An Eye for an Eye (Update)

There’s a tingle in the air as talk spreads that the Supreme Court will consider eyewitness identification when it hears Perry v. New Hampshire, the first the court will take a “hard look” at the issue since Manson v. Brathwaite in 1977.

Adam Liptak talks about this in his  New York Times Sidebar column (yes, Liptak’s still around).

“There is almost nothing more convincing,” Justice William J. Brennan Jr. wrote in a 1981 dissent, quoting from a leading study, “than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’ ”

But of course, eyewitness identification has been the subject of many studies in the past 30 years, all of which show that it’s effectiveness is only trumped by its unreliability.

Every year, more than 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are to wrongful  wrong about a third of the time, a pile of studies suggest.

Mistaken identifications lead to wrongful convictions. Of the first 250 DNA exonerations, 190 involved eyewitnesses who were wrong, as documented in “Convicting the Innocent,” a recent book by Brandon L. Garrett, a law professor at the University of Virginia.

Of course, the eyewitnesses were absolutely certain in their identifications.  And the juries believed them. And almost always do.  How can you doubt the nice witness who says, “I will never forget that face”?  Even knowing how deeply flawed such testimony can be, it’s compelling.  And nearly impossible to challenge.

The only scrutiny that now applies to these identifications relates to those initially made under “unduly suggestive circumstances,” meaning that the suspect is shown to the eyewitness with a neon sign over his head, “this is the guy who did it,” or in a line-up where he’s the only black guy among a group of white men wearing priest collars.  Even then, it’s only suppressed where the prosecution can’t prove that the witness’ memory as eyewitness is so awful that there’s no independent basis for the ID.  It’s a tough burden.

Will the Supreme finally grab the bull by the horns and address the fact that eyewitness identification is at the heart of more wrongful convictions than any other type of evidence?  Well, here’s  the issue coming before the court:


When a witness in a criminal case identifies a suspect out-of-court, under suggestive circumstances which give rise to a substantial likelihood of later misidentification, due process requires the trial judge to determine whether the out-of-court identification and any subsequent in-court identification are reliable before either may be admitted into evidence.

Question: Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as held by the First Circuit Court of Appeal and other federal courts of appeal, or only when the suggestive circumstances were orchestrated by the police, as held by the New Hampshire Supreme Court and other courts?

Could the issue get much smaller?  Granted, non-police arranged identifications are a fairly common occurrence, with the eyewitness stumbling upon a person on the street (or from her apartment window, as happened in Perry) who looks like the person who did ’em the dirty.

The current state of the law, under Neil v. Biggers , is that only police arranged identifications are subject to scrutiny.  The unfortunate premise is that suppression of a bad ID is to teach the cops a lesson, a la the exclusionary rule, as opposed to making sure that innocent people aren’t convicted on bad identifications.  Yet again, the gatekeepers of evidence don’t concern themselves with keeping bad evidence out, but only with smacking the hands of law enforcement for being the enablers of bad evidence.

While there are a number of amici, like the American Psychiatric Association , who are trying to slide through the side door the research challenging the underlying reliability of eyewitness identifications, hoping to have the Supremes require that courts scrutinize all identification procedures for reliability under the due process clause, the likelihood of the court seizing the opportunity to make a big ruling, one that addresses the inherent unreliability of IDs, or the procedures that are still being used which we know to contribute to erroneous identifications, like the typical line-up procedure instead of a double-blind.

Will there finally be some relief from incredibly powerful and yet inherently unreliable eyewitness identifications?  Don’t hold your breath.  The Supreme are barely capable of making a decision that provides a complete answer to the question before them, no less a broader rule that actually provides a framework for the courts to use going forward. 

Under the guise of judicial modesty, expect the most narrow ruling possible, and a refusal to acknowledge that any question exists but that eyewitness identification is the most powerful evidence available.  After all, without it, a vast number of prosecutions would fail, and defendants be acquitted.  That would include the guilty as well as the wrongfully convicted innocent, and we can’t let all those bad people walk the streets when we know they’re guilty as sin.

And if some innocent people are convicted because of the absolute certainty of the mistaken eyewitness, the court will take comfort that the mistake can be corrected by some appellate or habeas court later.  Hopefully before they’re executed.

Update:  And ironically, today the New Jersey Supreme Court  dealt a blow to bad eyewitness IDs:

New Jersey’s highest court ordered changes today to the way eyewitness identifications are used in court, saying the current system is not reliable enough, fails to deter police misconduct and overstates jurors’ ability to evaluate the evidence.

Currently, a defendant has the burden of proving there was undue suggestion during the identification process. That won’t change. But the court has ordered that when a defendant can show some evidence of suggestiveness by police, a pretrial hearing must be held to explore it.

The court also requires a system be developed to better explain to juries the potential flaws with eyewitness identifications.

It’s not a cure, nor does it cover all the inherent evils, but it’s a darn good start and better than we can anticipate from the Supremes.

H/T Ambitious Blondes

8 thoughts on “An Eye for an Eye (Update)

  1. Billy

    Last week, Turner Classic Movies ran “We Want to Live,” a 1939 Henry Fonda, Maureen O’Sullivan,and Ralph Bellamy picture based on mistaken police station ID resulting in two men landing on death row. While I watched the movie I was struck by how relevant the issue of misidentification still is. It’s chilling to think of how many men and women have gone to their graves as a result of mistaken identity and law and order politics foreclosing the door to timely review.

  2. A Voice of Sanity

    Search for “Ivan Henry” “B.C. man acquitted on decades-old rape convictions”. Take note of the ‘official’ line up photograph included. (No links included here).

    “The appeal court said the trial judge erred by instructing jurors they could find Henry guilty because of his reluctance to participate in a police lineup in 1982 and that the instructions on the proper identification of a perpetrator were inadequate. Henry represented himself at the original trial.

    It also ruled the charges should have been divided into separate trials and a mistrial should have been declared when the Crown abandoned an application for jury instruction.

    The court ruled any of the errors would require a new trial if considered alone but that evidence against Henry as a whole was incapable of proving the element of identification on any of the 10 counts, and thus the verdicts were unreasonable.”

    26 years of unreasonableness.

  3. SHG

    Because there aren’t enough examples in the 190 death penalty exonerations in the United States to make the point without resorting to Canada? 

  4. A Voice of Sanity

    Because you really need to look at the photograph in this case (which was the only real ‘evidence’). Then you smack yourself upside the head and say very bad words.

    I’d post a link but I know you hate those. And a quick Google will find it.

  5. SHG

    Yes, I saw that he was held by a cop in a choke hold during the line-up. It’s ridiculous. Got it.

    Here’s the newsflash: Bad stuff happens all the time. This at least was overt. When it’s not flagrant so that it’s brutally clear to everybody that it’s a bad ID, but is still a bad ID and results in a wrongful conviction, it still puts an innocent defendant in prison.  Except there’s no outrageous picture, just another mundane, run of the mill, wrongful conviction.

    Nonlawyers are outraged by the obvious and outrageous.  Criminal defense lawyers deal with ordinary injustice.  Every case doesn’t have a cool picture, but just another human being. Without the cool picture, no one cares and nonlawyers can’t tell that something is wrong, but it’s still an innocent guy in prison. Got it?

  6. A Voice of Sanity

    “Nonlawyers are outraged by the obvious and outrageous.”

    Shrug. This is “Doctor cuts off wrong leg” stuff. But I’m just as offended by the lynch mob attitude of the public. Based on the state’s case, I concluded that Casey Anthony is factually innocent. That doesn’t seem to be an opinion widely held. I hold the same opinion of a number of other cases where the public is “sure they’re guilty”.

    Perhaps people get the legal system they deserve.

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