By Brittany Heyd, J.D. Candidate

Study after study shows that eyewitness identifications are unreliable and result in hundreds of wrongful convictions. Yet the Supreme Court standard for admitting eyewitness testimony in court is over thirty years old, and it fails to take into account studies conducted over the past decade. Hopefully that will change this term when the Supreme Court hears Perry v. New Hampshire, where the defendant challenged whether eyewitness identification at the scene of the crime may be admitted at trial. The Supreme Court should abandon its current two-prong approach focused on police misconduct and adopt at least some of the prescriptions outlined recently by the New Jersey Supreme Court in a totality of the circumstances analysis.

The Problem

Recent studies establish the danger of eyewitness identification. The Innocence Project reported that out of over 230 people who have been exonerated through DNA testing in the United States after serving an average of 12 years in prison, 75% percent of them were wrongful convictions that involved an eyewitness misidentification. Another study found that 64% of wrongful convictions involved at least one misidentification.[1] Even more convincing is a 1996 study conducted by the Department of Justice, which found that in the majority of the 28 DNA exoneration cases studied, eyewitness misidentification served at the most compelling evidence at trial.[2]

Psychologists have identified a variety of factors that explain eyewitness misidentification that are independent of law enforcement misconduct.[3] These include:

the passage of time between observation and identification; the level of stress experienced by the witness during the crime; the duration of the witness's exposure to the perpetrator; the distance between the witness and the perpetrator; the perpetrator's brandishing of a weapon at the crime scene; and racial differences between the witness and the perpetrator.”[4]

Cross-examination can do little to discredit an eyewitness who is being entirely truthful but is nevertheless mistaken because “research shows that juries tend to ‘over believe’ eyewitness testimony” and jury instructions warning of the testimony’s unreliability are typically ineffective.[5]

Current Standard

In order to satisfy Fifth and Fourteenth Amendment Due Process, the Supreme Court developed a two-prong test to determine when an eyewitness identification is inadmissible at trial. The first prong is whether police identification procedures were impermissibly suggestive.[6] If so, the eyewitness identification is still admissible if it is “reliable” in spite of police suggestiveness, which is based on the five Biggers factors: (1) the “opportunity of the witness to view the criminal at the time of the crime”; (2) “the witness's degree of attention”; (3) “the accuracy of his prior description of the criminal”; (4) “the level of certainty demonstrated at the time of the confrontation”; and (5) “the time between the crime and the confrontation.”[7] In Mason v. Braithwaite, the Court held that there was no per se exclusionary rule for suggestive policy tactics – and that “reliability is the linchpin in determining the admissibility of identification testimony.”[8]

New Jersey Standard

In Henderson, the New Jersey Supreme Court effectively threw out the Supreme Court test in favor a totality of the circumstances test that accounts for factors that are within state control, plus personal and environmental considerations.[9] The factors within state control are: (1) providing for blind control; (2) Pre-identification instructions; (3) Lineup instructions; (4) avoiding feedback; (5) avoiding the recording confidence; (6) multiple viewings; (7) avoiding show ups; (8) avoid discussion among other eyewitnesses; (9) evaluating other identifications made.[10] The estimator (personal and situational) variables are: (1) stress; (2) weapon focus; (3) duration; (4) distance and lighting; (5) witness characteristics; (6) characteristics of perpetrator; (7) memory decay; (8) race bias; (9) opportunity to view the crime; (10) degree of attention; (11) accuracy of prior description of the criminal; (12) level of certainty demonstrated at the confrontation; (13) the time between the crime and the confrontation.[11] After evaluating these factors in a totality of the circumstances analysis, the judge decides whether, based on reliability as the “linchpin,”[12] the eyewitness identification can be admissible at trial.[13]

This case at hand: Perry v. New Hampshire

In Perry, the defendant challenges the admissibility of an eyewitness identification provided by a woman who had seen, from her second or third floor apartment, “a tall black man” break into her neighbor’s car and take a large box.[14] While talking to the police officer from her apartment, the woman looked out her window and saw Mr. Perry, and said “it was the man that was in the back parking lot standing with the police officers.”[15]Because police procedures were not unnecessarily suggestive and outside the control of the police, there was no reason to evaluate the reliability of the identification, and the trial court ruled that the identification was admissible.[16]

How should the Court rule?

This case points out how suggestiveness can occur completely outside of police control. The officer could not prevent the fact that the eyewitness looked out the window and saw Mr. Perry with police officers. Under current law, the court never gets to the question of identification reliability at all.

Braithwaite was the last major case at the Supreme Court addressing this issue – and it used “reliability as the linchpin when determining the admissibility of identification testimony” to admit an identification even when police behavior was impermissibly suggestive.[17] Justice Blackmun explained that three interests were to be considered in coming to this conclusion: the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability, to deter police misconduct, and the effect on the administration of justice.[18]

All three of these factors sway in favor of a totality of the circumstances test that takes into account at least some of the factors outlined in Henderson. First, because the witness providing the identification thinks she is telling the truth, the jury is more likely to believe her even when she is mistaken.[19] This provides an extra incentive for making sure the identification has aspects of reliability before it is presented to the jury. Second, a totality of the circumstances test would not only deter police from misconduct, but also encourage police to establish procedures for making sure that identifications are actually reliable—like having an uninvolved, neutral office interacting with witness identifications. Third, the effect on the administration of justice would be great.  This test would prevent a number of wrongful convictions, but would still allow reliable testimonies to go forward and not let the guilty go free.

If reliability is the linchpin of determining when identifications are admissible at trial and the standard for Due Process is that of fairness,[20] the Court should take these factors into account and create a system that actually allows reliability of the identification to be the test.