The prosecution of Brandon Craig for a triple-murder in 1999 is based primarily on eye-witnesses. I’m not a lawyer, just a former juror, who has heard that most criminal prosecutions are based on such “direct evidence,” which includes eye-witness accounts and confessions. Only a minority of crimes are real whodunits, “solved” by clever sleuthing and analysis of “clues,” (a.k.a. “circumstantial evidence”).

Direct Evidence

Cops catch the bad guys “red-handed” sometimes. Criminals confess sometimes. Most criminals “get ratted out” by eye witnesses or accomplices or someone who has heard something from someone about the crime, including the criminal. The latter is how the cops caught Brandon Craig.

But regardless of the identity of the person supplying evidence against a defendant, all such witnesses must subject themselves to the eyes and ears of a jury—a jury of the defendant’s and the witnesses’ peers. These peers are their neighbors. They speak and look like them. They share cultural norms and some experiences. They are best able to assess the truth or falsehood of the testimony.

Even confessions are submitted for a jury’s evaluation. In the recent Kathleen Hilton arson/murder trial, the jury had to assess the trustworthiness of the defendant’s written, signed confession.

In the Brandon Craig trial, several prosecution witnesses have identified the defendant as “the shooter.” One was a former girlfriend and distributor of drugs to the defendant. Two others were apparently fellow drug dealers. All three said they witnessed the murder and helped in the cover-up. Other witnesses testified that they had heard hints of all this beginning soon after the trial—their testimony is offered to the jury to corroborate the eye-witness stories.

Cross-Examination to “Impeach” the Witnesses

Lawyers must learn in law school that the best way to undermine eye-witness testimony is to convince the jury that it can’t be trusted because the witness is an admitted liar or even a criminal. I’ve heard them say something to the effect that a witness who “is false in one [statement] is false in all.”

This is a rather distorted version of Kant’s categorical imperative, I suppose. Kant famously pointed out that in the matter of ethics, the telling of a single lie can cause everything a person says or does to be questioned. He didn’t say that if a person is caught telling a single lie, therefore everything he says is a lie—just that his auditors need to examine everything he says carefully for errors and falsehoods. It isn’t something a rational, ethical person should want to have happen. It would be like living under a microscope.

Jurors understand this, even though lawyers may not. Jurors have common sense. They understand that a witness may not tell the whole truth and nothing but the truth and yet may still tell a fundamental, essential truth. They understand that a witness may lie to make herself sound less culpable than she really is and still tell who “the shooter” really was.

And jurors understand this, even after the judge reads them jury instructions that tell them they may disregard all the testimony of a witness if they believe he or she lied. This is also something lawyers (who include judges) must learn in law school: they seem to think this idea of “false in one, false in all” is the basis of the most reasonable of doubts. They expect juries to acquit defendants like Brendan Craig because the eye-witnesses are such flawed characters themselves.

How Can a Jury Sift through Lies?

Jurors are human (a fact that even courts seem to acknowledge). Humans with normal hearing and eyesight learn from birth to interpret facial expressions, eye movements, body language, and tone of voice. Jurors use these skills to evaluate witnesses.

Some jurors may even have read or studied “body language” and “neuro-linguistic programming.” I know I did. A few years ago, both were management-training fads, and every businessperson I knew took courses in NLP and reading body language. (After all, a manager has to be able to put an employee in the hot seat and “grill” him.)

In the Brandon Craig trial I watched the testimony of two young women, whom commentators judged to be completely incredible, defensive, and weeping crocodile tears. I guess I didn’t get as good a look at them during their close-ups as the commentators did. I detected nothing evasive or phony in their demeanor. Defensive, yes. With good reason.

On the other hand, these same commentators have called the defendant’s demeanor “professional,” when I would have characterized it as “flat affect,” forensic psychologists’ favorite description of psychopaths. He doesn’t seem to blink very often, either.

For example, the “girlfriend” answered questions put to her by defense attorney, Pamela Mackey, without once opening her eyes wide in the typical gesture a person makes when she wants very much to be believed. And a sister of one of the drug dealers had to admit she had lied to police and to another witness. When asked if a certain statement was a lie, she shook her head “no” (a reflexive denial of an obvious lie) but still said “yes” without hesitation. In other words, she was forcing herself to tell the truth. So, I found these two young women credible, for the most part.

For the most part. And here’s the crux of the issue. I suspect that the jurors in this trial understand that most of these witnesses lied about something on the stand. The reasons why they waited so long to come clean seem to me to be obvious “stretching of the truth.” The girlfriend claimed she was afraid for her own life (and I do believe this), but I also suspect the real reason she kept quiet was that she knew she was guilty of murder under the law, too. If you’re committing a crime (such as dealing drugs and threatening people to get them to pay you) and people get shot, you have committed murder under the law, whether or not you pulled the trigger. She’s guilty, and she’s been given immunity. She lied about that. But that doesn’t mean everything she said was a lie.

In Cook County Criminal Courthouse

A couple of years ago, I was a juror in a sexual assault and kidnapping trial in Cook County Criminal Courthouse. The assailant was not only seen by eye witnesses, they witnessed the assault and supposed kidnapping and then performed a citizen’s arrest.

One of these brave citizens testified about what he had seen. It was all believable until he went a bit too far. He testified that he saw the defendant pull his victim from a sidewalk twenty feet (halfway) up a railway embankment and conceal her behind a bush. On cross-examination, the defense attorney asked him how he could be so sure it was twenty feet. He replied that he had measured it with a tape measure.

In deliberations, all the jurors agreed that he was lying about the measurement. We had photographs of the embankment and bush, and all knew most railway embankments are at most only about twenty feet high. We all thought the prosecution or cops must have told the witness that he should say the distance from the sidewalk to the bush was significant so that the judge could call this a kidnapping. All of us knew it was a well-intentioned lie under oath.

We didn’t discount everything he testified because of it.