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respondent's picture shortly after it was shown to them. 37/ Despite the many opportunities given the witnesses to waver in their identification, and in the face of vigorous and able cross-examination by respondent's counsel, they displayed neither the uncertainty nor the rigid inflexibility which bespeaks doubt.
5. Time
The fifth element cited by the Supreme Court is the tine between the crime and the confrontation. Although none of the reported cases involves an interval as long as the one in this proceeding, there are many instances in which the identification occurred a year or more after the crime. See, e.g., United States ex rel. John v. Casscles, 489 F.2d 20 (2d Cir. 1970), cert. denied, 416 U.S. 959 (1974). The difference between one year and thirty is quantitatively great, but as the dissent in Manson pointed out, "the greatest memory loss occurs within hours after an event. After that, the dropoff continues much more slowly." 432 U.S. at 131. Presumably, there is a point at which no further dropoff occurs; one either remembers an incident or one does not. Once that point is reached, the passage of time makes little difference since the memory continues at the same intensity. Not surprisingly, memories of traumatic
| 37/ | E.g. Wulfowitz. According to the Israeli police protocol of the interview at which he was shown a photospread consisting of 18 pictures, Wulfowitz immediately pointed to Hazners' picture and declared, 1"This is Hazners, I recognize him with complete certainty. I exclude the possibility of any error." (Ex. G-8) |
Examination
While we are leaving commentary regarding witnesses' believability to the judicial review, we are compelled to observe that no witness knew Hāzners name prior to believing they saw him based on the photographs shown to them. The INS's earlier account [previous page] of Wulfowitz's testimony regarding Hāzners and his men at the ghetto gate was "'they called him' * * *." Clearly, whatever it was they called him, it wasn't "Hāzners," else the INS would have featured Hāzners's name in the place of three asterisks.
Perhaps it is just our skepticism that Wulfowitz's appears to be a stilted rehearsed statement. Regardless, that a witness insists they are convinced does not mean they are correct.