September 20, 2011
Eyewitness testimony is often thought of as the best and most reliable evidence presented during a criminal trial. Thirty years ago, Supreme Court Justice William J. Brennan Jr. wrote: "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!'"
However, following the publication of hundreds of scholarly studies examining eyewitness identification this widely accepted form of evidence is being called into question.According to Reason magazine, psychologists have long known about the fallibility of human memory. As far back as 1971, England's Criminal Law Review Committee warned that over-reliance on eyewitness testimony could lead to false convictions.
This is not to suggest that eyewitness identification is completely unreliable. In fact, eyewitness testimony remains the most common form of evidence used to prosecute alleged offenders. However, concern has grown as it became clear that mistaken identifications have played a significant role in wrongful convictions.
In "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," University of Virginia School of Law professor Brandon L. Garrett wrote that 190 of the 250 convictions overturned by DNA evidence where the result of faulty eyewitness identifications.
The issue of eyewitness identification is in the spotlight as a result of a recent New Jersey Supreme Court decision and the U.S. Supreme Court decision to review eyewitness identification.
New Jersey's Supreme Court decided last week to overhaul the state's rules for how judges and jurors evaluate evidence from police lineups, reported The New York Times . The decision could help transform the manner in which police officers administer lineups — a fundamental aspect of police work.
In its ruling, State of New Jersey v. Henderson , the New Jersey Supreme Court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures have limitations and can result in unintentional misidentifications. The decision provides a framework for defendants to challenge eyewitness evidence in criminal cases. The court, for the first time, attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.
The U.S. Supreme Court has ruled that the due process clause requires judges to exclude, at times, eyewitness testimony based on unreliability. In its 1977 decision Manson v. Brathwaite , the U.S. Supreme Court held that the trial court must first decide whether an eyewitness identification was in fact impermissibly suggestive. If the court finds that the procedure was impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court must focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.
As the Supreme Court explained, "reliability is the linchpin in determining the admissibility of identification testimony." To assess reliability, the trial court must consider five factors:
• The opportunity of the witness to view the criminal at the time of the crime.
• The witness's degree of attention.
• The accuracy of his prior description of the criminal.
• The level of certainty demonstrated at the time of the confrontation.
• The time between the crime and the confrontation.
The U.S. Supreme Court will take up the issue of eyewitness identification this fall. In Perry v. New Hampshire , the Supreme Court must determine if due process protections apply to all eyewitness identifications made under suggestive circumstances or just those identifications made when the suggestive circumstances were the result of police actions.
The special master appointed by the New Jersey Supreme Court found that science has proven that memory is malleable. A substantial body of eyewitness identification research has revealed that an array of variables can affect and dilute memory and lead to misidentifications.
The New Jersey Supreme Court agreed with the special master that "[t]he science abundantly demonstrates the many vagaries of memory encoding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications."
Some states have instituted changes to their eyewitness identification procedures. In 2001, New Jersey's attorney general issued a memorandum to all law enforcement agencies establishing a statewide protocol for eyewitness identifications. In 2005, Wisconsin's attorney general issued a similar set of identification guidelines recommending, among other things, "double-blind, sequential photo arrays and lineups with non-suspect fillers chosen to minimize suggestiveness, non-biased instructions to eyewitnesses, and assessments of confidence immediately after identifications."
North Carolina was the first state to pass legislation mandating, among other things, pre-lineup instructions and blind and sequential lineup administration. The special master cited Illinois, Maryland, Ohio, West Virginia, and Wisconsin as having passed similar laws regarding lineup practices.
Pennsylvania law regarding eyewitness identification seems to have lagged behind other jurisdictions.
In the state Supreme Court case Commonwealth v. Robinson , the defendant sought to offer expert testimony shedding light upon the reliability of eyewitness identifications. The court noted that the use of expert testimony to challenge eyewitness identification had already been rejected in Pennsylvania. The only new wrinkle with Robinson was the issue of cross-racial identification. The appellant argued that the victim, who was white, would have greater difficulty identifying an African-American suspect.
The court found that allowing an expert to testify that a cross-racial identification is less reliable than a same-race identification would improperly intrude upon credibility determinations that remain the sole province of the jury.
However, change may be coming in Pennsylvania with the regard to the use of expert witnesses. According to The Philadelphia Inquirer , this past March a state Superior Court panel ruled in Commonwealth v. Alicea , that lawyers could use an expert to explain to a jury why some people are especially vulnerable to being pressured into confessing to a crime they did not commit.
The Superior Court ruled that the testimony of an expert on police interrogation and false confessions would not infringe on the jury's ability to assess the credibility of Alicea's claim of a coerced confession. Judge Mary Jane Bowes wrote, "Even those jurors who are aware of police interrogation techniques, or believe that they are aware by watching media and television are unlikely to understand how these methods can lead to an innocent individual confessing."
Establishing evidence-based policies that govern the interaction between law enforcement and eyewitnesses provides the most promising means to avoid eyewitness misidentification and wrongful conviction.
Many municipal police departments in Pennsylvania have adopted at least some reforms as they relate to eyewitness identification. However, those reforms need to be adopted statewide and mandated for every police department in the commonwealth.
Matthew T. Mangino is the former district attorney of Lawrence County, Pa. You can read his blog, The Cautionary Instruction, every Friday at the Pittsburgh Post-Gazette legal page Ispo Facto. Contact him at www.mattmangino.com.
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