DNA evidence vs. Eyewitness proof

SOURCE: Patricia-Ann T. Prodigalidad (2004). Common Justifications For Reliance on Eyewitness Identification. Assimilating DNA Testing into the Philippine Criminal Justice System: Exorcising the Ghost of the Innocent Convict. 931 Philippine Law Journal. Vol 79.

To better understand the minimal role DNA evidence has so far played in Philippine rape prosecutions, it is important to review the seemingly standard justifications proffered by the courts in relying upon eyewitness identification, whether by the rape victim or by a bystander.

The following settled principles should govern trial courts’ decision-making in rape prosecutions:

[1] An accusation of rape can be made with facility – if it is hard to prove, it is even more difficult for the accused to disprove;
[2] In view of the intrinsic nature of the crime in which only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and
[3] The evidence for the prosecution must stand or fall on its own merits and not draw strength merely from the weakness of that for the defense.

Given these principles, one would expect that rape cases are tried with difficulty, especially where the only evidence available is the complainant’s testimony. Unfortunately, most trial courts pay lip service to these principles and then dilute their effectiveness by invoking common justifications validated by no less than the Supreme Court.

The first such justification posits that evidence is unavoidably limited, by nature, in rape cases. Thus:

It is well-entrenched in jurisprudence that the lone testimony of the victim in a prosecution for rape, if credible, is sufficient to sustain a verdict of conviction. The rationale is that, owing to the nature of the offense, the only evidence that can be adduced to establish the guilt of the accused is usually only the offended party’s testimony.

The second justification posits that no woman would publicly admit to being raped if it were not true, and by implication presumes that the typical Filipina woman is innocent, morally upright, and prudishly conservative. People v. Gonzales clearly articulates this mindset:

No woman, especially one so young, would concoct a tale of defloration; allow the examination of her private parts; and undergo the expense, the trouble and the inconvenience – not to mention the trauma of a public trial – if she is not motivated solely by the desire to have the culprit apprehended and punished. The embarrassment or stigma she suffers in allowing an examination of her private parts and in testifying in open court on the painfully intimate details of her ravishment effectively rules out the possibility of a false accusation of rape. For this reason, the Court has consistently applied the well-settled rule that when a woman – more so if she is a minor – says she has been raped, she says in effect all that is necessary to prove that rape was committed.

This second justification’s reasoning is simply too idealistic. It fails to consider that certain economic realities may impel a needy and unscrupulous woman to falsely accuse someone of rape, a non-bailable offense, and then drop the charges before any case is actually filed in court for a substantial fee. More importantly, it demonstrates the judicial system’s naiveté or, worse, its deliberate stereotyping of the Filipino woman as a barrio lass and the disregard of her gradual transformation into the modern and less inhibited Filipina.

The first justification, however, remains more dangerous because it effectively equates positive eyewitness identification with the accused’s guilt. This myopic view that has spawned a criminal justice system extremely focused and excessively dependent on eyewitness accounts, in disregard of more reliable forensic evidence.

Further securing eyewitness identification in its position as the prime evidence in a rape trial are:

[1] The uniform rejection by courts of alibi as a “weak defense” that would “almost invariably be… ignored in the face of a positive identification made by an eyewitness” and
[2] The uniform pronouncement that “categorical and consistent positive identification, absent any showing of ill motive… prevails over denial… [which defense] [u]nless substantiated by clear and convincing proof, … is considered negative, self-serving and undeserving of any weight in law.”

The problems with these doctrinal declarations arise from two realities. First, an innocent accused of a crime often will have no other defense but an alibi. He has no affirmative defense and, thus, invokes none. Moreover, the ordinary man does not, and would not be expected to, live his life in a manner that ensures he has an alibi that can be “proven clearly and convincingly.” Indeed, if an accused lives alone and sleeps at home at night, what other evidence could he present be other than his “self-serving” testimony?

Second, these rules effectively presume that an erroneous identification arises only if the eyewitness has some ill motive against the accused. This presumption was proven false as early as 1902 by Professor von Liszt’s “class experiment” and has since been reaffirmed every decade. Indeed, American research “indicates that a substantial number of errors resulting in the conviction of innocent persons emanate from what can be termed good-faith eyewitness identification.”

Three major categories have been found to contribute to good-faith “misidentification,” in addition to the innate fallibility of human perception and memory. These are:

First, there are psychological factors emanating from the disturbed emotional state (or even shock) of the witness or bystander. Such trauma may exacerbate an individual’s already imperfect powers of perception, the difficulty of retaining information during stressful situations, and the inability to retrieve such information from the memory’s storage system. Second, there are systemic factors related to the various functions of the criminal justice system. These include procedures used for mug shot and lineup identifications and the suggestions that may be introduced during investigation in the time leading up to and during identification. Third, there are flaws in eyewitness identification stemming from societal and cultural expectations and difficulties with cross-racial identification, which may introduce confusion even where no prejudice exists.

In the 1995 murder case People v. Teehankee, the Court already expressly recognized the unreliability of eyewitness identification and the relative strength and inherent authoritativeness of the various forms of scientific evidence:

Eyewitness identification constitutes vital evidence and, in most cases, decisive of the success or failure of the prosecution. Yet, while eyewitness identification is significant, it is not as accurate and authoritative as the scientific forms of identification evidence such as the fingerprint or DNA testing. Some authors even describe eyewitness evidence as “inherently suspect.” The causes of misidentification are known, thus:

Identification testimony has at least three components. First, witnessing a crime, whether as a victim or a bystander, involves perception of an event actually occurring. Second, the witness must memorize details of the event. Third, the witness must be able to recall and communicate accurately. Dangers of unreliability in eyewitness testimony arise at each of these three stages, for whenever people attempt to acquire, retain, and retrieve information accurately, they are limited by normal human fallibilities and suggestive influences.The “inherently suspect” nature of eyewitness identification was also the basis for the Supreme Court’s reversal of a murder conviction in People v. Limpanog. However, again, these doctrines apparently escape the Court’s collective consciousness when a rape case is reviewed. In fact, rape convictions based principally, or even solely, on eyewitness identification are almost always affirmed on appeal.

In affirming these convictions, the Supreme Court seeks refuge in their limited review jurisdiction and their inability to assess witness credibility firsthand. Thus, the Supreme Court stated:

In rape cases the issue, more often than not, is the credibility of the victim. Rape is generally unwitnessed and very often the victim is left to testify for herself. Her testimony is most vital and must be received with the utmost caution. When a rape victim's testimony is straightforward, unflawed by any material or significant inconsistency, then it deserves full faith and credit and cannot be discarded. Once found credible, her lone testimony is sufficient to sustain a conviction.

In assessing the credibility of witnesses, we are guided by the following doctrinal principles:

[1] The reviewing court will not disturb the findings of the lower court unless there is a showing that it had overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that could affect the results of the case;
[2] The findings of the trial court respecting the credibility of witnesses are entitled to great respect and even finality as it had the opportunity to examine their demeanor when they testified on the witness stand; and
[3] A witness who testified in clear, positive, and convincing manner and remained consistent on cross-examination is a credible witness.

The reliance of the Court on its limited authority in reviewing, and almost invariably affirming, the trial court’s assessment of the credibility of an eyewitness conveys a policy of non-interference, if not deference, in cases where eyewitness identification is present. A similar message is effectively expressed by its refusal to consider post-conviction motions for DNA testing in such cases. As the denials are made without any discussion of the available biological evidence and its condition, these decisions seem to signal a preeminence of eyewitness testimony.

In Andal v. People, all the accused were convicted of rape and sentenced to death on the basis of bystander eyewitness identification. As a last attempt to prove their innocence, the accused moved for DNA testing. Though implicitly acknowledging that DNA evidence would be more authoritative than eyewitness identification, the Supreme Court cursorily denied the motion simply stating that this evidence is “unnecessary” or “forgotten evidence too late to [be] consider[ed]”:

The issue of “DNA tests” as a more accurate and authoritative means of identification than eyewitness identification need not be belabored. The accused were all properly and duly identified by the prosecution's principal witness, Olimpio Corrales, a brother in law of accused Jerry and Ricardo Andal. DNA testing proposed by petitioners to have an objective and scientific basis of identification of “semen samples to compare with those taken from the vagina of the victim” are thus unnecessary or are forgotten evidence too late to consider now.

Similarly, in the subsequent decision People v. Marquez, an accused convicted of robbery with homicide and sentenced to reclusion perpetua argued on appeal that the use of DNA testing would prove his innocence. The Supreme Court dispensed with the argument in one curt sentence: “[T]he fact, however, is that there was no DNA test to prove accused-appellant’s innocence.” Ironically, however, footnote 22 attached to that sentence added, “In the United States, DNA tests have been used to convict perpetrators of crime, as well as exonerate innocent individuals.”

Considering the severe penalties imposed upon the accused in these cases, nothing other than time would have been lost had the Court ordered post-conviction DNA testing where biological evidence was available and well preserved. Admittedly, the Supreme Court may have entertained the idea that the integrity of the biological specimen samples taken from the crime scene or from the rape victim’s body may have been compromised. However, the Court denied a post-conviction motion even where there was an “unquestionably well-preserved” biological specimen in the form of a child born as a result of the rape.

In People v. Penaso, the fifteen-year-old victim became pregnant allegedly due to her rape. The accused invoked the defense of alibi and further denied having any sexual relations with the child victim. Based principally on the testimony of the child victim, the trial court convicted the accused. On appeal before the Supreme Court, the accused moved for DNA and blood testing. The motion was denied and found to be “futile” because, in the words of Andal, the accused having been positively identified, the DNA evidence was “unnecessary” or “forgotten evidence too late to [be] consider[ed] now.”

A DNA or even a blood test would have been a logical step in ascertaining the veracity of the accused and the victim’s conflicting testimonies. DNA testing of the child’s possible paternity would have been conclusive proof of either guilt or innocence. Despite the clear value of such testing in that case, the Court instead chose to capitalize on the motion’s tardiness rather than spend an additional two weeks on DNA testing and entertain the possibility that a wrongfully convicted innocent might be set free.

One wonders why neither the police nor the prosecution required that DNA or even blood testing be conducted to ascertain the baby’s paternity. Perhaps, the prosecuting lawyers and the trial court felt there was no need because the minor victim had categorically identified the accused, the investigators. Again, given that the accused would live out his days in prison, DNA or even blood testing would have been a small price to pay for certainty.

Regrettably the Supreme Court does not share the author’s outlook because Penaso binds the judiciary, and perhaps even the entire criminal justice system, to a clear mindset regarding just how much – or rather how little – significance should be placed on DNA evidence as against eyewitness identification.

SOURCE: Patricia-Ann T. Prodigalidad (2004). Common Justifications For Reliance on Eyewitness Identification. Assimilating DNA Testing into the Philippine Criminal Justice System: Exorcising the Ghost of the Innocent Convict. 931 Philippine Law Journal. Vol 79.