The mind can play tricks on us

By Atty. Eduardo T. Reyes III

How reliable is an eyewitness identification of a suspect in a crime?

It is out of the question that crimes must not go unpunished. However, it must be underlined that the punishment must be meted on the culprit, not someone falsely or mistakenly charged.

Police investigators in running after the suspects would mostly rely on eyewitness account or recollection of the events and their marshalling of the physical features of the culprits.

Yet it has been proven in psychology that when reacting to certain stimuli, our powers of observation could be compromised.

Too, it is now a scientific and legal truism that a person’s recollection of certain events should not be likened to a digital recorder that records and saves data as they are. Instead, the human mind works differently. In The Black Swan by Nassim Nicholas Taleb (pg. 71, Second Edition), he pointed out that:

“We continuously re-narrate past events in the light of what appears to make what we think of as logical sense after these events. By a process called REVERBERATION, a memory corresponds to the strengthening of connections from an increase of brain activity in a given sector of the brain – the more activity, the stronger the memory. While we believe that the memory is fixed, constant, and connected, all this is very far from truth. What makes sense according to information obtained subsequently will be remembered more vividly. We invent some of our memories- a sore point in courts of law since it has been shown that plenty of people have invented child-abuse stories by dint of listening to theories”.

This scientific finding found its way in Philippine jurisprudence when the Supreme Court in People v. Ansano, G.R. No. 232455, Dec. 2, 2020, acquitted an accused on account of the unreliable out-of-court identification made by prosecution witnesses. It was held therein that when the out-of-court identification is tainted, then the in-court identification must likewise be deemed smeared and should be treated as unreliable evidence.

Then in the recent case of People of the Philippines v. Jun Villegas @ “Pedrito” Basigna, Udebs Gonzales, and Kenneth Matia sy Anglo, G.R. No. 247002 which came down on April 12, 2023, the Supreme Court congealed what it calls “danger signals” which trial courts must look for in criminal trials. These are:  

“(1) The witness originally stated that he or she could not identify anyone; (2) The identifying witness knew the accused before the crime, but made no accusation against him or her when questioned by the police; (3) A serious discrepancy exists between the identifying witness’ original description and the actual description of the accused; ( 4) Before identifying the accused at the trial, the witness erroneously identified some other person; (5) Other witnesses to the crime fail to identify the accused; (6) Before trial, the witness sees the accused but fails to identify him or her; (7) Before the commission of the crime, the witness had limited opportunity to see the accused; (8) The witness and the person identified are of different racial groups; (9) During his or her original observation of the perpetrator of the crime, the witness was unaware that a crime was involved; ( 10) A considerable time elapsed between the witness’ view of the criminal and his identification of the accused; (11) Several persons committed the crime; and (12) The witness fails to make a positive trial identification”.

 Indeed, it necessarily follows that when any of these “danger signals” is present in a case, the trial court would be justified in acquitting the accused as it means that proof beyond reasonable doubt was not mustered in the case. Which reminds of another fundamental rule that states that:

A conviction for a crime rests on two bases: (1) credible and convincing testimony establishing the identity of the accused as the perpetrator of the crime; and (2) the prosecution proving beyond reasonable doubt that all elements of the crime are attributable to the accused. Proving the identity of the accused as the malefactor is the prosecution’s primary responsibility”. (People of the Philippines v. Jun Villegas @ “Pedrito” Basigna, Udebs Gonzales, and Kenneth Matia sy Anglo, G.R. No. 247002. April 12, 2023).

(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is