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Eyewitness testimony is the most reliable kind of evidence - or is it?

A recent article in the Washington Post - about magic, of all things - raises a legitimate question about eyewitness testimony. Basically, it calls into question the reliability of things we see, and are quite certain about - and just aren't true.

The article is titled: "This magician got into Oxford after doing coin tricks during the admissions interview." It's a fun article to read online, as it includes short videos about infallibility about the things we are sure we see with our own eyes.

The eyes don't lie -- or do they?

The videos show a series of "tricks" by a young magician. First he breaks a crayon, and then he seems to magically reassemble it. Second, he does something unmagical with the crayon - he eats it.

But the kicker is the third video, in which the magician appears to make a crayon disappear. Only - he never really showed the crayon. Our brains simply told us he had a crayon in his hand. Because we 'knew' there was a crayon there.

The lesson is plain - our eyes and our brains can be misled. That is the charm of magic tricks. But what does it mean about criminal trials?

Consider how much weight we give law enforcement officers and others in criminal trials. Law enforcement officers need to make quick decisions on the street, and they are rewarded when they guess right. The courts give the testimony of police and other law enforcement officers a lot of leeway. If the police say they saw drugs, or a weapon, or some other compelling justification for a search, it is hard for the defense to claim otherwise.

People are sometimes just wrong

But it is a good idea, and a linchpin to effective criminal defense, to remember that people can be wrong when they make these quick decisions. Guns turn out to be vape smoking device, as happened recently in Los Angeles. Clear evidence of drugs turns out to be talcum powder, or herbs from the grocery section.

A good attorney is always alert to these "magical" moments when one person's certainty is simply confusion. We see this in DUI cases, in false identification, and many other criminal matters. We respect the good intentions of witnesses - but we remind everyone that sometimes we are simply wrong in what we claim to have seen. And when an innocent person's future hangs on that false impression, we object.

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