CREATORS: Eyewitness Identification Under Scrutiny

Matthew T. Mangino
CREATORS
August 12, 2025

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 lay 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."

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's identification.

There are four basic rules proposed by researchers to help promote valid police identifications, including: Who conducts the lineup; instructions on viewing the lineup; the structure of the lineup or array; and immediately obtaining a confidence statement for the eyewitness.

When it comes to the "who," research supports double-blind lineups administered by a police officer who is not familiar with the suspect and who is not one of the primary investigators on the case. The instructions are equally important. For instance, a photo array should be presented sequentially rather than as a group without comment by the officer displaying the array. Research studies have revealed that both practices decrease the pressure on witnesses to pick someone and guard against undue influence.

The structure of the lineup is another area where bias can seep into the process. If the eyewitness described the suspect as a white male with long hair, approximately 6 feet, 4 inches tall, with a thin build, it would not be fair to have the suspect and four short, overweight, bald men in a lineup.

Finally, a confidence statement taken from the witness immediately after the array or lineup will provide the police, the suspect and ultimately jurors with a clear understanding of just how sure — or confident — the eyewitness is in her identification of the suspect.

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 the 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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CREATORS: DNA Reveals Flaws in Criminal Justice System

Matthew T. Mangino
CREATORS
February 11, 2025

The Innocence Project used to track all DNA exonerations throughout the country. An exoneration clears a convicted person of blameworthiness. Now they track all "Innocence Project successes," which includes all exonerations generated through DNA or other evidence.

There were 375 DNA exonerations between 1989 and 2020. For those 375 men and women and their families, DNA saved them from the anguish and pain of being locked up for a crime they did not commit. For the rest of us, DNA revealed the many flaws in the criminal justice system.

The "other successes" are even more impressive than the DNA exonerations. In "Bringing Ben Home: A Murder, a Conviction, and the Fight to Redeem American Justice," Barbara Bradley Hagerty declared, "The double helix has sparked a revolution." DNA has exposed the errors of our way.

The Innocence Project is right to celebrate those non-DNA exonerations. "[O]verturning a wrongful conviction, even with DNA evidence, is extremely difficult. ... [Without it] it's so much harder," Rebecca Brown of the Innocence Project told Bradley. She goes on to say, "It comes down to, really, serendipity. ... We should not be having to depend on luck."

DNA is not present in every case. However, there are still mistaken identifications, police misconduct and bad forensics throughout the system. The Innocence Project lists six "contributing causes" for wrongful convictions: eyewitness misidentification; false confessions or admissions; government misconduct; inadequate defense; informants; and unvalidated or improper forensic science.

More specifically, in 63% of wrongful convictions there was eyewitness identification; 52% had inaccurate or unscientific forensic analysis; 19% had untrustworthy informants: and 28% had confessions.

Imagine that nearly 3 in 10 people exonerated pleaded guilty to a crime they did not commit. How does that happen?

In 2010, 17-year-old India Spellman was arrested by Philadelphia police for the robbery of a woman with a gun and as the shooter in the robbery and murder of a second person. India and her co-defendant were taken to the police department for interrogation. Although she was a juvenile, her parents were kept from the interrogation room.

As the 17-year-old was alone with the police, a detective hit her in the face and screamed at her. He left the interrogation room and returned with a statement that Spellman signed after detectives refused to read her the content of the statement. The statement was a confession to being involved in both robberies.

Thirteen years later, a judge vacated Spellman's conviction. The trial — which featured a misidentification, a coerced confession and prosecutors withholding exculpatory evidence — had been unconstitutional.

As science evolves, so does the reliability of forensic evidence. The gold standard pre-DNA was the human fingerprint. You may be surprised to learn that the uniqueness of a fingerprint is an assumption, not a well-studied idea.

According to Discover magazine, the "lack of a fundamental scientific basis for the supposed uniqueness of fingerprints — and the inability for apparent experts to reliably match them or even agree on what's required for a match — has seen some federal courts reject fingerprints entirely as evidence."

Even DNA has come under scrutiny. As collection of DNA at crime scenes has become more sophisticated, gathering minute biological samples has emerged as potential for folly. Finding someone's DNA at a crime scene doesn't necessarily mean they were ever at that location. Transfer DNA can spread to objects and places by way of other human carriers.

In one case, according to Discover magazine, a man's DNA was found on a murder victim who was killed in their home. The man whose DNA was found at the crime scene was in the hospital during the murder. The DNA had been transferred by a paramedic who brought the man to the hospital and who later responded to the 911 call made regarding the homicide.

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 Bluesky @matthewmangino.bsky.social.

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Mistaken eyewitness ID responsible for nearly 7 out of 10 wrongful convictions

Mistaken eyewitness identifications contributed to approximately 69% of the more than 375 wrongful convictions in the United States overturned by post-conviction DNA evidence, according to the Innocence Project.

• Inaccurate eyewitness identifications can confound investigations from the earliest stages. Critical time is lost while police are distracted from the real perpetrator, focusing instead on building the case against an innocent person.

• Despite solid and growing proof of the inaccuracy of traditional eyewitness ID procedures – and the availability of simple measures to reform them – traditional eyewitness identifications remain among the most commonly used and compelling evidence brought against criminal defendants.

Traditional Eyewitness Identification Practices – And Problems

• In a standard lineup, the lineup administrator typically knows who the suspect is. Research shows that administrators often provide unintentional cues to the eyewitness about which person to pick from the lineup.

• In a standard lineup, without instructions from the administrator, the eyewitness often assumes that the perpetrator of the crime is one of those presented in the lineup. This often leads to the selection of a person despite doubts.

• In a standard lineup, the lineup administrator may choose to compose a live or photo lineup where non-suspect “fillers” do not match the witness’s description of the perpetrator or do not resemble the suspect. This can cause the suspect to stand out to a witness because of the composition of the lineup. This unintentional suggestion can lead an eyewitness to identify a particular individual in a photo array or lineup.

• In a standard lineup, the lineup administrator may not elicit or document a statement from a witness articulating their level of confidence in an identification made during the identification process. A witness’s confidence can be particularly susceptible to influence by information provided to the witness after the identification process. Research shows that information provided to a witness after an identification suggesting that the witness selected the right person can dramatically, yet artificially, increase the witness’s confidence in the identification. Therefore it is critically important to capture an eyewitness’s level of confidence at the point in time that an identification is made.

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

Matthew T. Mangino
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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Handelman: Eyewitness misidentifications occur frequently

Stephen Handelman of The Crime Reports writes:

It’s 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.

In real life, however, things are rarely as cut and dry. In one meta study of 6,734 lineups conducted in police precincts around the U.S., nearly 40 percent of the eyewitnesses fingered someone who was added as a “filler”—that is, known to be innocent.

Another meta-analysis found that as many as 50 percent of eyewitness identifications –based on police lineups or mixing photos of suspects with “fillers” —may be inaccurate. Such misidentifications account for a large portion of the wrongful convictions overturned by the Innocence Project.

Most troubling of all: the proliferating number of such misidentifications means that countless culprits have escaped detection.

A recent research paper published in the Journal of Research in Memory and Cognition argues it’s long past time to replace this “antiquated” approach to eyewitness identification.

The authors, Neil Brewer and James Doyle, 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.

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,” they explain.

Brewer is an eyewitness memory researcher at the College of Education, Psychology and Social Work at Finders University in Australia. Doyle is a veteran Boston criminal defense attorney, as well as a legal affairs columnist for The Crime Report.

The authors argue that the confidence-comparison technique that Brewer played a leading role in developing should trigger a serious collaborative effort by researchers and practitioners to replace the error-prone traditional lineup.

The approach builds on the work of a number of eyewitness specialists who have examined various “markers” for judging the confidence of eyewitnesses, in the face of a number of reforms that are already in wide use around the U.S.— such as ensuring that the police who oversee the lineup are themselves unaware of the identity of the suspect, so they cannot unconsciously transmit any signals.

Despite these reforms, they note, “it is clear from research that mistaken identification of innocent suspects or fillers, and failures to recognize the culprits when in the lineup, will occur too frequently.”

Ending the “categorical” approach demanded of eyewitnesses — a “yes” or “no” – would make room for more nuanced decision-making that allows police and prosecutors to use additional information the eyewitness might have that can assist in identification, the authors write.

Using the example of an eyewitness who picks an innocent “filler” over the real culprit, they argue that there may be other signals that have obscured memory for individuals who aren’t confident of their choice to begin with.

“What if the witness—despite having picked a filler—had access to valuable information in memory that is simply not accessed within the framework of the lineup’s categorical decision? Perhaps, for example, the culprit is in the lineup and is a good match to the witness’s memory, but a filler appears to be a better match.

“…It seems plausible that the witness may have access to invaluable memorial information that could be tapped―if we could find a way of doing so.”

The alternative approach suggested in the paper involves giving the eyewitness a screen in which he or she can click on 11 “confidence buttons” when looking at an array of individuals in a lineup or in a set of photos. The buttons provide the option of rating between zero percent and 100 percent their confidence of whether the person they are looking at matches their memory of the suspect.

“The confidence ratings…provide a probabilistic guide as to whether the culprit is in the lineup,” the paper says. “And this, of course is the fundamental question being asked…because in single-suspect lineups all other lineup members are known to be innocent.”

The approach is aimed at extracting the maximum information the eyewitness holds in memory about the suspect—information that might otherwise be lost if an unconfident witness is just asked to affirm or reject the choices she has been presented with.

The authors admit that a “probability” rating is not conducive to the demands of judges and prosecutors who are seeking a clear case for conviction. But they argue that it offers a more practical approach to conducting unbiased investigations.

“The procedure offers critical information for investigators and the courts that the traditional lineup cannot provide,” they wrote.

They added that having some informative evidence against the suspect might “be more attractive than having the case weakened by the witness’ failure to make a categorical identification.”

The authors acknowledge that adapting this approach would be a challenging shift for traditional players in the justice system, but said they hoped their idea could provoke researchers and practitioners into in-depth discussions about other potential alternatives..

“Under the (current) system, witnesses, not investigators or prosecutors, have essentially shouldered the responsibility for the case proceeding or being abandoned,” the paper said.

“With the confidence ratings procedure, the witness is basically ceding that responsibility to the investigator and the prosecutor who would have to use the data to make that choice.”

While that may not be the stuff of crime dramas, the result is likely to be “fewer mistaken identifications and fewer offenders avoiding justice,” the authors wrote.

The full paper can be downloaded here.

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Eyewitness identification: Minimizing the risk of error

People who witness a crime may identify the wrong person as the perpetrator for a multitude of reasons, many of which relate to basic psychology, the authors of the report write: In the room with law enforcement, a nervous witness wants to be helpful, and may strain to deliver the answer they believe the authority figure standing next to them wants to hear, reported The Appeal.

Officers want just as badly to solve the case and may unintentionally provide suggestive clues about the suspect’s identity—a phenomenon known as the “expectancy effect.” Beginning a lineup with comments like “We got the guy and just need you to pick him out,” for example, can prompt an otherwise hesitant witness to hazard a guess. 

If a witness has previously seen someone—in an earlier photo lineup, for example, or on social media—they might incorrectly believe they remember that person as the perpetrator. For this reason, the report’s authors recommend against including the same person in successive identification procedures, and urge law enforcement to discourage witnesses from doing their own amateur detective work online.

Police sketches, another staple of criminal procedurals, are another potential source of error. Research shows that people “typically process faces holistically, not feature-by-feature,” which means that a composite cobbled together from a witness’s description of individual features may end up looking nothing like the perpetrator. Yet police, with little else to go on, are likely to start looking for people who look like the composite—straying further away from the witness’s actual description, and perhaps ignoring promising leads in the process.

For the witness, the composite immediately becomes the most tangible representation of someone they may have only briefly glimpsed. During subsequent identification attempts, they may focus on a person’s resemblance to the sketch, as opposed to their recollections of the perpetrator. Because composite or sketch evidence is involved in about a quarter of DNA exonerations, the report authors recommend that law enforcement “only use them rarely and with great caution.”

Courts have long been at least somewhat aware of the shortcomings of these identification procedures. Whether police show a suspect in a photo array or alone, “it is obvious that risks of suggestion attend either form of confrontation,” Supreme Court Justice William Brennan wrote in United States v. Wade. 

And as Brennan noted in a different case, Watkins v. Sowders, it is difficult for jurors—impassive observers with no firsthand knowledge of what took place—to be skeptical of an earnest witness who saw a crime with their own eyes and swears to tell the truth in court. Quoting renowned psychology professor and memory expert Elizabeth Loftus, Justice Brennan wrote that “all the evidence points rather strikingly to the conclusion that 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!’” 

By the time jurors file into the courtroom, though, it is far too late to warn them about all the different mistakes that can occur along the way. At that point, a suspect is an indicted defendant, and after confirming and reconfirming that the defendant is the responsible party, the witness has grown comfortable repeating this narrative to others. As a result, they may have formed a “memory” that never took place.

There are simple strategies available to law enforcement for minimizing the risks of these errors, and the report goes through them in detail: For example, whenever possible, police should conduct double-blind lineups and photo arrays, where neither the witness nor the officer administering the procedure knows who the suspect is. If double-blind procedures are impractical—for example, in smaller departments where everyone knows the suspect’s identity—officers can at least use “blinded” techniques, in which the officer cannot see which suspect or suspects the witness is viewing at any given moment. 

So-called filler lineup participants—the people asked to stand next to a suspect in a lineup—should match the elements of the witness’s description of the perpetrator, and not merely look similar to the suspect. The authors also caution against giving witnesses books of mugshots to browse, a practice that may result in witnesses over-committing to their initial identification and being less reliable during subsequent attempts. In 2001, New Jersey Attorney General John Farmer ordered law enforcement agencies to do away with “mugshot-searching” altogether and instead present witnesses with sequential, one-at-a-time lineups. The move, prompted by a U.S. Department of Justice report published two years earlier, made New Jersey the first state to embrace such a shift based on the evolving understanding of memory science. 

Using standardized instructions can reduce the likelihood of tainting the proceedings, too. The report suggests that police issue a series of caveats and reminders before each identification attempt: that the suspect “may or may not be present,” for example, and that “it is just as important to free innocent people from suspicion as it is to identify the guilty.” In 2007, lawmakers in North Carolina passed the Eyewitness Identification Reform Act in an effort to modernize identification procedures throughout the state. The act prescribes a set of initial instructions to be given to witnesses, and requires that law enforcement either conduct identifications using independent administrators who are not involved with the case, or use blinding techniques that prevent administrators from knowing whose face the witness is looking at. 

Once the witness has made an identification, the report’s authors add, police should take one final, critical step: Immediately ask witnesses for a self-assessment of their confidence, and record it without comment. Detectives should also refrain from giving any sort of suggestive feedback, even after the attempt is ostensibly “complete.” No matter what evidence later comes to light, it can be difficult to convince a witness who saw a detective pump his fist in triumph that the answer they gave was anything other than the right one.

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Courtroom ID's, the 'Perry Mason Moment' losing steam

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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Live stream crime: Kitty Genovese Syndrome on steroids

The rape itself was horrific enough. In March, half a dozen boys and young men lured a 15-year-old girl to a house in Chicago and sexually assaulted her there, brutally and repeatedly. But what made this episode singularly appalling was the attackers’ streaming their crime on Facebook Live. From a count posted with the video, investigators deduced that about 40 people watched in real time. Yet not one of the viewers bothered to summon the authorities.

What happened in Chicago may trigger a sense of déjà vu in older Americans who readily recognize the name Kitty Genovese, reported the New York Times. It is more than half a century — long before the advent of Facebook and other forms of social media — since Ms. Genovese was murdered in Kew Gardens, Queens. But as recalled in this final offering in the current series of Retro Report, she endures as a symbol of bystanders’ refusal to get involved, even as a terrible wrong is being committed in front of them and the victim’s desperation is evident.

Retro Report, a series of video documentaries examining major news stories of the past and their continued resonance, harks back to the March night in 1964 when a psychopath named Winston Moseley stalked Catherine Genovese, 28, as she headed home from her job as a bar manager. In two separate attacks, he stabbed her at least 14 times and raped her.

The number of people believed to have witnessed that nightmare was strikingly similar to that of the video-recorded rape in Chicago. A seminal New York Times article said that 38 of Ms. Genovese’s neighbors had watched as the killer went after her and had heard her cry for help. But not one of them called the police.

Later investigations showed that version to have been a gross exaggeration. True, some people ignored the mortally wounded woman’s pleas. But only a few, it turned out, had a clear sense of what was happening, or glimpsed the attacks as they occurred. Many thought the street screams had come from drunks or perhaps quarreling lovers. And two people did in fact phone the police, though not in time to save Ms. Genovese.

(Mr. Moseley, captured five days later during a burglary, confessed to that homicide and to killing two other Queens women. He died last year at 81, having spent his last 52 years in prison.)

But the story of 38 people coldly ignoring a murder beneath their windows had a life of its own. It became emblematic of big-city apathy. The terms “bystander effect” and “Kitty Genovese syndrome” entered the language.

As Retro Report notes, two social psychologists in New York, John M. Darley and Bibb Latané, conducted experiments that led them to posit that Ms. Genovese might have survived had there been fewer witnesses. Numbers can inhibit action, they concluded. “You think that if there are many people who are witness to something that other people certainly already have done something — why should it be me?” Dr. Latané said.

A 2015 article in The Wisconsin Law Review cited studies showing that most instances of school bullying are witnessed by other students and that in nearly one-third of reported sexual assaults, third parties are present.

But for some people it doesn’t take a crowd to do nothing. An infamous case was the 1997 murder of Sherrice Iverson, a 7-year-old girl who was dragged by a young man, Jeremy Strohmeyer, into a casino restroom in Nevada. There, he sexually assaulted and choked her and snapped her neck. A friend of his, David Cash Jr., was at the scene. He saw the evil in progress, but walked away – a moral barrenness reflected in his later comments to The Los Angeles Times: “I’m not going to get upset over somebody else’s life. I just worry about myself first. I’m not going to lose sleep over somebody else’s problems.”

In the age of social media and instant communication, the potential rises for a Kitty Genovese syndrome on steroids. Chicago again provides an example. On Dec. 31, the authorities there say, four young people kidnapped and tortured a mentally disabled teenager, streaming their brutality on Facebook Live. One assailant was so devoid of empathy for the victim that she whined on camera about not having much of a digital audience: “Ain’t nobody watching.”

There is an inherent ambiguity in some situations. As with the Genovese murder, people watching events unfold in a forum like Facebook Live may not be sure what they are seeing or hearing: Is that a real crime or a simulation?

Still, it doesn’t take much imagination to figure out what the philosopher John Stuart Mill might have thought of all this.

“Bad men,” he said in 1867, “need nothing more to compass their ends than that good men should look on and do nothing.”

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The Cautionary Instruction: A rocky start -- Public safety director takes on the DA

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
August 1, 2014
Last week, I wrote about Pittsburgh Public Safety director Stephen A. Bucar’s charge: Lead by example. He said after his confirmation hearing “the way forward is to build leadership that instills respect in the rank and file… [and] reach out to communities that have seen a deteriorating relationship with the department.”
Then his first step as public safety director was to make a questionable challenge to the authority of the district attorney. That won’t do much to boost confidence in the police and criminal justice system. He issued a statement saying that the city police bureau will not adopt practices on eyewitness identification implemented by Allegheny County District Attorney Stephen A. Zappala Jr.
“Although the model is endorsed by certain academic and research facilities, there is dissenting opinion in those same communities that disputes the conclusion that the best practice for eyewitness identification procedure lies with a sequential process rather than a simultaneous process,” Mr. Bucar said.
United States Supreme Court Justice William J. Brennan Jr. wrote in a dissenting opinion more than thirty 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!’”
More than 75,000 prosecutions every year are based entirely on eyewitness identification. Some of those identifications are erroneous.  One study by University of Virginia Law School professor Brandon L. Garrett found that eyewitness misidentifications contributed to wrongful convictions in 76 percent of the cases overturned by DNA evidence.
Even U.S. Supreme Court Justice Sonia Sotomayor has acknowledged the shortcomings of eyewitness identification. 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."
According to the Post-Gazette, Bucar cited debate in the scientific community over the most effective means to utilize eyewitness identification. Nancy Steblay, a leading eyewitness scientist from Augsburg College in Minneapolis, said that’s not the case anymore.
A 2011 review she co-authored reported that the sequential process is superior.
“We have over 70 studies we’ve reviewed and verified, and you see the pattern over and over again for sequential,” Ms. Steblay said. “In an enormous set of studies, you’re always going to find some outliers. But that’s what science does — look for the pattern.”
Zappala is advocating for the sequential process. “Although it’s not perfect, it’s far superior — significantly superior — to the simultaneous procedure,” said Steblay.
In fact, this area of the law is rapidly changing. The Pennsylvania Supreme Court ruled recently that criminal defendants have the right to offer expert testimony about the reliability of eyewitness identification. The decision overturned a 20-year prohibition against using such experts in Pennsylvania.

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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PA Supreme Court authorizes expert testimony on eyewitness identification

The Pennsylvania Supreme Court ruled that criminal defendants have the right to offer expert testimony about the reliability of eyewitness identification, reported The Associated Press.  The decision overturned a 20-year prohibition against using such experts.
The four-justice majority ruled that Pennsylvania will join the great majority of states and federal courts when it comes to letting an expert tell jurors about research into eyewitness testimony.
"Twenty years of advances in scientific study have strongly suggested that eyewitnesses are apt to erroneously identify a person as a perpetrator of a crime when certain factors are present," wrote Justice Debra Todd for the majority. She said it was "beyond serious contention that the statistical evidence on eyewitness accuracy is substantial."
The court ruling outlined the conditions under which the evidence can be allowed and put the decision in the hands of trial judges.
"While we need not precisely define such situations, generally speaking, it would be where the commonwealth's case is solely or primarily dependent upon eyewitness testimony," Todd wrote.
The case involved Benjamin Walker, convicted of a 2005 robbery of two University of Pennsylvania students in Philadelphia, based on the victims' identification of him to police. Walker is serving up to 35 years in prison.
The two dissenting justices argued that a better approach would be to amend the instructions about eyewitness testimony that judges give juries before deliberation. In most cases, the experts will be for the defense, wrote Justice J. Michael Eakin in a dissent joined by Chief Justice Ronald Castille.
"And if experts may opine about identification, why would they not be equally admissible on other peripheral matters, such as witness recollections of time, dates, places, colors, types of cars, clothes, directions and a host of matters which any given witness is likely to confuse?" Eakin wrote. "There being no logical difference, likening this decision to the camel's nose under the tent is not an exaggeration."
Castille defended the ability of jurors to use common knowledge and experience to assess credibility of witness identification.
"Before modern movements in psychiatry and psychology, mankind already had a rich literature laden with insight into humanity," Castille wrote, adding later that "matters affecting human perception and recall are hardly the exclusive and special bailiwick of social science experts."
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Guest Blog: Now you see it, now you don’t: The shortcomings of eyewitness identification

Matthew T. Mangino
Guest Blog, Deliberations
A publication of the American Society of Trial Consultants
March 17, 2014      
             United States Supreme Court Justice William J. Brennan Jr. wrote in a dissenting opinion more than thirty 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!’”
            Convincing yes-- reliable, maybe not...
            More than 75,000 prosecutions every year are based entirely on eyewitness identification. Some of those identifications are erroneous. The fallibility of human memory is not a new concept. In the 1800’s, memory researcher Hermann Ebbinghaus’ “Forgetting Curve” illustrated how quickly memories fade as time passes. Additionally, in 1971, England’s Criminal Law Review Committee stated that relying on eyewitness testimony could lead to false convictions. One study by University of Virginia Law School professor Brandon L. Garrett found that eyewitness misidentifications contributed to wrongful convictions in 76 percent of the cases overturned by DNA evidence.
            Even U.S. Supreme Court Justice Sonia Sotomayor has acknowledged the shortcomings of eyewitness identification. 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."
            Despite this, a number of trial courts have held that experts are not needed to explain eyewitness testimony. They claim that issues such as weapon focus, cross-race identification and post-event contamination are easily understood by the average juror. Jurors are then able to determine an eyewitness’ reliability without the aid of expert testimony.
             Pennsylvania is one of those states. In Commonwealth v. Robinson, 5 A.3d 339 (2010), the defendant sought to offer expert testimony shedding light upon the reliability of an eyewitness in a cross-racial identification. The Superior Court held that the trial court was correct in denying the defendant’s request and properly refused to instruct the jury as to inherent difficulties in making accurate cross-racial identification.
            The Court found that allowing an expert to offer an opinion that cross-racial identification is less reliable than same-race identification would improperly intrude upon the credibility determinations of the jury. The Superior Court held, in light of precedent, “we believe our supreme court would find that proposed testimony (cross-racial identification) equally objectionable.”
            The Pennsylvania Supreme Court has long held that expert testimony from social scientists in the fields related to eyewitness identification — human memory, perception and recall — is improper as it intruded on the jury’s duty to judge the “credibility” of each witness.
            In Commonwealth v. Benjamin Walker, 28EAP2011 the Pennsylvania Supreme Court is being asked to decide two issues: “(1) whether the trial court should have had the discretion to allow the Petitioner to present expert testimony regarding human memory, perception, and recall, and (2) whether the Court should permit expert scientific testimony, whether it be for the defense or prosecution, on how the mind works as long as the testimony has reached general acceptance”.        The fundamental question before the court is the admissibility in Pennsylvania courts of expert testimony on research regarding the reliability of eyewitness identification.
         According to the American Psychological Association website, two students were robbed at gunpoint early one morning. One was hit with the gun while the other got away unharmed. The injured student identified Walker as the perpetrator from a photo lineup and also at trial. The other was unable to make an identification. There were several factors that could have affected the eyewitness: poor lighting, the crime occurred quickly, the presence of a gun, and the fact that the perpetrator was of a different race than the witness. Walker’s attorneys asked the court to allow for an expert to testify about those issues. The requests were denied by the trial court. The case was argued before the Pennsylvania Supreme Court more than a year ago.

Author Snapshot
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. He is the former district attorney of Lawrence County, PA and a former member of the Pennsylvania Board of Probation and Parole. His book The Executioner’s Toll, 2010 is due out this summer. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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GateHouse: Cross-examination often inadequate for eyewitness

Matthew T. Mangino
GateHouse News Service
August 2, 2013

More than 75,000 prosecutions every year are based entirely on eyewitness identification. Some of those identifications are erroneous. The U.S. Supreme Court believes that cross-examination is the panacea to eyewitness misidentification.

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 that were absent during her testimony. 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."

Ultimately, Fonda succeeded in convincing his fellow jurors to acquit the young defendant accused of stabbing his father. Justice prevailed not because of an effective cross-examination — apparently the eyeglasses-less observation at night through a window did not come up during trial — but rather a persistent juror in search of justice won the day.

The 1957 movie raised an issue that is only now beginning to gain traction, the reliability of eyewitness identification.

The U.S. Supreme Court, as recently as last year, reaffirmed that the rules of evidence, jury instructions and most importantly, cross-examination are safeguards that protect an accused from the use of unreliable evidence like inaccurate eyewitness identification.

In "12 Angry Men," cross-examination failed to expose a witness' inability, due to impaired vision, to credibly identify the accused. In the movie, the failed cross-examination probably had more to do with bad lawyering than a fissure in the mechanism of cross-examination.

In real life, things do not always work out like they do in the movies. Jules Epstein, in "The Great Engine that Couldn't: Science, Mistaken Identification, and the Limits of Cross-Examination," wrote that even effective cross-examination can be inadequate to protect an accused wrongfully convicted through the testimony of an eyewitness.

Epstein referred to a passage in James M. Doyle's book "True Witness." Doyle wrote about the trial of Ronald Cotton. In 1984, a college student was assaulted in her apartment by an unknown intruder. Two days later, the victim picked Cotton's photograph out of a photo array. She said Cotton's photograph "looks most like her assailant." Later, the victim hesitatingly picked Cotton out of a lineup and ultimately identified him as her attacker at trial.

Cotton's defense counsel, through cross-examination, unlike in "12 Angry Men," was able to establish "the eyewitness victim, who wore eyeglasses, did not have them on during the assault." The witness later admitted the light source for the identification came from blinds, a bedroom window and lights from a stereo.

Cotton was nonetheless convicted. He was later exonerated through DNA evidence. Epstein argues that "judges and lawyers must disabuse themselves of the notion that cross-examination's great engine has the efficacy to redress and prevent the recurrence of mistaken identification."

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 percent of the cases overturned by DNA evidence.

At least one U.S. Supreme Court Justice, Sonia Sotomayor, has acknowledged the shortcomings of cross-examination. 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."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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The Cautionary Instruction: FBI to review microscopic hair analysis

Matthew T. Mangino
The Pittsburgh Post-Gazette/ Ipso Facto
August 2, 2013

The Cautionary Instruction has periodically examined the fallibility of long accepted forms of scientific evidence used in criminal cases. This blog has explored fingerprint analysis,  bite mark identification and even eyewitness identification. Last month, the FBI announced that the agency will review thousands of old cases in which microscopic hair analysis helped secure convictions.

More than 2,000 cases processed from 1985 to 2000 will be re-examined, including some in which execution dates had been set.

The study will focus on whether analysts exaggerated the significance of their hair analyses or reported them inaccurately. Defendants will be notified and free DNA testing offered if errors are unearthed.

Three hundred and ten individuals have been exonerated through DNA evidence, according to an Innocence Project database, 72 were convicted in part because of microscopic hair evidence.

In addition, as many as 27 prisoners facing the death penalty may have been wrongfully convicted based on microscopic hair analysis.

It is not known how many of the cases involve errors, how many led to wrongful convictions or how many mistakes may now jeopardize valid convictions. Those questions will be explored as the review continues.

Since at least the 1970s, written FBI Laboratory reports typically stated that a hair association could not be used as positive identification. For years some agents went beyond the science and testified that their hair analysis was a near-certain match.

The new review listed examples of scientifically invalid testimony, including claiming to associate a hair with a single person “to the exclusion of all others,” or to state or suggest a probability for such a match from past casework.

FBI Special Agent Ann Todd says "there is no reason to believe the FBI Laboratory employed 'flawed' forensic techniques," adding that microscopic hair analysis is "a valid forensic technique and one that is still conducted at the lab" alongside DNA testing. Todd notes "the purpose of the review is to determine if FBI Laboratory examiner testimony and reports properly reflect the bounds of the underlying science."

“When there’s a problem, you have to face it, and you have to figure out how to fix it, move forward and make sure it doesn’t happen again,” said FBI general counsel Andrew Weissmann.

Although the FBI continues to supports hair analysis, the accuracy of hair analysis is not clear. A 2009 National Academy of Sciences report found no good studies of the technique's error rates. The academy concluded that hair analysis has "limited probative value" and isn't able to pinpoint individual defendants.

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W. Va. looking to create uniform policy for eyewitness identification

West Virginia lawmakers are pushing law enforcement agencies to create uniform rules for obtaining and using eyewitness identification, according to the West Virginia Gazette.

Last month, State Sen. Bill Laird introduced a bill that would require every police department in the state to have a written policy for "lineups."

The bill calls for investigators to keep a written or video record of each lineup that includes the date and time of the lineup, the names of every person in the lineup, and any words the witness uses to describe the person that supposedly committed the crime.

The legislation also strongly suggests that police agencies conduct "blind" lineups, or lineups conducted by an investigator that does not know the identity of the suspect, reported the Gazette.

But while the bill requires departments to have a written policy in place, police agencies can still implement their own protocol.

Eyewitness misidentification is one of the largest causes of wrongful convictions, according to the Innocence Project, a national nonprofit group that uses DNA testing to fight for prisoners who claim innocence.

According to the Gazette, of the first 239 people that the Innocence Project has helped exonerate, 75 percent were victims of witnesses who pointed out the wrong suspect. In most of those instances, the false identification was attributed to either a faulty live lineup, or photo array. During lineups, investigators sometimes give subtle hints to witnesses, either intentionally or unintentionally, that lead them to select the wrong suspect.

To read more: http://wvgazette.com/News/201303100069

PA DAs Assoc. Celebrates 100th Anniversary

Duquesne Law School Symposium Marks Occasion

On Monday afternoon, Duquesne University Law School hosted Prosecution and Public Policy in the 21^st Century, a symposium marking the 100^th anniversary of the Pennsylvania District Attorneys Association.

The symposium was moderated by Supreme Court Justice, and former district attorney, J. Michael Eakin.  The panel consisted of seven prosecutors from across the commonwealth.

The most compelling aspect of the symposium was the tone of the event.  I commented to one of my former colleagues that it was the “softer side” of the district attorneys association.  The panel was asked to look into the future for prosecutors in Pennsylvania and across the county. 

The answers were much different than they might have been even 20 years ago during the “get tough” movement in the criminal justice system.  Montgomery County District Attorney Risa Ferman spoke of using best practices across the board.  With a reduction in resources DAs have to get it right.

Ferman spoke of initiatives in her county like videotaping homicide interrogations and changes in procuring eyewitness identification.

Butler County District Attorney Richard A. Goldinger said at first he had a problem with “helping people that I think are bad people.” But, now he has warmed, in difficult economic times, to reentry services for offenders leaving jail or prison, specialty courts and diversionary sentences.

A question from the audience further probed specialty courts, “Why doesn’t everyone have them?”  Crawford County District Attorney Francis J. Schultz got a laugh when he said, tongue-in-cheek, “We have go to jail court.”  Schultz pointed out that specialty courts are not for every county.  The cost, the work load of small judiciaries makes it very difficult.

The panel stayed clear of controversy, but Dauphin County District Attorney Edward M. Marsico, Jr made an interesting suggestion when asked about limited criminal justice resources.  Marsico suggested that countywide police forces, as opposed to the hundreds of municipal departments, may be an efficient and cost effective approach to policing.

The faculty and staff of Duquesne honored Allegheny County District Attorney Stephen A. Zappala, Jr for his continued support of internships and employment opportunities for law school students and graduates.

The panel also consisted of Washington County’s Eugene A. Vittone and Adams County’s Shawn C. Wagner.

Exonerations continue to grow nationwide

Why do false convictions occur? Victims identify the wrong person; prosecutors withhold exculpatory evidence from the accused; false or misleading forensic evidence points to the wrong person; defendants receive inadequate legal representation; witnesses perjure themselves.

Last May, the National Registry of Exonerations, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, released its first report analyzing 873 exonerations between January 1989 and February 2012. The number of identified exonerations in the registry has grown to 1,050 since the report was issued.

In the 873 cases that were studied, the registry found the most common reasons for wrongful conviction were perjuryor false accusation (51 percent), mistaken witness identification (43 percent) and official misconduct (42 percent).

Ninety-three percent of those exonerated were men, 50 percent were black, 38 percent were white and 11 percent were Hispanic. DNA evidence helped clear 37 percent of them.

To read more: http://www.chron.com/exonerees/essay/

Florida Innocence Commission issues recommendations

In its final report released last week, the Florida Innocence Commission addressed the issues of eyewitness misidentification, false confessions and the lack of evidence preservation, among other mishaps that can wrongfully convict innocent people. Among the recommendations:

• Having photos be shown to a witness one at a time, instead of a “six-pack” lineup, and shown by someone who does not know which photo is the suspect.
• A law requiring police to record all in-custody interrogations.
• Letting juries know when a witness in a trial is a jailhouse informant to be rewarded with a shorter sentence for testifying.

All are solid reforms, but without adequate financial support to the courts all of the commission’s work will end up on a shelf, reported the Miami Herald.

To read more:  http://www.miamiherald.com/2012/07/05/2880818/justice-denied-in-cash-strapped.html

Read more here: http://www.miamiherald.com/2012/07/05/2880818/justice-denied-in-cash-strapped.html#storylink=cpyhttp://www.miamiherald.com/2012/07/05/2880818/justice-denied-in-cash-strapped.html

Eyewitness ID study: Deliberation is dangerous

More than 75,000 prosecutions every year are based entirely on eyewitness identification. Some of those identifications are erroneous. The overwhelming majority of eyewitness errors aren't conscious or intentional. They are the inevitable side effects of the remembering process, reported the Wall Street Journal.

A new paper by Neil Brewer, a psychologist at Flinders University in Australia,  focused on the police lineup, in which witnesses are asked to pick out a suspect from a collection of similar looking individuals.

Normally, witnesses are encouraged to take their time and carefully consider each possible suspect. But Dr. Brewer knew that strong memory traces are easier to access than weak and mistaken ones, which is why he only gave his witnesses two seconds to make up their minds. He also asked them to estimate how confident they were about the suspects they identified, rather than insisting on a simple yes-no answer, reported the Wall Street Journal.

To test this procedure, Dr. Brewer and his colleagues asked 905 volunteers to watch a series of short films showing such crimes as shoplifting and car theft. The subjects then looked at 12 portraits, only one of which was the actual suspect. According to Dr. Brewer's data, his version of the lineup led to a large boost in accuracy, with improvements in eyewitness performance ranging from 21% to 66%. Even when subjects were quizzed a week later, those who were forced to choose quickly remained far more trustworthy.

According to the Wall Street Journal, the larger lesson is that, when it comes to human memory, more deliberation is often dangerous. Instead of simply assessing our familiarity with a suspect's face, we begin searching for clues and guidance. Sometimes this involves picking the person who looks the most suspicious, even if we've never seen him before, or being swayed by the subtle hints of police officers and lawyers. As a result, we talk ourselves into having a memory that doesn't actually exist.

To read more:  http://online.wsj.com/article/SB10001424052702303815404577334040572533780.html?mod=WSJ_hp_LEFTTopStories

Professor Epstein examines state of eyewitness identification law

Jules Epstein an associate professor of law at Widener University School of Law wrote in The Legal Intelligencer about the state of the law regarding eyewitness identification.

Nationally, legislative action, court decisions and some law enforcement initiatives have led police in many states to adopt "best practices" in eyewitness investigation. However, Pennsylvania seems to lag behind many states.

Next month, the Pennsylvania Supreme Court will hear Commonwealth v. Walker, where the principal issue is whether Pennsylvania will permit expert witness testimony in eyewitness cases. According to Epstein, "Since the 1990s, the high court has barred such evidence as unnecessary and as an improper comment on witness credibility; and the arguments being pressed now are that such evidence is necessary, as too many jurors are unaware of how mistaken identifications can occur and what factors support a conclusion that an identification is reliable, and that such expert evidence is no more a comment on credibility than an ophthalmologist who explains about a person's vision or a toxicologist discussing the impact of drinking alcohol on the ability to operate a car."

Epstein concludes, “In 1899 the Pennsylvania Supreme Court approved a jury instruction that "questions, concerning the identity of persons, animals and vehicles are liable to confusion, uncertainty and mistake." Those questions persist today, nationally and in this commonwealth; and it is in cases such as Walker that it will be determined how well trials can successfully answer them.” 

To read more: http://www.blogger.com/goog_2010861156

Cross-Examination and Inaccurate Eyewitness Identification

The Pennsylvania Law Weekly
February 14, 2012

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."

Ultimately, Fonda succeeded in convincing his fellow jurors to acquit the young defendant accused of stabbing his father. Justice prevailed not because of an effective cross-examination — apparently the eyeglasses-less observation at night through a window did not come up during trial — but rather a persistent juror in search of justice won the day.

The 1957 movie raised an issue that is only now beginning to gain traction, the reliability of eyewitness identification.

The U.S. Supreme Court recently decided Perry v. New Hampshire . The case involved the prosecution of Barion Perry, who was convicted of theft based on the testimony of a woman who said she saw the theft and described the suspect as tall and black. Then, without prompting from the police, she went to her window and identified Perry, who was standing outside next to a police officer. The identification was used to convict Perry, despite objections from his lawyers that seeing him next to the police officer could have unfairly influenced the woman's identification, the Washington Post reported.

Prior to Perry , judges were required to screen testimony for reliability when police were suspected of using suggestive tactics. Prescreening was to deter police from creating "suggestive circumstances" that point to a specific suspect, although some evidence obtained through suggestive practices was still admissible.

Perry's lawyer wanted the court to expand the prescreening practice to all identifications made under any suggestive circumstance, not just those created by the police.

"The potential unreliability of a type of evidence does not alone render its introduction at the defendant's trial fundamentally unfair," Justice Ruth Bader Ginsburg wrote on behalf of the majority in Perry . The sole reason to impose a judicial prescreening process is to deter police from creating suggestive circumstances that point to a specific suspect.

"When there is no improper police conduct there is nothing to deter," Ginsburg added. The Perry court maintained the status quo.

Ginsberg's opinion noted that the rules of evidence, jury instructions and most importantly, cross-examination are safeguards that protect an accused from the use of unreliable evidence like inaccurate eyewitness identification.

In "12 Angry Men," cross-examination failed to expose a witness' inability, due to impaired vision, to credibly identify the accused. In the movie, the failed cross-examination probably had more to do with ineffective assistance of counsel than a fissure in the mechanism of cross-examination.

In real life, things do not always work out like they do in the movies. Jules Epstein, in "The Great Engine that Couldn't: Science, Mistaken Identification, and the Limits of Cross-Examination," wrote that even effective cross-examination can be inadequate to protect an accused wrongfully convicted through the testimony of an eyewitness.

Epstein referred to a passage in James M. Doyle's book, "True Witness." Doyle wrote about the trial of Ronald Cotton. In 1984, a college student was assaulted in her apartment by an unknown intruder. Two days later, the victim picked Cotton's photograph out of a photo array. She said Cotton's photograph "looks most like her assailant." Later, the victim hesitatingly picked Cotton out of a lineup and ultimately identified him as her attacker at trial.

Cotton's defense counsel, through cross-examination, unlike in "12 Angry Men," was able to establish "the eyewitness victim, who wore eyeglasses, did not have them on during the assault." The witness later admitted the light source for the identification came from blinds, a bedroom window and lights from a stereo.

Cotton was nonetheless convicted. He was later exonerated through DNA evidence. Epstein argues that "judges and lawyers must disabuse themselves of the notion that cross-examination's great engine has the efficacy to redress and prevent the recurrence of mistaken identification." The Perry decision has essentially left, in part, cross-examination as the primary means to expose a suggestive eyewitness identification that did not directly involve the police. Thirty-five years ago, the U.S. Supreme Court established a test for determining when due process requires suppression of an out-of-court identification produced by suggestive police conduct. In Manson v. Braithwaite , instead of creating a rule of exclusion the court required judicial prescreening of the identification to determine if the suggestive procedure was reliable when judging the totality of the circumstances.

The Perry court reiterated the rule in Braithwaite . Once the conduct is determined not to be the product of the police, no matter how suggestive, the inquiry is over. It is not about a search for justice.

Some would suggest that the suppression of incriminating evidence due to police misconduct is also not in the interest of seeking justice. The search of a home without a warrant is the type of police conduct that must not be condoned regardless of what nefarious conduct is interrupted, even though, in essence, justice is denied the state.

Here, the absence of police misconduct seems to deny justice to the accused. Suggestive eyewitness identification should be subject to a judicial prescreening whether or not it was initiated by the police. To do otherwise seems to exclude a layer of protection easily accessible to an accused.

The Perry decision seems wholly inadequate in light of the growing body of scientific evidence supporting a closer look at eyewitness identification.

Since 1977, advances in the social sciences and technology have cast a new light on eyewitness identification. Since Braithwaite , 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 percent of the cases overturned by DNA evidence.

The Supreme Court ignored the research and acknowledged no shortcomings in the system currently in place to challenge eyewitness identification. Only Justice Sonia Sotomayor acknowledged a potential problem with the status quo. In her dissent, Sotomayor acknowledged that the majority had turned a blind eye toward its own precedents and the abundance of scientific research, The New York Times reported. "This court has long recognized," she wrote, "that 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."

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