Saturday, May 8, 2021

MCN/USA TODAY Network: Eyewitness identification is convincing, is it reliable?

Matthew T. Mangino
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 and follow him on Twitter @MatthewTMangino.

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