Academic journal article Emory Law Journal

Drawing on Daubert: Bringing Reliability to the Forefront in the Admissibility of Eyewitness Identification Testimony

Academic journal article Emory Law Journal

Drawing on Daubert: Bringing Reliability to the Forefront in the Admissibility of Eyewitness Identification Testimony

Article excerpt


Eyewitness identification evidence has long been recognized for its tendency toward unreliability and its susceptibility to suggestion. At the core of eyewitness identification is the ability to recognize unfamiliar faces-a memory process that can be distorted by factors intrinsic to the nature of memory as well as by extrinsic suggestive identification procedures, such as lineups. Because the guilt or innocence of a criminal defendant is often at stake in cases where eyewitness identification is at issue, this potential for distortion is particularly worrisome. In fact, this concern is borne out in statistical data about wrongful convictions in the United States, showing that mistaken identifications are the leading cause of wrongful convictions in the country.

Eyewitness identification evidence possesses a unique combination of factors that distinguishes it from other types of evidence: not only is it prone to unreliability, but it also has a strong influence on the jury. Further, it is not susceptible to the traditional protections of the adversarial system, such as confrontation and cross-examination. These features set eyewitness identification testimony apart from other types of evidence, warranting special attention by courts. The United States Supreme Court has long recognized the particularly sensitive nature of eyewitness identification testimony in a line of cases in which it found that an identification procedure has the potential to be so unnecessarily suggestive, and thus unreliable, that it violates a defendant's due process rights. However, the current rule only affords protection to cases in which law enforcement officers orchestrated an unnecessarily suggestive procedure, disregarding the equally strong potential for unreliable identifications stemming from situations without any improper police behavior or any suggestive behavior at all.

This Comment argues that the Court's current framework for approaching the problem of eyewitness identification testimony is too narrow and under- inclusive. This Comment proposes that courts should look to Daubert v. Merrell Dow Pharmaceuticals s heightened evidentiary standard for admitting expert scientific evidence, with its focus on reliability, as a guide for admitting eyewitness identification testimony. Then, this Comment proposes a new framework for admitting eyewitness identification testimony, which, like the Daubert standard, would be centered on a reliability assessment that is based on factors known to affect the accuracy of eyewitness identification.


Human memory, while remarkable in many ways, does not operate like a video camera. On the contrary, what people remember is greatly influenced- and often distorted-by interactions between the mind and its surroundings. Nowhere is the potential fallibility inherent in human memory more glaring than in the courtroom, where eyewitnesses regularly testify to the identity of a criminal defendant based on their memory of a culprit's face.

Through efforts such as the Innocence Project,1 the potential for mistaken eyewitness identification has become evident.2 In fact, the leading cause of wrongful convictions in the United States is mistaken eyewitness identification;3 staggeringly, more than 75% of innocent prisoners exonerated by DNA evidence were found guilty at least in part on the basis of mistaken eyewitness identifications.4 This statistic highlights the miscarriage of justice that can occur if an eyewitness makes a mistaken identification: not only is an innocent person imprisoned, but the true perpetrator of the crime also escapes justice.

As efforts such as the Innocence Project suggest, mistaken eyewitness identifications frustrate the truth-seeking goals of the justice system. Courts have attempted to improve identification procedures, such as lineups, to prevent mistaken identifications; however, courts must also address eyewitness identification mistakes that arise not only from procedural problems in control of the justice system, but also from the imperfect nature of memory itself. …

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