses could hear what direction the shot came from?”
“The brain’s greatest strength, the ability to create instant connections, can be its greatest weakness. All the witnesses thought they saw a gun in the hand of at least one of the participants in the confrontation. A moment later they heard a gunshot. They all connected the sound with the visual image. Their brains discounted the directional component of their hearing in favor of visual logic: you see what you think is a gun, you hear a gunshot, your brain automatically puts them together. And your brain is almost always right.”
The bodybuilder was frowning. “But didn’t you say that neither one of them actually had a gun? So . . . the witnesses who claimed they saw one . . . what did they actually see?”
“A cell phone.”
That led to the longest silence so far—no doubt reminding many in the room of the tragic news stories involving that very mistake being made by stressed police officers.
The farm-boy cadet looked appalled. “So, the witnesses were wrong about everything?”
“It happens,” said Gurney.
A cadet directly in front of him raised his hand. “What’s the bottom line on this? It sounds like we shouldn’t even bother taking eyewitness statements.”
“Statements can be helpful,” said Gurney. “But the bottom line is caution. Keep an open mind. Remember that eyewitnesses can be very credible—and very inaccurate. And the problem carries over into courtrooms. Eyewitness testimony, which is actually the least reliable evidence, is the most persuasive. And it’s not because anyone is lying. The fact is, people often see things that aren’t really there.”
The angry cadet piped up. “Mental cases, maybe. Idiots who don’t pay attention. Trust me—when I look at something, I see what’s there.”
“I’m glad to hear that,” said Gurney with a pleasant smile. “It’s a perfect introduction to a pair of animations I think you’ll enjoy.” He opened a laptop computer on the podium and switched on the projector.
“The first ten-second animation you’ll see shows a large blue ball bouncing across the screen. There are some numbers printed on the ball. The other animation will show a large green ball, also with numbers on it. Apart from those numbers, the balls may have other differences between them in size, surface texture, and the way they bounce. Pay close attention and see how many differences you’re able to notice.”
Gurney tapped a key on the laptop, and what looked like a large beach ball bounced slowly across the screen behind him.
“Next, the green ball,” said Gurney, again tapping a key.
After it completed its passage across the screen, he switched off the projector.
“Okay, now tell me about the differences you noticed. I want to hear from everyone, but first from you,” said Gurney, turning toward his challenger.
There was a new uncertainty in his eyes. “Some of the numbers on the balls might have been different.”
Gurney nodded encouragingly. “Anything else?”
“The green one bounced a little faster than the blue one.”
“What else?”
The angry cadet responded with a shrug.
“So,” persisted Gurney, “different numbers, different bouncing speeds. Any other differences between the balls?”
“Obviously, the colors.”
Gurney then addressed the same question to the other cadets and listened to their descriptions of the differences in the speeds, sizes, surface textures, and numbers on each ball.
He waited until they’d all offered their opinions.
“Now, I have an apology to make. I misled you—in the same way that I was misled when I was first shown the animation of the bouncing ball.”
He paused again. “Did anyone notice what I just said?”
At first no one responded. Then the bodybuilder’s eyes widened. “You said animation this time. Not animations.”
“Correct.”
In response to the perplexed faces around the room, he continued, “There was only one bouncing ball. I showed you the same animation twice.”
His challenger with the sour mouth said, “But you obviously messed with the color to make the ball look blue the first time and green the second. So it doesn’t prove anything, except that you lied.”
The room got very quiet. Gurney smiled. “I messed with your brain, not the color. The color of the animated ball occupies the midpoint between blue and green on the color spectrum. Because of what I told you at the beginning, you expected the first ball to be blue and the second to be green. And because that’s what you expected, you saw it the first time as bluer than it was and the next time as greener than it was. If you took a polygraph test on the two colors you saw, you would have passed. You would have been telling the truth, as you saw it. That’s my point. Witnesses may be telling you the truth about what they saw, but that truth may exist only in their own heads. And a polygraph test only measures the honesty of someone’s recollection, not its accuracy.”
A raspy-voiced question came from the back of the room. “So what kind of evidence are we supposed to trust?”
“DNA. Fingerprints. Credit card and bank records. Phone records, especially those with GPS data. Emails, texts, and social media posts can also be useful in establishing motives, relationships, and states of mind.”
“How about surveillance videos?” someone asked.
“Absolutely,” said Gurney. “The fact is, I’d take one high-quality video over a dozen eyewitness reports anytime. Cameras are basically pure optic nerves. They have no prejudices, no imagination, no desire to fill in the blanks. Unlike humans, they only see what’s actually there. But be careful when you view those videos.”
“Careful of what?” someone else asked.
“Careful that your own brain doesn’t screw up what the camera got right.”