U.S. Supreme Court to review eyewitness testimony

 Posted on August 24, 2011 in Criminal Defense

The United States Supreme Court has not taken a hard look at the reliability of eyewitness testimony since 1977. The Court has agreed to revisit the issue in November. Since the time the issue was before the Court, more than 2,000 studies have been published in professional journals regarding the reliability, or lack of reliability, concerning eyewitness identifications. The nation's highest court previously ruled that judges can exclude some eyewitness identifications if the testimony is unreliable.

The difficulty with the current state of the law on the subject is highlighted by the number of wrongful convictions that have been obtained based upon mistaken identity. Criminal defense attorneys in California and across the country have regularly argued and researchers have compiled a long list of studies indicating that of the roughly 75,000 eyewitness identifications used in the country each year, about one-third are simply wrong.

Research shows that eyewitness identifications can lead to wrongful convictions. Many wrongfully convicted defendants have been exonerated by DNA analysis across the country. Of the first 250 exonerations, researchers say 190 cases involved the mistaken testimony of an eyewitness. Witnesses on those cases reportedly were certain they had identified the right person. One was "120 percent sure," reports the New York Times. Another witness had absolutely no question the wrongfully convicted defendant was involved.

Experienced criminal defense attorneys in California know that judges must first look at the process used during the identification procedure under current law. The court determines whether or not the circumstances surrounding the identification were unduly suggestive. If the court decides the eyewitness identification procedure was not unduly suggestive, the analysis ends and the jury is allowed to hear the testimony.

If the judge determines the procedure used during the identification was unduly suggestive, the court then looks to a number of factors to determine whether the identification is otherwise reliable. Often, judges allow the identification evidence to be presented to the jury after the two step process.

The main issue before the justices concerns which cases implicate the Due Process Clause of the Constitution. The case before the high court seeks more specifics about the types of cases that warrant a closer look under the Constitution. The Court is expected to decide if all eyewitness identification cases require close judicial scrutiny, or only those cases involving eyewitness identifications made under suggestive circumstances.

The court is unlikely to go further and rule on the "larger and more important question of what that closer look should involve," the Times says.

Source: New York Times, "34 Years Later, Supreme Court Will Revisit Eyewitness IDs," Adam Liptak, Aug. 22, 2011