Tuesday, August 23, 2011

Your lying eyes...

We've posted before about the shortcomings of eyewitness identifications. Basically, we know that false eyewitness identifications have played damning roles in the majority of wrongful convictions. And given how we have come to know these convictions are wrongful, due to DNA testing, we know that the second prong of the legal test used to weigh the credibility of eyewitness identifications is complete horseshit.

As we noted before:

The court set up a two-pronged analysis. First, was the eyewitness
identification unduly suggestive? Crap like roll-up IDs (driving a victim up to
a Defendant in handcuffs or vice-versa, single-person show-ups, single-person
photo IDs, improper photo arrays (all white, but one black person in lineup when
the suspect is alleged to be black) are pretty much disfavored automatically.
However, the Biggers two-pronged test says just because the procedure used for
the identification was unduly suggestive, it doesn't mean it's not admissible.
Courts must then move to the second prong of the Biggers test, which is to
consider the "totality of the circumstances." How does one do that? The court said you do that by considering the following factors: 1) the opportunity
of the witness to view the criminal at the time of the crime; 2) the witness’
degree of attention; 3) the accuracy of the witness’prior description of the
criminal; 4) the level of certainty demonstrated by the witness at the
confrontation; 5) the length of time between the crime and the confrontation.

Due to the biological nature of the DNA evidence that has led us to
uncover most wrongful convictions we know of, a large majority of these DNA
exonerations deal with cases involving sexual assault. In other words, in the
vast majority of these cases where we know mistaken eyewitness identification
has played a major role, the mistaken eyewitnesses have most likely: 1) been in
close proximity to the criminals; 2) experienced heightened degrees of
attention; and, 3) had ample opportunity to observe the criminals. Since these
cases resulted in convictions, we can assume that the degree of certainty with
which these eyewitnesses made their misidentifications was high. In short,
science has proven the second prong of Biggers and its consideration factors

So it is with great anticipation that we relay the United States Supreme Court is set to revisit the issue of eyewitness identification, some 34 years after their last look at the issue. How long ago was the last case of Manson v. Brathwaite decided? 1977. If you want to know how long ago that was culturally for our country, read the first 8 words of the opinion: "Glover, a trained Negro undercover state police officer..." A "trained Negro undercover state police officer?" What a novelty!

Seriously, eyewitness identification is an area of the criminal justice system that must be revisited. As a recent NY Times article documented:

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

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.

Many of those witnesses were as certain as they were wrong. “There is absolutely no question in my mind,” said one. Another was “120 percent” sure. A third said, “That is one face I will never forget.” A fourth allowed for a glimmer of doubt: “This is the man, or it is his twin brother.”

In the past 30 years, More than 2,000 studies on the topic have been published in professional journals in the past 30 years. The problem is that the unreliability of eyewitness identifications tends to be exceeded only by the weight which juries give them. In Watkins v. Sowders, a 1981 case, Justice William J. Brennan, Jr. remarked in his dissent 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."

Justice Brennan is right. Given the weight juries afford eyewitness identifications, it is more than past time for the Court to reconsider the gatekeeper role judges should play in admitting such testimony. As we argued to a judge a little more than a year ago who asked us if we were trying to argue to the court that eyewitness testimony should be looked at as de facto unreliable: "I'm not telling the court that...science is."

Hattip, Law and Baseball.

1 comment:

Sandra Sturkie said...

In my early days as a Forensic Interviewer for suspected child abuse cases, eye witness testimony and victim recall of events were always a concern in the effort to seek justice. Jeopardy in the Courtroom,though an old book now, by Ceci and Bruck did a great job (for a non-attorney like myself) to keep those involved in any part of the process focused on unbiased fact finding.