Rethinking Reliance on Eyewitness Confidence

By Vidmar, Neil; Coleman, James E. et al. | Judicature, July/August 2010 | Go to article overview

Rethinking Reliance on Eyewitness Confidence


Vidmar, Neil, Coleman, James E., Newman, Theresa A., Judicature


When Jennifer Thompson pic ked Ronald ( loiton - suspect number live - from a line-up, she was "absolutely certain" she had identified the man who raped her in July 1984. She said she knew that she was right because, during the rape, she had studied his eyes, his voice, his height, and even the .shape of his ears. She was determined to identify' him later if she survived. Thompson's repeated strong and confident identification of Cotton during prctrial proceedings and at ? rial led to his 1985 conviction and sentence of life imprisonment plus 50 years.

In 1995, DNA evidence proved Thompson's identification to be wrong. She erred because her memory of ihe rapist was skewed by suggestive pretrial identification procedures: working with police on a composite sketch of the suspect inclined her to identify Cotton's mug shoi, which bore a resemblance to her assailant; selecting his mug shot primed her to pick him out of a line-up; and picking him out of the line-up led her to identify him ivi i h absolute certainly at trial. Investigators' positive reactions to her repeated identification of Collón further reinforced Thompson's misguided certainty thai he was her rapist.1

The Ronald Cotton story is far from unique in its tale of unreliable eyewitness confidence and the inaccuracy of an identification leading to a wrongful conviction. Of the 239 DNA exonerations documented by late 2009. 73 percent - or 175 cases - involved positive eyewitness testimony - ultimately pro\ed to be erroneous.- This ,should not he surprising. In 1937 John VVigmore drew attention to the many problems of eyewitness identification in The Science of Judicial Proof'. Reliance on an eyewitness's confidence misdirects law enforcement officials, inappropriately bolsters the confidence of other witnesses, negates credible exculpatory evidence, and contributes to the over-reliance on eyewitness testimony by jurors and many judges. A major difficulty is that frequently judges feel their hands are tied by a legal precedent that has continued io vex conns across the country.

Origins of a precedent

A trilogy of cases under U,S. v. Wadr, decided in 1967, also recognized the frailties of eyewitness identification. The foundation of the trilogy was the Wade Court's acknowledgment of the "high incidence of miscarriage of justice" caused bv mistaken eyewitness identifications, and its recognition ihai suggestivo pretrial identifications can taint laU'v identifications. ' The Conn held that where there has bet: n a suggestive pretrial identification, any subsequent iii-court identification musi liave an independent basis Lo be admissible. In applying this test, the Court suggested several factors that may be considered:

for example, the prior opportunity to observe the alleged criminal act, the existence of any di screpa iicy between any pre-line up description and ihe defendant's actual description, any identification priur m lineup of Linutlier person, the idemilicatinn by picture of the defendant prior in the lineup, failure Lo identify Ui c delendant on a prior occasion, and the lapse oftiinc bt'lvveen the alleged in and the lineup ideiuiiiialion.

However, when the Supreme C.ouri reiurned to the subject in the 1972 case of Neil v. Biggers. it restated the factors, adding a new one - "the level of certainty demonstrated by the witness at the confrontation."' This new factor appears to have been the prodiui of the Bigger Conn's "common sense" in tt til ion rallier Ui an beingbased on Wade, any other Court precedent, or, indeed, on any empirical evidence.

While the Wade Court did not attribute its list ol reliability (actors to an}' souiTe. the factors appear to have originated in a book by Patrick M. Wall, Eye-Witness Identification in Criminal Caws* which the Court referenced repeatedly throughout its opinion. Strikingly, however. Wall cautioned against the use of evewitness certainty or confidence, warning thai an eyewitness "may be subjected to so many suggestive influences by ? …

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