The following stories are the same:

1. A family of three had moved to a small house in the woods after their apartment was burglarized in the city, an incident that traumatized their young son. One brisk morning they return home from gathering mushrooms for a stew and find that their front door is cracked open. Dirty footprints lead inside. The mother and young son stand back as the father opens the door. He sees that their smallest wooden chair is splintered to pieces on the floor. The food leftover from their breakfast has been ravaged. Thick mud has been tracked on floor, defacing the rugs his wife stitched to keep their feet warm in the winter. And in the corner of the home, in the bed where his son sleeps, is a stranger with dirty feet and the covers pulled all the way over their head. The stranger suddenly wakes up, screams, and runs out of the house without anyone seeing their face, leaving behind a few strands of blond hair.

2. A young woman is lost in the woods. Her shoes are broken from walking through dense brambles. The seams leak when she steps in the mud. She’s hungry. It’s been days since she had any real food. In desperation she ate some questionable berries and gnawed on pine bark. With no cellphone or means of communication, it’s starting to look like she won’t survive the wilderness. Then, in the clearing, she sees a house. She sprints to the door and knocks. No answer, but the door is open. Inside she finds forgotten bowls of cooked oats. She sits down and eats her fill. Exhausted she climbs into a bed in the corner and falls asleep. When she wakes up, three massive bears are standing over her. She screams and runs back into the forest.

The story also happens to be a version of Goldilocks and the Three Bears. It’s a simple fairytale but when told in two ways, it illustrates how our opinions about an event can be shaped by the arrangement of information, what details are included and the perspective of the narrative.

When we think of stories, we think of books, movies, television shows, comics, plays, parables and fairytales.

But a criminal trial is also a story.

…………………………………………..

It was March 2, 2019, a Saturday night, and Antonio was driving to Butts’ house for a party. Butts was his nickname. Antonio didn’t know the guy well, but they had seen each other a few times before. He seemed like a cool dude. Antonio’s iPhone was perched on his dashboard displaying Google Maps. He followed the blue arrow towards Butts’ address, flying by Exposition Park, Tam’s Burgers, Ross Dress for Less, Rite Aide, First Bethany Baptist Church and Koko’s Liquor. Antonio arrived on a residential street and parked. It was dark. Not a street light in sight, just the glow of the Los Angeles night sky, a haze that is never pitch black.

Antonio walked up to Butts’ address. His footsteps slowed as he saw the house.

It was a small, stucco building in disrepair. Shingles on the roof hung at wonky angles. Cabinets, splintered tables and plastic buckets cluttered the lawn. The front window was pane-less, a gaping wound in the home’s façade.

Antonio cracked open the iron gate and treaded cautiously onto the lawn. He shouted towards the dilapidated house. “Butts!”

The door creaked open.

A hulking man stepped out.

He had a gun.

This was not Butts.

“I know what you’re doing!” the man shouted.

Then he shot at Antonio. The bullet pierced his left thigh and Antonio took off, barreling through the piercing pain. The adrenaline got him to his car and Antonio drove himself to the hospital. Teeth gritted, hands strangling the steering wheel, and fear pulsing through his veins.

……………………….

It’s now October 22, eight months and twenty days after that calamitous evening. The events that transpired between then and now have led to the arrest of Victor Machuca, who is charged with first degree attempted murder and felon possession of a firearm. His bail is set at two million fifty thousand dollars. If convicted, Machuca faces a sentence of twenty-five years to life in state prison.

Today is Machuca’s preliminary hearing. He slouches at the counsel’s table in his blue county jumpsuit. His neck stretches from side to side, his shoulders tense and roll. This is a man who seems to hold his emotion in his muscles. His body seems to be in extreme discomfort.

Here’s the story of how Machuca got here. 

At least one version of it.

Antonio was interviewed at the hospital by Officer Juan Mata. By that time, Antonio had realized his error. When he parked, he had walked left instead of right, leading him to the wrong house. One wrong turn — a split-second decision — had resulted in a bullet to his leg. The searing pain made answering the officer’s questions difficult.

Antonio showed Mata the approximate location of the shooting on a map. Mata asked for a description of the shooter, but Antonio said it was too dark to give specifics. He was big, maybe 200 pounds. And tall, probably about six feet. The gun was a handgun but he couldn’t make out the model. Officers went to the scene of the crime. They canvassed the area and knocked on doors, but found nothing. No bullet casings and no witnesses willing to come forward. Antonio was never brought to the scene to identify the house. Perhaps as a result, in the days following the shooting, no search warrant was issued for the home in which the suspect presumably lived. 

Antonio moved to Arizona. It’s unclear if the move was planned or if it was prompted by the shooting. Either way, he found some new scenery. A new start.

Twenty-six days after the violent incident, detective-in-training Louis Garcia showed up at Antonio’s house with a sheet of paper with six photographs, often called a six-pack. The six-pack acts as a two dimensional line-up. Five “filler” photographs of individuals who look similar to the suspect are displayed along with a photograph of the suspect. The pictures are usually driver’s license photos so they all have uniform formatting. Garcia asked Antonio to circle anyone in the six-pack that resembled the shooter.

Antonio circled two men.

Again he told the detective that it had been dark. It could be either of those men. Maybe it was neither. But Garcia did not come all the way to Arizona for “either” or “maybe.” He needed an answer. The detective asked Antonio to look at the six-pack again and circle the person who “most resembled the person who shot him.”

That’s when Antonio circled Victor Machuca’s face.

Machuca lived close to the address that Antonio had pinpointed and he had a long list of prior convictions. But still, the identification of Machuca was beginning to feel like the board game Guess Who? 

Countless studies have shown that memory is unreliable, especially regarding traumatic events. Faulty memory is then compounded during lineups, when a witness may feel pressure to give officers an answer – or the “correct” answer. Criminal justice advocates have released recommendations to improve suspect identification procedures. These include sequential lineups, in which witnesses are shown photographs one at a time in order to avoid choosing a picture just because it looks the most like the perpetrator, and double-blind lineups in which the officers displaying the lineup or six-pack doesn’t know the suspect and therefore can’t pressure the witness to make the desired identification.

We’re not flicking down plastic flaps depending on who has glasses or who’s wearing blue: this is evidence in a criminal case. The six-pack that Antonio circled was a primary piece of evidence in Victor Machuca’s preliminary hearing. 

Detective Garcia returned to Los Angeles. Days later, Machuca happened to be arrested for a different offense. While he was in custody, Garcia questioned him about the shooting. Machuca denied having shot anyone but did mention that he got into a physical altercation with a black man several weeks before. According to Machuca, the man entered his property and attempted to steal some tools lying in the front yard. They got into a fistfight and eventually the man retreated.

Garcia and his superiors made the leap that this altercation must have been the one with Antonio. Obviously, Machuca was changing some details to conceal his crime, but enough facts aligned to make the arrest. Subsequently, prosecutors charged him with attempted murder. A search warrant was finally issued for his home. When detectives entered, they found a firearm. 

At the close of Machuca’s preliminary hearing, Judge David Fields upholds the prosecution’s charges. Given the facts presented in court — Machuca’s address, his possession of a firearm, and his description of a past altercation with a man similar to Antonio — Field’s ruling is understandable. In a preliminary hearing, the prosecution’s burden of proof is probable cause, basically a presentation of the facts that would elicit a strong suspicion that the defendant committed the alleged crime.

What’s worrying is the six pack and Antonio’s tentative identification. If admitted as evidence in a trial, such information might mislead jurors into thinking that this is a straightforward case. The victim identified the defendant. The victim had bullet wounds. The defendant had a gun in his house. The puzzle wants to assemble itself, but it’s important that the process is done manually, checking each piece for nuance so that the whole picture is accurate.

There is a possibility that the six pack will not be admitted during the jury trial. Such evidence could be excluded if its probative value is substantially outweighed by its prejudicial effect. Probative value is the degree to which the evidence proves the allegations. Basically, how important is that evidence to the prosecution’s case? Prejudicial effect is the extent to which the evidence impairs the jury’s ability to understand the case. It can refer to evidence that arouses intense emotion in the jury or irrelevant, bad character evidence that would make a jury partial to conviction. Prejudicial effect can also apply to evidence that takes up more time than it’s worth or evidence that might confuse or mislead a jury. 

In other words, how the story is told matters.

Let’s imagine that Goldilocks’ case were presented before a jury.

— If Goldilocks had been convicted of arson when she was 15 that could be deemed inadmissible because it could be seen as bad character evidence that has a prejudicial effect on the jury.

— If Goldilocks had meth on her person when she broke into the bears’ home, that could also be deemed inadmissible because of its prejudicial effect.

— If the prosecutor wanted to bring in an expert to testify on the culinary history of porridge, that could be deemed inadmissible because the amount of time it would take might outweigh its value to the case.

— If the bears had security footage and the prosecutor wanted to show the jury hours of Goldilocks sleeping that also could be deemed inadmissible as a waste of time.

Now let’s imagine that – even though no one in the family saw the face of the trespasser – the family is later shown a lineup that includes Goldilocks, The Wicked Witch, Cinderella, The Big Bad Wolf, Little Red Riding Hood, and Snow White. The father thinks that the offender is either Goldilocks or Cinderella based on the blond hair, but then he feels pressured by the officer to choose. That might be deemed inadmissible. The value of the testimony to the case might be outweighed by how the statement could mislead the jurors into thinking the father is more certain than he actually is. 

The man who shot the gun yelled “I know what you’re doing!”

Maybe that was Machuca yelling at Antonio about his tools. Or it might have been a different man who felt threatened by Antonio. It’s also possible that Antonio is lying about the entire event.

If the six pack identification is admitted into evidence, I hope that the jury members are provided with enough context to give that evidence the appropriate weight. Because, in spite of everyone’s best intentions, the rules of evidence aren’t always interpreted in service of that mission.

In other words, I hope the attorneys on both sides find a way to tell a story that illuminates the truth.