A Call for Precedential Heads: Why the Supreme Court's Eyewitness Identification Jurisprudence Is Anachronistic and Out-of-Step with the Empirical Reality

Article excerpt

All the evidence points rather strikingly to the conclusion that there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, "That's the one!" (1)

Do you solemnly swear before the everliving God that the testimony you are about to give in this cause shall be the truth, the whole truth, and nothing but the truth?

No, I don't. I can tell you what I saw and what I heard and I'll swear to that by the everliving God but the more I study about it the more sure I am that nobody but the everliving God knows the whole truth and if you summoned Christ as a witness in this case what He would tell you would burn your insides with the pity and the mystery of it. (2)


It seems that nearly every eyewitness identification paper of late begins with an eye-opening (pun intended) story of how an innocent man was convicted via a faulty eyewitness identification. I will resist the urge to do the same and instead ask a question that gets to the heart of the eyewitness identification debate: what does the empirical evidence tell us?

Social science researchers have been warning us of the deep and inherent flaws in eyewitness identifications for nearly a half-century, (3) and according to two recent studies 75 % of those exonerated via DNA testing have been convicted in large part due to mistaken eyewitness identifications. (4) So while it is known that eyewitness testimony has played a role in the convictions of defendants later proven innocent, what has not been explored is (1) how and to what degree what I will call the "ground level" appellate courts (5) have relied on this type of evidence in affirming the convictions of the innocent and (2) in light of this, how best to effectuate the needed system-wide reform. This Article will use a sample of eighteen actual innocence cases in which inaccurate eyewitness identifications demonstrably played a central role in the conviction. These cases provide an invaluable tool with which to examine the current state of eyewitness identification jurisprudence in this country and they provide a lucid picture of current deficiency of the law in this area. While some reform has been achieved, it is clear that the time has come for the United States Supreme Court to overrule Neil v. Biggers and Manson v. Brathwaite as empirically inconsistent with the due process protection afforded to criminal defendants by the Fifth and Fourteenth Amendments. (6)

The Article is organized as follows. Part II recounts the major problems that social scientists have diagnosed with eyewitness identifications and introduces the relevant vocabulary and concepts. This is important as an empirical comparison point to the intuitions of generalist appellate court judges about what constitutes a fair identification process. Part III recounts the Supreme Court's eyewitness identification jurisprudence. This provides us with an opportunity to see how the Court initially embraced a project to make eyewitness identification procedures more reliable. However, as the Court went through personnel changes in the early 1970s, its decisions mostly ignored the empirical evidence--then the Court ignored the entire issue of eyewitness identifications altogether. Part IV looks at the various standards of review that appellate courts apply when reviewing eyewitness identification challenges. This is crucial because it can many times be dispositive as to how the case is resolved. Part V examines the appellate court opinions in our sample affirming the convictions of the innocent to elucidate how appellate courts treat eyewitness evidence on review and demonstrates that the judges' assumptions are markedly inconsistent with the empirical evidence. (7) Part VI consists of recommendations and Part VII concludes.


The fact that research psychologists have been expressing concerns about the accuracy and reliability of eyewitness identifications for nearly a half-century (9) and that the law enforcement community has turned a collective blind eye to these concerns, (10) says something important about the intellectual inertia this type of evidence enjoys in the legal arena. …