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  • D.M. (law student)

The Unreliability of Eyewitness Testimony: The Lochte Affair – a student blog

Confessions and eye witness testimonies are two of the most credible pieces of evidence in proving the element of crime in a courtroom. When deciding on a defendant’s guilt or innocence, jurors have to rely on eye witness identification in order to complete the missing information. But how accurate are eye witness testimonies? More importantly, how much weight should the courts give to eye witness testimonies in court proceedings?

The Lochte affair, that happened during the Rio De Janerio summer Olympics in 2016, proved yet again that eye witness testimonies can be both inconsistent and biased. Ryan Lochte, and fellow U.S. swimmers—Gunnar Bentz, Jack Cogner, and Jimmy Feigen—stated that after a night out they frequented a gas station where they were robbed at gunpoint. At the minimum, there appear to be five different versions to this story. Granted the human brain is no video recording device.

According to the Atlantic:

"Lochte told reporters that he and three teammates were robbed at gunpoint in Rio de Janeiro by men dressed as police officers, but their account seems to be untrue—or at least not as simple as that. Officers in Brazil found security tape of the moment when Lochte and swimmers Gunnar Bentz, Jack Conger, and James Feigen stopped at a gas station, and instead of a robbery, they said the three swimmers vandalized a bathroom. When workers at the station confronted the group and asked them to pay for the damages, the swimmers became belligerent, and two security officers intervened and drew their weapons."

Some believe that the affair is evidence of lying and debauchery by Lochte et al. However, and alternate hypothesis is that the veracity of the events can be influenced by false memories, external undue influence, and personal biases. Elizabeth F. Loftus, a memory researcher from University of California, purports that the very act of remembering is “more akin to putting puzzle pieces together than retrieving a video recording.” Debunking the popular misconceptions regarding memory, Loftus argues that the effectiveness of identification accounts is based on two factors: 1) circumstances and 2) the lack of distinctive characteristics.

In Lochte’s case, the presence of a gun, may have altered the circumstances on both sides. The athletes and the locals/employees alike, were under heightened stress and utter confusion. An eye witness, who acted as a translator, said that the athletes offered to pay for the damages that they had caused. The store owner vehemently denied the claims, stating that the athletes left without paying. Subsequently, the lack of unique characteristics such as height, weight, and demeanor may have only added to the difficult of identifying the culprit. Since a good part of the altercations took place outside of the video camera’s range, camera angles could not definitively substantiate either account.

In trying to balance the inaccuracy of eye witness identification with the importance of eye witnesses in the judicial process, courts should give considerably less evidential weight to accounts that are corroborated by eye witnesses prone to identification flaws, such as the two above.

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The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.

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