It’s one of the oldest courtroom gambits in America, the Perry Mason moment: a prosecutor in a criminal trial asks a key witness if he sees the person who committed the crime anywhere in the room. Pause. The witness turns and points to the defendant, as the jurors take it all in.
But this enduring practice, dating back to colonial courthouses, has come under fire in the last few years as an often unreliable tool that has no place in a 21st century trial, reported The Marshall Project.
Citing a vast body of research on the fallibility of eyewitness testimony in general, questions are now being raised specifically about in-court identification. Some experts say the tactic is unduly suggestive, ineffectively tests a witness’s memory, and provides more theatrical flourish than probative evidence. They also say that the process leaves room for error.
Massachusetts and Connecticut have already limited the use of this approach. In both states, the main concern was that the witness in the courtroom was making the identification for the first time, and had not previously picked the defendant out of a standard lineup or photo array. In some cases, the witness may be making the courtroom identification weeks—or even years—after the crime took place.
A 2016 state supreme court decision in Connecticut held that witnesses cannot be asked for an in-court identification unless they knew the defendant before witnessing the crime or have already successfully identified the defendant in an out-of-court procedure, or the perpetrator’s identity is not contested.
In Massachusetts in 2014, the state’s top court largely banned the practice for cases in which witnesses had been anything short of unequivocal in identifying the defendant before the trial. It’s possible that Colorado will soon be joining them.
The push to restrict in-court identification began roughly five years ago with efforts by The Innocence Project, a nonprofit legal organization that seeks to exonerate the wrongly convicted. The group, which hopes to continue its efforts around the country, has kept data on DNA exonerations in the U.S. since 1989. It reported that 71 percent of those wrongful convictions have involved some kind of mistaken eyewitness identification, both in and out of court. Of that 71 percent, more than half involved an incorrect in-court identification.
Innocence Project lawyers contend that first-time in-court identification increases the risk of wrongful conviction. They argue that the powerful theatrics of pointing to the defendant can sometimes overcome the shortcomings of a weak case.
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