Justice Delayed Is Justice Denied: Wrongful Convictions, Eyewitness-Expert Testimony, and Recent Developments

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"[I]t is better that ten guilty persons escape, than that one innocent suffer." (1)

I. INTRODUCTION

Legal literature, periodicals, and judicial decisions have spilled much ink on the propriety and scope of the admissibility of expert opinion testimony on the reliability of eyewitness identifications. (2) In the interim, the scientific community continues to stockpile evidence that consistently concludes that eyewitness identifications are unreliable. (3) Many researchers contend that the most effective countermeasure to unreliable eyewitness testimony is the admission of expert testimony. (4) Nevertheless, courts across the country continue to preclude the admission of expert testimony regarding the accuracy of eyewitness accounts. (5)

Unfortunately, more and more wrongful convictions stemming from eyewitness misidentifications continue to come to light. (6) If Sir William Blackstone's words resonate, and if scientifically dubious eyewitness identifications continue to lead to wrongful convictions, then it seems there should be firm guidelines regarding their admissibility, but that is generally not the case. (7) In most jurisdictions, the admission of expert testimony is left to the discretion of the trial judge. (8)

Although courts have moved slowly in developing admissibility guidelines, society has increasingly strengthened its resolve to stop wrongful convictions. (9) For example, some state governments have taken an institutional approach by creating innocence commissions. (10) Additionally, there have been efforts in many states to amend the rules of professional conduct governing attorneys. (11) Finally, a myriad of public interest and policy groups have formed in recent years to address the problem of wrongful convictions. (12)

This Note traces the history of the admissibility of eyewitness-expert testimony in the United States. (13) It then discusses the problematic nature of eyewitness evidence, canvassing some of the scientific evidence that undermines its reliability. (14) Next, it examines the measures taken to address wrongful convictions, including the establishment of innocence commissions and exceptions to client confidentiality rules in legal ethics. (15) Finally, this Note argues that these measures are ineffective and, given the societal interest in avoiding wrongful convictions and the role of eyewitness identifications in causing them, courts should take the lead in curbing wrongful convictions by liberally admitting eyewitness-expert testimony under Federal Rule of Evidence 702 (Rule 702). (16)

II. HISTORY

A. Expert Testimony Proffers

1. Early Admissibility Standards

Proffers of expert testimony at trial were subject to the admissions criteria of Frye v. United States (17) for decades. (18) The Frye regime permits the admission of expert testimony at trial if the proponent can establish that the subject matter of the expert testimony is outside the range of the jury's common experience and knowledge and, more importantly, the scientific findings are sufficiently established to have gained general acceptance in the relevant scientific field. (19) The law of evidence underwent a substantial change in 1993 with the enactment of the Federal Rules of Evidence, and the Supreme Court was called upon to decide whether this change abrogated the Frye regime in Daubert v. Merrell Dow Pharmaceuticals, Inc. (20)

The Daubert Court evaluated the language of Federal Rules of Evidence 401, 402 (Rule 402), and, most importantly, Rule 702, and compared them to the Frye standard. (21) The Court concluded that because "general acceptance" is not a necessary element in any of the Federal Rules, the Frye standard no longer controls in federal courts. (22) Instead, Daubert requires federal judges faced with a proffer of scientific expert testimony to make a preliminary assessment of whether the reasoning or methodology underlying the expert's testimony is scientifically valid by considering several nonexclusive features: its subjection to peer review; its known or potential error rate; its falsifiability, refutability, or testability; the existence and maintenance of standards controlling its operation; and its general acceptance in the relevant scientific community. …