Eyewitness Testimony Examined Under New Light

According to an article in today’s The Columbian citing an Associated Press article by Nigel Duara, “studies show eyewitness testimony is only right about half the time — a reality that has prompted a small vanguard of police chiefs, courts and lawmakers to toughen laws governing the handling of eyewitnesses and their accounts of crimes”.

The article appears to suggest reform advocates want to tidy up procedures regarding eyewitnesses identifications.  The emphasis being on the procedures themselves, not that “eyewitnesses are inherently unreliable” according to Gary Wells of Iowa State University cited in the article.

A practicing criminal defense attorney with over 10 years of experience in criminal procedure, it did not surprise me to read in the article prosecutors as a whole are opposed to such changes in procedure.

The article indicates Maryland passed a bill overhauling state eyewitness identification procedures.  The bill was challenged by prosecutors.

Whether states follow suit with Maryland remains to be seen.  But the choice to make wholesale witness identification procedures will have to come down to the individual states.  The articles states the US Supreme Court had the opportunity to address this issue in a 2012 case out of New Hampshire; however, left  it up the States to decide what changes needed to be made.

The articles cites the following as changes reformers would like to see made in identification procedures: (1) “”blind” administrators of lineups — people who don’t know who the suspect is, and a lineup that doesn’t unfairly single out a suspect; (2)  They want the police to record an eyewitnesses degree of confidence in his identification; and (3) they want any photo lineups of suspects to be randomized”.

Locally, an eyewitness case is under consideration by the Oregon Supreme Court.  The Oregon Court of Appeals having previously found in that case a “host of factors that have rarely been given weight in American criminal law unfairly twisted the recollections of the two women and their confidence in their own testimony”, according to the article.

‘For one studies have shown racial differences between witness and suspect makes identification much more difficult.  Second, the girls hadn’t given any indication of their confidence in their choice of suspect initially making it difficult to later judge the value against later certainty.’

To read the article in its entirely, please click the link.

Below is some briefing I did on photographic identification:

A photographic identification meets the strictures of due process if it is not “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”  Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).  The Simmons court provided several factors that may result in a high likelihood of misidentification, including where the witness has only a brief chance to observe the criminal, sees him under poor conditions, sees “only the picture of a single individual who generally resembles the person he saw,” or sees only “the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized.”  Simmons, 390 U.S. at 383.

The reliability of the identification, considering the totality of the circumstances, controls the determination of whether the procedures created a substantial likelihood of irreparable misidentification.  Manson v. Brathwaite, 432 U.S. 98, 113-14, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).

The United States Supreme Court has provided several factors to determine the identification’s reliability, “include[ing] the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.”  Brathwaite, 432 U.S. at 114; Biggers, 408 U.S. at 199-200.