“There is almost nothing more convincing than a live human being who takes the stand . . . and says, ‘That’s the one!’
It turns out eyewitness IDs are often unreliable. When the Supreme Court considers the issue next month, it could give judges more authority to challenge them.
The Supreme Court
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James Bain spent 35 years in prison for rape. The key evidence at his trial in Florida in 1974 was a positive identification given by the victim during the kind of police lineup that anyone who’s seen an episode of Law & Order would recognize.
But in 2009, DNA testing proved Bain’s innocence, and he was released at age 54. The victim’s own eyewitness account, it turned out, was wrong.
Every year in the U.S., more than 75,000 eyewitnesses identify suspects in criminal investigations. Though juries put enormous weight on them, those identifications prove incorrect about a third of the time, a long list of studies suggest.
That research and the growing use of DNA technology—which has led to the release of hundreds of exonerated prisoners since it was first used in 1989—have more and more legal experts questioning the reliability of eyewitness testimony.
Next month, the Supreme Court will consider what the Constitution has to say about eyewitness evidence when it hears oral arguments in Perry v. New Hampshire. The last time the Court took a hard look at the issue was in 1977, when DNA testing didn’t even exist, and the scientific understanding of human memory was much less advanced.
More than 2,000 studies in recent years have shown that it’s risky to base a conviction on a witness’s identification of a stranger. Memory is not a videotape: It’s fragile at best, worse under stress, and subject to outside influence.
The critical problem with false identifications of criminal suspects is that they often lead to wrongful convictions. Of the first 250 DNA exonerations, 75 percent involved eyewitnesses who turned out to be wrong, according to Brandon Garrett, a law professor at the University of Virginia. Many of the witnesses in those cases had expressed certainty about what they had seen.
In August, the New Jersey Supreme Court issued sweeping new rules affecting eyewitness testimony and making it easier for defendants to challenge witness evidence.
“Study after study revealed a troubling lack of reliability in eyewitness identifications,” New Jersey Chief Justice Stuart Rabner wrote. “From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real.”
The new rules apply only in New Jersey but are likely to have an impact nationally, since the state is considered a trailblazer in criminal law.
When the U.S. Supreme Court takes up the issue next month, it will consider under what circumstances to give judges more authority to challenge eyewitness identifications. (The Court will not consider whether witness IDs are constitutional.)
Regardless of what the Justices decide, changing how police departments handle eyewitnesses will be hard, experts say.
Around the country, many police officers remain skeptical about the research and bridle at the idea that they could influence eyewitnesses, even unintentionally.
In many places, lineups are conducted in the same way they have been for decades, although these days they often involve photos, not actual people.
Only two states—New Jersey and North Carolina—currently mandate the two practices researchers recommend to reduce misidentifications: having lineups administered by someone who doesn’t know who the suspect is (so the witness cannot be accidentally influenced), and presenting mugshots one at a time, rather than as a group to pick from. A few large police departments, like those in Dallas and Denver, have adopted similar policies to reduce misidentifications.
Eyewitnesses play such a central role in criminal cases that any changes in procedure could have monumental effects on the criminal justice system.
“There is almost nothing more convincing,” Justice William Brennan Jr. wrote in a 1981 case, “than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’ ”
There is often little or no counterbalance to the impact that vivid witness accounts have on juries. In a growing number of cases, it’s been up to DNA technology to prove witnesses wrong—sometimes many years or even decades later.
Says Stephen Saloom, policy director of the Innocence Project, a group that works to exonerate the innocent, “Every time you wrongfully convict an innocent person, you have failed to convict the real person, who will possibly go on to commit more crimes.”