At least five witnesses looked at a photo of James Scarboro last year and told police he was a bank robber.

        “This is the guy,” one witness said, pointing to a picture of the Mount Washington man.

        But Mr. Scarboro's lawyer says the photo was so old that witnesses missed a crucial detail: Mr. Scarboro has a beard and the bank robber does not.

The surveillance camera: The robber in this Oct. 20 bank photo has no beard. But James Scarboro, charged in the robbery, says he had a full beard at the time. | ZOOM |

        Mr. Scarboro's facial hair — or his lack of it — has rekindled an old debate over the reliability of eyewitness identification.

        Few criminal cases are as compelling or controversial as those that rely on the testimony of eyewitnesses. And few cases rely as much on that testimony as Mr. Scarboro's.

        Mr. Scarboro, who will be in court today for a pretrial hearing, is accused of committing five Greater Cincinnati bank robberies between July 1999 and October 2000.

        The case against Mr. Scarboro hinges almost entirely on witnesses who were shown a 5-year-old photo of him without a beard. Prosecutors say the witnesses, along with bank security photos, are more than enough to prove their case.

        But Mr. Scarboro's lawyer says recent family photos prove his client had a full beard at the same time the witnesses claim to have seen him with only a mustache.

The lineup: Witnesses identified a clean-shaven James Scarboro (bottom left) as the bank robber from this photo lineup. This booking mug, however, had been taken five years earlier. | ZOOM |

        The dispute mirrors a national debate that has raged for years over the ability of witnesses to correctly identify a stranger from a crime scene.

        “The problem is not that eyewitnesses are never right,” said James Doyle, a Boston lawyer who has written a book about witness identification. “The problem is that juries believe eyewitnesses are never wrong.”

        A 1996 study by the American Psychology/Law Society found that mistakes by witnesses were among the most common causes of wrongful convictions. Of the first 40 people exonerated by DNA evidence, 36 had been convicted at least in part because of eyewitness testimony.

        Mr. Doyle said mistakes happen because crime scenes are stressful, confusing places. And he said photo lineups can be misleading because they encourage witnesses to choose the person who most closely resembles the bad guy.

        Witness mistakes in a 1995 case nearly led to the conviction of Tony Thacker. The Cincinnati man was freed when a security camera in one bank showed him cashing a check at the same time witnesses claimed he was robbing another bank.

On vacation: One day after the July 19 bank robbery, a bearded James Scarboro reportedly was vacationing in Florida with family. | ZOOM |

        Mr. Thacker's lawyer, Timothy Cutcher, now represents Mr. Scarboro.

        “Eyewitness identification cases are the most difficult,” Mr. Cutcher said. “How often do you see somebody on the street and say, "Hey, that looks like Uncle Ed?' We all do this. We all make mistakes.”

        Although witnesses are an issue in both cases, prosecutors say Mr. Scarboro lacks Mr. Thacker's ironclad alibi. They say eyewitnesses are usually reliable, and there's no reason to think they are wrong about Mr. Scarboro.

        “Eyewitness testimony is very good evidence,” said Prosecutor Mike Allen. “It's evidence a jury or a judge can rely on.”

        While eyewitness identification is common in criminal cases, it rarely decides guilt or innocence on its own. Usually there is more evidence, like fingerprints, blood stains or stolen property.

        But the defense claims a police search of Mr. Scarboro's home did not turn up the baseball caps or clothing worn by the bank robber. The search found no trace of the $60,000 he's accused of stealing.

The booking: Scarboro has a beard

        Prosecutors will not discuss details of the case and refused to say who tipped them off to Mr. Scarboro's possible involvement.

        Mr. Scarboro, who has previous convictions for burglary and drunken driving, was arrested last year after witnesses picked his mugshot from a lineup of six photos.

        Photos from bank security cameras show a robber who bears a strong resemblance to Mr. Scarboro. Mr. Cutcher, however, says his photos and witnesses tell a different story.

        One set of family photos, with a processing date of Sept. 9, 2000, shows Mr. Scarboro coaching his son's PeeWee football team and posing in a team photo.

        In one photo, he has at least a light beard. In another, shot from a distance, he appears to have some hair growth but it's unclear how much. The head football coach testified the photos were taken within a day or two of an Aug. 28 bank robbery.

        “I'd seen him three or four times a week,” said the coach, Joe Chaney. “I don't ever remember him being clean-shaven. He always had a beard.”

        Other family photos, dated July 1999, were said to have been taken on a Florida vacation that began the day after a July 19 robbery. In those photos, Mr. Scarboro has at least a light beard.

        After viewing some of the photos, Hamilton County Judge Thomas Crush spoke about the challenges of eyewitness identification.

        “I cannot say from the bank photos that it is definitely this man, but I also cannot say it is not him,” the judge said. “I've seen too many cases where people look like someone else.

        “The thing I can't get past is the beard. We have a picture a few days after a robbery showing the defendant with a rather full beard.”

        But the judge said he could not be certain. He reduced Mr. Scarboro's bond from $50,000 to $40,000, refusing a defense request to lower it further.

        The judge may consider the bond issue again today after hearing more about the photos and evidence.
       

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