The prosecution's case was built on faulty eyewitness testimony and fabricated informant testimony.  Faulty eyewtness identification is the leading cause of wrongful convictions, with false snitch testimony a significant contributing cause in the generic wrongful conviction case; in capital cases, false snitch testimony is the leading cause of wrongful convictions.

The jurors listened as the District Attorney confidently narrated of a tale of violence and murder, during which he promised compelling proof in the form of eyewitness and informant testimony.  The prosecutor’s narration was inconsistent with the evidence that would follow;[1] omitted key facts which undermined the prosecution's theory – namely that it was Redd Coles who threatened Young, “You don’t know me, I’ll shoot you,” and that Murray told the police she saw the man who threatened Young reach into his waistband and pull out a gun before striking Young and shooting MacPhail; and it relied upon altered versions of the witnesses’ original statements to the police that night.

In anticipation that problems with his case would be exposed, the prosecutor cautioned the jurors not to be too troubled by those inevitable points of confusion or conflict which occur in “real life and a real court, with real evidence.”  Instead, he urged the jury to consider the evidence as a whole.

No doubt these jurors were eager to hear the defense attorney outline the facts which would compel them to find Davis not guilty.  Instead, in words that would fill a mere three pages, with his client’s life hanging in the balance, the attorney discussed the number of times the defense had introduced themselves to the jury, that his job was to protect the defendant’s constitutional rights; that the prosecutor would have to prove the case, that jurors should forget what they read about his client, that neither the lawyers’ comment nor the indictment was evidence before he summed up his impression of the evidence with these remarks:

After two years, we’re totally confused, and I promise you, before this thing’s over, you are going to be thoroughly confused.

He pointed out that the state’s witness list consisted of felons and jailbirds and, for that reason, are not to be believed.  The lawyer then promised the jurors that the defense would prove the witnesses could not see or hear what they claimed to see and hear.  And, then, he sat down.

[1] For instance, the prosecutor twice misinformed the jury that the “bullet recovered from Officer McPhail’s (sic) body [ . . . ] can be matched to the gun that was used earlier to shoot Michael Cooper.”  In truth, the bullet from MacPhail’s body was only determined to be a  “possible” match to the Cooper bullet.

Contaminated Identifications Were Never Exposed as Such

Because eyewitnesses are so compelling even when they are wrong, they present a unique challenge for the defense.

“[I]t is a fortunate lawyer who has the tools to prove that what an eyewitness claims he saw is a virtually impossibility. Without this capacity, the eyewitness, however wrong, is likely to be believed.” Loftus & Doyle, supra, at § 1-1.  “[N]o lawyer opposing an eyewitness can afford the slightest degree of complacency.”  Id., at § 1-5.

Davis' jurors were not given the information needed to properly assess the reliability of these eyewitnesses

[F]or jurors to fairly assess whether [an identification] is accurate, they must understand memory’s complexity, selectivity, and malleability.  Jurors must also understand what specific factors affect perception and encoding of memories, what factors can pollute memory, and what factors in the re-creation process can distort a witness’ “memory” of an event.” 

Richard S. Schmechel, et al., Beyond the Ken? Testing Jurors’ Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics J. 177–214 (2006).

Several studies show that many jurors do not intuitively know how memory works or what factors can affect accuracy.  Id.  “[R]esearch on this topic show that lay knowledge of eyewitness behaviour is not only limited in scope but also highly inaccurate.” Eyewitness Memory is Still Not Common Sense, supra, 10 Appl. Cognit. Psychol. 115.  Thus, the average juror requires “an alternative source of information.”  Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony Civil and Criminal (Eyewitness Testimony) § 1-3(3rd ed. 1997 and Cumulative Supp. 2005).

Davis' jurors were not asked a single question about these ommon misconceptions and did not have the benefit of expert testimony to explain how memory works.


Davis' jurors were encouraged to rely on "witness confidence" as reported at trial, despite the fact that witness confidence is not a predictor of accuracy.

Research consistently demonstrates that the degree of confidence shown during testimony with regard to eyewitness identification is the single largest factor affecting whether observers believe that the identification is accurate. See A. Bradfield and G. Wells, “The Perceived Validity of Eyewitness Identification Testimony: A Test of the Five Biggers Criteria,” 24 Law & Hum. Behavior 581, 582 (2000); G. Wells, M. Small & S. Penrod et al., “Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads,” 22 Law & Hum. Behav. 603, 619-20 (1998) (surveys and studies show that people believe strong relation exists between eyewitness confidence and accuracy); Brian L. Cutler et al., The Reliability of Eyewitness Identification, 11 Law & Hum. Behav. 233, 234 (1987); K. A. Deffenbacher, Eyewitness Accuracy and Confidence, 4 L. & Hum. Behav. 243, 258 (1980).

However, a confident witness at trial is not more likely to be correct in her identification.  Decades of scientific studies have shown no meaningful correlation between confidence expressed at trial and accuracy of the original identification.  Cutler, et al., The Reliability of Eyewitness Identification, supra, 11 at 234; Deffenbacher, Eyewitness Accuracy and Confidence, supra, at p. 258.