jamesAn Interview with Attorney James Oliver

by Gila Hayes

In our current Attorney Question column, Network Advisory board member Jim Fleming asked about the accuracy of statements given by witnesses to violent events. A response from attorney Jim Oliver led to an interesting discussion about the fragility of memory and inaccuracies in eyewitness testimony. I’m sharing that conversation, because I think readers will find it as informative as I did.

Jim Oliver has been a Network affiliated attorney since 2010. After 20 years as a criminal defense practitioner, Jim has stepped back to serve in an “of counsel” capacity at the Law Offices of Durflinger Oliver & Associates, Tacoma, WA, in order to spend more time with his family, and participate in legal assistance projects in developing nations including the Republic of Palau as well as traveling in Europe.

We switch now to a Q and A format to share the experiences of defense attorney Jim Oliver in his own words.

eJournal: Thank you for talking to me about the accuracy of eyewitness testimony. During your years defending clients after use of force incidents, how accurate were the memories of people who had used force?

Oliver: It is hard to know, because everybody has a different perspective. In every case I’ve worked, each person has perceived and recounted what happened to them differently. I would say overall, though, the people I defended after use of force situations recounted the major points pretty accurately. Their stories had been documented almost immediately after the incident, typically by experienced detectives or officers who had written lots of reports, who were pretty good about getting information out of witnesses. My general sense, based on what other witnesses claimed to have viewed at the time, is that the guys I’ve defended have generally been pretty accurate in recounting what happened.

eJournal: Wait a minute–you said police debriefed your clients almost immediately after the incident. We recommend that members wait 48-72 hours before making a statement to police, and then to do so only with counsel present. Have most of your clients not been afforded that consideration?

Oliver: No, I have never had a defendant as a client who has ever been afforded time after an incident to collect themselves. I have never seen that outside of my cases, either.

eJournal: Is it because these defendants were not represented by counsel before they started speaking to police?

Oliver: I think that is primarily the reason. I have represented a number of people about whom the police were initially on the fence whether it was a self-defense shooting or whether they were in the wrong when they shot. Now, obviously, if the person of interest is under arrest, the cops do a great job of Mirandizing them and advising them of their right to have an attorney.

It is really rare that somebody actually exercises that right, especially in a self-defense scenario where they think–reasonably or otherwise–that their best course of action is to work with the police. A lot of times, that works out just fine and when it does not, that’s when people end up getting charged with crimes and then I end up getting involved on the defense side. Overall, it is kind of rare that people “lawyer up” after a shooting.

eJournal: That part of the story should be different when a Network member needs representation, because we pay for an attorney to attend to the member’s needs as soon as possible after an incident. How do memories of the person who used force align to or disagree with testimony from witnesses?

Oliver: When I am trying to assess the accuracy of statements from the sheepdog–the guy with the gun who a lot of times is doing the right thing–I find that the things he focuses on are completely different than the witnesses, so, yes, they will be different. Some guys are more sophisticated and have better training and more real-world experience in identifying threats and see things differently than a suburban housewife who has never been in a fight, much less witnessed a shooting. The lay witnesses will most often be focused on the weapon to the exclusion of other important pieces of information. There are always going to be differences and there will be things that nobody is very clear about, at least not to anybody’s satisfaction. It’s similar to what has been called the “fog of war.”

eJournal: While we who study use of force understand that the totality includes actions leading up to and necessitating use of force in self defense, bystanders may only remember seeing a gun fired. I worry that judges and juries, also lacking any self-defense training, become mistrustful if the defender’s statement differs radically from that of the attacker and eyewitnesses. How do you reconcile differences between statements?

Oliver: Realistically, there are always going to be discrepancies, so you have got to know your facts! Witness A will see something differently and recount it differently than Witness B. If you know your facts, then you have a plausible explanation for those differences. You have got to have the facts of your case absolutely down cold and know them better than anyone else, otherwise, you will not be able to see the discrepancies.

Then there are going to be times that you just throw your hands up, shrug and say, “I have no idea why this person got these facts right and this person got them so wrong.” In situations in which witnesses get major things wrong that damage your case, you have to acknowledge it and then move on. That is just part of a use of force incident; that is just part of litigation.

eJournal: What is the cause of differences or inaccuracies in eyewitness testimony?

Oliver: There are a number of things that can muck up recollections during the three phases of memory. Those phases are: acquisition–while you are actually seeing something; retention–when you register it after you’ve seen it; and retrieval–later, when you remember it.

Stress affects memory horribly! Everybody deals with stress differently. Some people are high-level professionals for whom getting shot at is just another day at the office. For other people, witnessing a shooting is very stressful and they are not going to see many of the details that the experienced force professional would.

Cross-cultural issues are another factor affecting memory. We are better able to identify people from our own racial group. For example, when witnessing a situation in which we have to identify persons of different national origin, African Americans find it easier to identify other African-Americans; whites find it easier to identify other whites.

eJournal: How big might discrepancies be between witness recollections? In your career as a defense attorney have witnesses commonly given entirely opposite statements?

Oliver: It is rare when witnesses completely disagree with every element of what another witness has seen. Usually, there is a pretty big overlap; sometimes there are a few significant areas of disagreement.

When looking at the accuracy of what an eyewitness remembers there are a lot of different things you are trying to assess. I have used Dr. Mark Reinitz, a professor at the University of Puget Sound, as an expert. Dr. Reinitz focuses on memory and recall.

In one case, we had one witness say that the driver of a car clearly was a dark-skinned African-American male. We had another witness who said he was a light-skinned person, probably Samoan. The witness who identified the driver as a light-skinned Samoan, told me, “There is no way that was a black person,” but the other witness said, “No! There is no way that was a light-skinned Samoan.” That was the only time I have ever seen two witnesses really diverge on such a basic fact.

Usually, there is a fair amount of overlap and consistent stories because people have seen the same thing.

eJournal: Did Dr. Reinitz testify at trial? What was he allowed to testify about?

Oliver: Yes, Dr. Reinitz did get on the stand, but we were not allowed to get into the issue of cross-cultural misidentification. The judge thought that issue would be more confusing for the jury than if we did not bring it up, so Dr. Reinitz testified about memory. He testified that every time we revisit a memory, we change that memory a little bit and it becomes a little bit less accurate. He also testified about how memory can be corrupted and how perceptions can be affected by stress, lack of sleep, use of alcohol or marijuana, and by our own internal biases. There are all kinds of things that keep us from being as accurate as we might be otherwise.

The case, which we lost by the way, involved a drive-by shooting at a mall in Lakewood, WA. We had a number of witnesses who were interviewed by police before the case went cold. Later, the State interviewed the witnesses again, then I interviewed them and then, they testified in the trial. Dr. Reinitz’s testimony went to the fact that these witnesses’ stories had changed over time. He testified that their memories were probably best right after the shooting, before the memories could be corrupted. The statements they gave right after the shooting probably held more probative value then what they came in and testified about in court.

That was a tough sell with the jurors. They saw the witness sitting there, looking confident and recounting what happened. They were so believable, but confidence can be misleading because people can be confident but still be absolutely wrong.

eJournal: Did any of those witnesses have loyalties or affiliations with the defendant or the victim?

Oliver: None of the witnesses really had a dog in the fight. One guy just happened to be driving by, but one witness was married to a firefighter and had a lot of police and firefighter friends. At the time of the shooting, she called 911 and reported that she saw a black male do a drive-by shooting, but by the time trial rolled around, that morphed into having seen a light-skinned Mexican American–which was my client’s description. I think she may have been very suggestible. I personally like the detective who interviewed her, but I also think that he often seeds a little more information to witnesses than he probably should.
Witnesses often glom on to details given by the police officer, and in this case, I think that when the detective talked to her, he may have said, “We caught a guy in the car with the gun, but he is not a black guy. He is a Mexican guy.” Although her 911 call identified a black guy, when she testified at trial it not only became a Mexican guy, but she testified it was the Mexican guy sitting there at the table.

eJournal: Did you attack how much she had changed her statement?

Oliver: Yeah, but at the end of the day, the jury could not get past the fact that my client was rolling around in the car identified at the time of the shooting and that the gun used in the shooting was in the glovebox.

eJournal: I am more interested in the firefighter’s wife’s changing testimony. In your response to the attorney question column published a few pages later in this journal, you provided a research link in which one cause of eyewitness error is identified as the way police interview witnesses. It suggests that police may not be able to frame questions from a completely neutral position. Few people have witnessed shootings, so they’re stressed and then police question them–another new and stressful experience for many. Is it any wonder if their witness statements are unreliable? That echoes the firefighter’s wife’s changing account.

Oliver: I have friends who are cops and I routinely use retired detectives to do investigative work, so I know that police have got a tough job. Humans have confirmation bias and, because they are human, so do the law-enforcement officers. They get a certain set of facts that are just like situations they have seen before, so they feel a certain confidence in their theory, probably more than they should. Then officers go and they talk to the witnesses.

I have seen video tapes and transcripts of interviews where the officers are asking clearly leading questions. I do not think that they are corrupt or doing anything that they think is wrong. I think they have a pretty solid idea about what they think happened and are looking for answers to support that.

Some witnesses really, really want to be liked. It does not matter to whom they are talking, they want to be liked. I see officers asking questions directed toward a certain answer in the videos and transcripts. The witness really wants to be liked and wants to help police solve the crime, so they give some information that may not be the most accurate. Now, that becomes part of the record.

By the time these things roll over to trial a year later, people have forgotten a lot of details so if the mistake is in writing and they use their earlier statements to refresh their recollections, they really believe they remember things that probably did not happen. That all starts with poor choices during questioning by police officers and then it takes on a life of its own.

eJournal: The research suggests another human characteristic: filling in the unknown when what we see does not make sense. If the witness has never been present during a violent act, so what they see and hear doesn’t make sense. It is well-documented that people confabulate facts to try to make sense of the senseless.

Oliver: That is true: humans want to make sense of things. That’s why we see faces in pictures of rock formations on Mars. We just really want to make sense of things. When that happens with witnesses, you really have to know the case facts. You have to know what each witness is going to say so when you see something in part of one witness statement that just does not ring true against the backdrop of all the other facts, you can turn to your other witness statements and say, “Well, Witnesses A, B, and C all said it was a pipe, but now this guy says it was a pistol. Based on what the other witnesses saw, obviously he was wrong, it was not a pistol, it was a pipe.” You try to use other witnesses to attack credibility at least on a particular point with which you disagree.

eJournal: What do you do if your client’s memories are inaccurate or untruthful?

Oliver: Because that happens fairly frequently, the first thing we do in my office is summarize what is in the police report–which officers created the reports, the facts of the report, the witnesses identified by the police and what each of those witnesses is going to provide factually. At the end of all that, you have a pretty good idea of what the facts are and then it is time to interview your client and figure out what happened.

I try not to talk to the witness about anything too terribly in-depth until I have gotten the police report. Clients are stressed out and so suggestible! They have got a lot riding on this. It is scary and they do not know what is going to happen, so they feel overwhelmed. The defense attorney has to be very careful not to make any suggestions, intentionally or otherwise, that might cause the client to alter their recounting of the event.

I get to know the events, I get to know the facts, or at least what people are going to say or testify to, then I talk to the client and I figure out, “OK, this is what is going on. Now let’s hear your side of the story.” Some clients are incredibly honest and articulate, with a good command of the facts. They can recount things accurately and convincingly. Sometimes you have to reality check your client.

Other clients, even when I’m pretty confident they were telling the truth, have just seemed shady and I thought, “My goodness, I do not want you within a mile of the witness stand!” If I could get the story out of them, those clients still helped me know what was going on so I could develop the case. Some clients were raised to believe that you have to lie and if you have done something wrong you have got to figure out how to get away with it. If I have a good reason to believe someone is not being honest, I could not put them on the stand even if I wanted to. I cannot put somebody on the stand who I know is going to lie.

Once you get all that out of the way, you start working with the client in a way that does not inject anything that might cause the client to alter their story away from what really happened.

eJournal: I’m more concerned about someone for whom violence is so foreign that they pretty much can’t give a cogent statement about something they truly cannot understand. If what they are telling you simply cannot be accurate, are there techniques you can use that may help their recall?

Oliver: The most helpful thing for me is a statement taken or an observation made close in time to the event. To help people remember, I have used all kinds of methods ranging from reviewing Facebook posts, reading text messages, looking at calls that were made that day and anything else that might trigger additional recollection.

Seemingly unrelated memories sometimes bring up other recollections. Memory is funny: it’s like we put memories in drawers in our heads. Something that seems unrelated might even cause you to remember to open a particular drawer. For instance, somebody may not have much of a recollection about a day, but if they will go back and read their Facebook posts they might say, “Oh, my, I had forgotten that was my friend’s birthday. That’s right! We did go out that night and we did do or see this.” Spending a bunch of time talking about things that may seem completely irrelevant is tedious but can help people remember things that they may have forgotten or did not realize were important.

Sometimes it is little things like which way a door opened, or whether a car window was down. I had a case where my client allegedly threw a gun out the window while he was eluding police. In talking to the car’s owner, I learned that there were service records showing that the motor that moves the front driver side window was defective, so a mechanic had put in wedges to keep the window from falling down. That window could not be opened.

That detail was something that the guy who was borrowing the car would not have known about but talking to him turned me onto the right person and when I talked to the owner, she remembered that she’d had this repair done the year before. It was a weird story, but it illustrates the value of getting as much information as possible. Even seemingly irrelevant details can help witnesses recall other relevant and important pieces of information.

eJournal: Our belief has long been that memories accrete after two to three sleep cycles. Wouldn’t that make witness statements given 48 to 72 hours after an event more reliable than those given immediately afterwards?

Oliver: I know from my own studies, too, that memories are locked in place during REM sleep cycles. In contrast, my experience from a bunch of trials during the last 20 years is that people are much, much more accurate immediately after an event. Small but important details get lost when people are processing information after a traumatic event. Here’s an example of a statement about a traumatic event. The witness might say, “I just watched somebody hold a gun out and shoot another man in the chest.” That statement gives the high points, but not the little things that may really matter. Who else was around? Were there cars around? Where were people positioned? How was the victim standing? How was the shooter standing? Where were people’s hands? Those little details, against the backdrop of the big event–which is somebody shooting and somebody getting shot–make all the difference.

My experience is that those little details do not get locked into memory with time and they are details which can be very important and are quickly lost. Although I do not have any science to base it on, that is my experience. I do know that freshness of the memory is critical to an accurate witness statement. My experience is that interviews conducted immediately after an incident are much more accurate than interviews that are conducted later. I have always been much more confident in witness interviews that were conducted immediately after an event.

eJournal: When you have had to work with the testimony of witnesses who gave statements long after the event, was much credence given to the late statements? I hate to suggest this but it just seems that late statements are more likely to be improperly influenced. How often do you have to deal with witness statements by friends, family members or people with close affiliations to the opposing side who aren’t reliable because of such strong loyalties?

Oliver: [chuckling] Yeah, it happens. Earlier this year we got a favorable verdict for a client charged with first-degree assault. A woman with a wound channel starting on the inside of her left thigh, running from just above her knee diagonally toward the back of her upper leg, ending high up toward her buttocks said my client shot her. The wound angle suggested that the shot came from below the knee and angled up.

A doctor who works at Joint Base Lewis-McChord, a former Ranger, a really bright guy who has probably worked on thousands of gunshot wounds, testified that the wound channel indicated the direction of the bullet’s travel. That was really great for us–because the allegation was that my client was standing face-to-face with this gal and that he shot her in the leg. The wound channel did not match the allegation.

My client’s story was, “No, she pulled the gun on me. I grabbed the barrel of the gun and tried to jerk it out of her hand. That didn’t work, so I turned the gun sideways.” He said that she lifted her leg, either for balance or to knee him, and with her knee raised, the gun went off with the barrel pointing down. That perfectly explained the wound channel. We reenacted that for the jury and they liked it, too. When you get witnesses that say weird things, you have to be ready to point to the evidence undercuts their position.

In addition, literally every cop who testified in that case, told a story that was significantly different than what was in the police report and added details that were not in the reports. The first time around, the trial was almost a year after the event. In that trial, one cop testified, “I heard the defendant say if we came to the apartment, he was going to kill us all and he was threatening us in the doorway.” That statement did not appear in any police report.

If my client had threatened to kill a cop, that would have been another crime in and of itself, in addition to the first-degree assault charges for the shooting! The cop who was saying that is about my age, he’s about 52. He was in the stairwell with a 28-year-old cop and a 35-year-old cop and the old guy was the only one who heard these threats.

At that trial, we had a lot of testimony that just really did not make sense, but I really wanted the jury to hear some of what that cop said: that he was in the stairwell, he did not hear any gunshots, he did not hear any fighting and he did not see the alleged victim walk out of the place. We got that information out, but then we had to shoot down the idea that the cop heard those threats.

We tried that case twice, because the jury was hung six to six on the first go around. The judge told the prosecutor, “I think this is going to hang again. You guys should work something out,” so I went to the prosecutor and I made a couple of offers and he said, “No, I think my case is actually getting stronger.” I am sure he thought he could coach his police officers to do a more effective job the next go around. Well, it did not work out that way.

At the next trial, that older cop testified differently again. I cross-examined him and I asked, “You did not hear any threats or anything?” and he said, “I do not remember hearing anything from the apartment.” Two months before he had testified that my client had threatened to kill any cops that came in the door, and then the next round, he is saying, “I do not remember hearing anything.”

I think the prosecutor talked to him and said, “Hey, man, you lost some credibility when you said you heard something that did not make it into your report.” That prosecutor had just been moved up to prosecuting felonies from prosecuting misdemeanors and I think that he was still figuring things out. I confronted him after the trial and said, “Whenever I see that many cops trotting out things that they did not disclose in their police reports, it looks like maybe they are being improperly coached,” and he said, “Well, they probably are saying what they think I want to hear, but I am not telling them to say those things.”

I have only had that happen a few times, but that’s a pretty recent case so comes quickly to mind. The other time it happened was about 15 years ago and I have not seen that particular prosecutor do anything weird since then.

eJournal: Is there any solution to problems with eyewitness testimony that is given a year or sometimes several years after an incident?

Oliver: It is really important to get high-quality interviews that are then reduced to a written form to accurately recount what witnesses said. Later on, the witnesses are going to use that writing to refresh their recollections about what happened at that time.

eJournal: I’ve known people who felt they never got the chance to give police a full statement–that they were cursorily questioned, then booked and charged. How does someone in that situation bring a full set of the facts into the record?

Oliver: After the interview with the police, you should write out everything you can remember, starting how ever long before the event that you think is important. Include all kinds of details. Where did you eat? What did you smell? What were you feeling? What was the weather? Write down anything that you can think of. Put it in writing. It is a rare person who actually, on their own, documents things that happen to them. Most people rely on the police to do it.

eJournal: Will a statement written down privately be judged as less reliable than a statement given to police? How can equal value be assigned to those later recollections?

Oliver: Ideally, what should happen is that the witness writes down a bunch of details, and as a lawyer, I can ask police to incorporate that material into the supplemental report, so you have a stamp of authority of the police. That makes the writing a lot more credible.

I also find that people who have written things down immediately after the incident, who have tried to recall everything that they could about the scenario, do a better job remembering details later on. They also have a better means of refreshing the recollection through the writing in their own words to capture what has happened to them. If I ask about a detail during their trial and they say they don’t remember, I can say, “Did you make notes or write down anything near to the time of the incident that might refresh your recollection? Would you like to read that to refresh your recollection?”

I would have the exhibit marked, hand it to the witness and ask them to read it silently and then ask, “Does that help to refresh your recollection?” I have never heard a jury say they thought a witness was incredible because they refreshed their recollection from writings they made after they gave a police interview.

I could see where a prosecutor could effectively cross-examine someone and might say, “You did not tell police this, and now you are coming in and telling the jury this?” Obviously, that is going to carry some weight. It will make people wonder, “Well, why didn’t you get back to the police with that additional information?”

eJournal: Having the attorney submit it as a supplemental report suggests a very useful tool for a person who remembers details that need to be reflected in the official record as their minds settle. This is a big subject! Were there other facets to the problems with eyewitness testimony that you have wished we could address with our readers?

Oliver: I think the one takeaway that I would suggest for anybody who has been in any self-defense or a use of force incident, is that after you talk to the cops, get home and have a cup of tea and immediately write out in as much detail as you can every aspect of what happened. Write down every detail. What were you wearing? Did you feel a breeze on your face? Did you hear the wind in the trees? Whatever the details, write down as much as possible. Talk to an attorney and they can decide whether to provide that information to the investigating officer. I think that recording that information will be really valuable later on.

eJournal: This discussion also underscores how very important it is to have legal counsel as quickly as possible so the lawyer can guide what is shared with the police and what is held back privately to help later with recollections.

Oliver: If someone is forced to defend themselves, the only thing out of their mouths to police should be, “I was afraid I was going to be killed or other innocent people were going to be harmed. I want to give a statement, but I want to talk to a lawyer first,” then talk to a lawyer and lay out what happened. Understand that you probably will not be using that lawyer for a defense attorney should you be charged, but you will protect yourself by having a lawyer early in the process. I have seen officers jump to the wrong conclusions. That starts you down the wrong path and even the guy who did everything exactly by the book, and really did protect the lives of innocent people, may end up getting charged with a crime. Talk to a lawyer: that is important, but it is also essential that you write down what happened.

eJournal: This visit has gone off in a couple of directions I did not anticipate. I’m very grateful for all the experiences you’ve shared with us about how witness testimony can help, hurt and be improved for a better outcome for an armed citizen who is just trying to defend themselves or their family and need to explain it all to a court. Thank you very much for your time and for being there for our members if the need ever arises.

About our source: To learn more about Jim Oliver and the Durflinger Oliver law firm, browse to https://www.durflingeroliver.com/.

To read more of this month's journal, please click here.