By Hanna Lundqvist, J.D. Candidate

On Wednesday, September 21, 2011, at 11:08PM, Troy Davis was executed by the State of Georgia for the murder of an off-duty police officer. At his trial, nine eyewitnesses testified to Davis’ guilt – seven have recanted or changed their testimony, which was unquestionably influenced by police suggestion.[1] While the case has drawn public attention to the failures of the death penalty system in the United States, it is also notable for highlighting the weaknesses, perhaps even unconstitutional failings, of eyewitness identifications. The execution went forward after the Supreme Court refused to grant a stay following four hours of deliberation, an unusually long time.[2] The Supreme Court has observed that “almost nothing is more convincing” to a jury than an eyewitness’ testimony.[3] However, the Court will not consider the subject until November 2, when it hears argument in Perry v. New Hampshire.[4] Unfortunately, that is too late for Troy Davis.

Perry v. New Hampshire will be the first time the Supreme Court has considered the constitutionality of eyewitness testimony in 34 years. The last time it looked closely at this issue, in Manson v. Braithwaite, the Court based the admissibility of the testimony on the concept of reliability, which it defined as a multi-factor balancing test.[5] The factors may appear to be sensible – they include: the opportunity of the witness to see the offender when the crime was committed; the witness’ attentiveness; the accuracy of any prior description; the level of the witnesses’ certainty; and the time between the crime and the identification. These factors are then weighed against the “corrupting effect” of the identification to determine if the admission satisfies Due Process.[6] However, the factors do not explicitly account for identifications tainted by suggestion, which can easily occur during police investigations, regardless of any untoward intent by the officers. Though judges are instructed to balance the factors against the testimony’s potential effect, in practice, these identifications are almost always admitted.[7] In Manson, the Court intimated that unduly suggestive identifications might violate Due Process, but it did not consider the question further.[8]

Since Manson, scientific exploration of the reliability of eyewitness testimony and human memory has exploded, with more than 2,000 professional studies in the past 30 years.[9] These studies have re-defined our understanding of human memory, and identified problems with eyewitness testimony including memory delay and contamination. They have also highlighted cross-racial identifications and identifications in crimes where weapons were present as particularly troublesome.[10] Unfortunately, juries continue to believe that human memory “works like a video recording,” making mistaken eyewitness identifications particularly devastating, as Justice Brennan noted even in 1981.[11] There is also an overwhelming amount of statistical evidence supporting the unreliability of eyewitness testimony. In the first 250 cases where DNA exonerated the “guilty” man, 190, or 73%, were cases that relied on eyewitness testimony – the witnesses in those 190 cases were just plain wrong.[12] Even worse, many of those witnesses were completely certain about their identifications, casting considerable doubt on the Court’s inclusion of certainty as a factor in the Manson test.[13] Even more troubling is the fact that 36% of these cases involved multiple eyewitnesses, all of whom were wrong.[14]

Some courts have begun to re-evaluate the value of eyewitness testimony. Just three weeks ago, in State v. Henderson, the New Jersey Supreme Court revised the Manson test to reflect new understandings from scientific evidence.[15] Though it did not overturn the test, it called for pretrial hearings on suggestiveness and enhanced jury instructions to explain the scientific issues with eyewitness testimony.[16] Its decision followed a remarkable report by its special master, evaluating over 200 scientific studies and finding grievous flaws with eyewitness identifications and the Manson test.[17]

Unfortunately, the Supreme Court does not look likely to follow New Jersey’s lead. In Perry, the Court will not fully consider the constitutionality of eyewitness testimony, but a more limited question of whether suggestive identifications influenced by something other than police orchestration can violate Due Process.[18] While there is room for the Court to more fully consider the constitutionality of suggestive identifications, it is doubtful that the Court will reach further to update Manson. The current Court is unfriendly to developments in the science surrounding criminal law.[19] It also prefers to let the legislature correct problems in criminal justice procedure instead of using Due Process analysis to prohibit suspect practices.[20]

Troy Davis may or may not have been innocent, at this point we cannot know. However, his case is illustrative of the problems with eyewitness identification. Indeed, it is an egregious example. In his case, police delayed giving witnesses photo arrays, re-enacted the crime in a highly suggestive manner, and allegedly threatened witnesses to coerce false testimony.[21] Whether or not the Court is correct in its judicial restraint, if it follows its past tendencies in Perry, the result will be that many innocent people remain incarcerated for crimes they did not commit, some may even be executed, convicted by mistaken eyewitness testimony that courts continue to admit by following a legal standard that is simply incorrect.[22] And regardless of what the Court does in Perry, it is too late for Troy Davis.