MCN/USA TODAY Network
May 7, 2021
For decades eyewitness identification was considered the
gold standard when it came to evidence used to gain a conviction.
In the famous courtroom drama “12 Angry Men,” rated by the
American Bar Association as one of the 25 greatest legal movies of all time,
juror No. 8, played by Henry Fonda, earnestly advocated for a not-guilty
verdict.
Fonda started out as the only not-guilty vote. The turning
point of the deliberations occurred when an older juror recalled that the
state’s prized eyewitness, who had observed the murder through her window as she
laid in bed, had red marks on her nose left from wearing eyeglasses. The older
juror asked a reserved bespectacled juror, “Do you wear your glasses when you
go to bed?” The bespectacled juror responded, “No, I don’t. No one wears
eyeglasses to bed.”
Stephen Handelman, editor-in-chief of The Crime Report, an
online news service, wrote recently, eyewitness identification is “often the
most dramatic moment in a TV crime procedural: An eyewitness is brought into
the station house to identify a crime suspect from a lineup. Tension builds as
detectives await the definitive truth that will lead to a conviction.”
Eyewitness identification can be convincing, but is it
reliable?
More than 75,000 prosecutions every year are based entirely
on eyewitness identification. Some of those identifications are erroneous.
Advances in the social sciences and technology have cast a new light on
eyewitness identification.
Hundreds of studies on eyewitness identification have been
published in professional and academic journals. One study by University of
Virginia Law School professor Brandon L. Garrett, found that eyewitness
misidentifications contributed to wrongful convictions in 76% of the cases
overturned by DNA evidence.
U.S. Supreme Court Justice Sonia Sotomayor has acknowledged
the shortcomings of eyewitness testimony. She wrote, “eyewitness
identifications’ unique confluence of features - their unreliability,
susceptibility to suggestion, powerful impact on the jury, and resistance to
the ordinary tests of the adversarial process - can undermine the fairness of a
trial.”
What can cause an eyewitness to misidentify a suspect? There
are a number of factors: Poor lighting, the crime occurred quickly, the
presence of a gun, and the fact that the perpetrator is a different race than
the witness. The police can, as well, intentionally or unintentionally
influence an eyewitness’ identification.
A number of states have put in place a process to review and
revise state rules for how judges and jurors treat evidence from police lineups
and photo arrays. States are utilizing practices supported by years of
research.
A recent research paper published in the Journal of Research
in Memory and Cognition argues it’s long overdue to replace the current
“antiquated” approach to eyewitness identification as it relates to lineups and
photo arrays.
The authors, Neil Brewer of Founders University in Australia
and James Doyle, a Boston based criminal defense attorney propose a “screening”
method in which eyewitnesses are asked to grade the probability that one of an
array of persons presented to them in a lineup matches the perpetrator of a
crime.
According to Handelman, the alternative approach replaces
the “categorical traditional identification decision with a procedure whereby
the witness simply rates how confident they are that each person in the lineup
is the culprit.”
“The confidence ratings ... provide a probabilistic guide as
to whether the culprit is in the lineup,” wrote Handelman quoting the report.
“And this, of course is the fundamental question being asked.”
Former U.S. Supreme Court Justice William J. Brennan Jr.
wrote in a dissenting opinion nearly 35 years ago, “There is almost nothing
more convincing than a live human being who takes the stand, points a finger at
the defendant, and says, ‘That’s the one!’”
No one can challenge that impact of eyewitness
identification. However, it is clear from the research and the growing number
of exonerations that the reliability of eyewitness identification falls far
below its impact. Without meaningful reform the threat of convicting the
innocent continues.
Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.
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