“Human beings are not very good at identifying people they saw only once for a relatively short period of time,” writes Cornell law professor Michael Dorf. He continues:
The studies reveal error rates of as high as fifty percent—a frightening statistic given that many convictions may be based largely or solely on such testimony. These studies show further that the ability to identify a stranger is diminished by stress (and what crime situation is not intensely stressful?), that cross-racial identifications are especially unreliable, and that contrary to what one might think, those witnesses who claim to be ‘certain’ of their identifications are no better at it than everyone else, just more confident.
The costs of this phenomenon are revealed in data compiled by the Innocence Project, which concluded that out of 281 post-conviction exonerations secured through DNA in the United States, eyewitness misidentification “was a factor in 75 percent…making it the leading cause of these wrongful convictions.”
There are ways to guard against such error. Experts have cited two main variables that can adversely affect eyewitness identification: “estimator variables,” which include things like the degree of lighting, distance, or speed in a crime scene; and “system variables,” defined as “those that the criminal justice system can and should control,” which include law enforcement tools like lineups and photo arrays.
Reforms involving the latter boost the accuracy of witness identifications. These include “blind administration,” where an officer conducting a lineup is not aware of who the suspect is; “non-suggestive” lineups, made up of people who generally resemble a witness’s description; allowing witnesses to sign a statement indicating their level of confidence; and presenting members of a lineup sequentially and not simultaneously. Such safeguards have so reduced the error rate that local jurisdictions and eleven states have adopted some or all of them.
It would seem logical, then, to carry out these reforms universally, and for courts to screen eyewitness evidence for reliability before such testimony is heard by a jury.
On January 11, in Perry v. New Hampshire, the Supreme Court rejected that notion, ruling that pretrial inquiry is not a requirement of due process “when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.”
Perry does two unfortunate things.
It undercuts pretrial examination of almost all “estimator variables,” no matter how problematic, since those are less likely to involve police.
By drawing the line at “unnecessarily suggestive” actions by state actors, the ruling sets a high bar for challenging eyewitness evidence, ignoring the proof that misidentification is pervasive.
Justice Sonia Sotomayor, the dissenter in Perry, wrote that this ruling invites arbitrary results by making “police arrangement” the “inflexible step zero.” The concerns of due process should be based on the likelihood of misidentification, she said, “not predicated on the source of suggestiveness.” Reiterating that any preventable misidentification is a miscarriage of justice, she underscored the Innocence Project’s concern that inaccurate eyewitness testimony is the leading cause of wrongful convictions in US courts. DNA has exonerated eight misidentified inmates on death row. If we have at our disposal simple reforms that have been proven to guard against such tragic mistakes, why should we not implement them universally?
Via Patricia Williams at The Nation.