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Article Excerpt
I. INTRODUCTION
"The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification." (1)
"[W]e regularly sentence innocent people to death. So the underlying question remains: Considering all the attention we devote to death penalty cases, why do we make so many mistakes?" (2)
It was just turning dark one October night when a young woman hitchhiker was picked up on Pacific Highway South 10 miles outside of Seattle by a man with a beard and a three-piece suit. Instead of driving her to Tacoma, the man turned into an isolated dirt road, raped her and left her by the side of the road.
Just 24 hours later, the rape victim, shown an array of photographs by detectives, identified Steven Titus as her rapist. Largely on the basis of her testimony, Mr. Titus was found guilty.
But a few months after Mr. Titus's conviction, new evidence suggested a different suspect was responsible for a series of rapes, including this one. When the rape victim saw the photograph of the new suspect, she realized he was her rapist and broke down in tears, saying, 'Oh my God, what have I done to Mr. Titus?'
Though Mr. Titus was released, his life was in shambles: he had used all his money for his defense, had lost his job and good reputation and had been left by his fiancee.
Mr. Titus spent the next four years in a struggle to sue the authorities. Eleven days before the case was to come to trial, Mr. Titus died of a heart attack. Ten months later his estate was awarded a settlement of $2.8 million.
The circumstances of this case are not unusual. (3)
The purpose of this article is to delineate a tripartite solution to eyewitness error that is based on over thirty years of extensive scientific research on eyewitness testimony. The criminal justice system depends on eyewitness evidence. It is often the only evidence available in a criminal case and, where properly handled, can be very reliable. The solution proposed here maintains the availability of eyewitness evidence, while instituting safeguards to promote its reliability and accuracy.
Part II of this article describes the extent of the problem of wrongful convictions, reviewing empirical studies that estimate the contribution of eyewitness errors to wrongful convictions, the difficulties eyewitnesses have in accurately identifying the perpetrator of a crime, and the powerful impact that eyewitness testimony has on the trier of fact. Part Ill depicts how American courts have responded to the problem of eyewitness error and analyzes whether those responses have been adequate.
Part IV introduces the tripartite solution. Its first component is permitting expert testimony when the primary or sole evidence against the defendant is eyewitness testimony. The second component is improving law enforcement's procedures for collecting eyewitness evidence. The article describes a scientifically validated method for interviewing eyewitnesses that significantly increases the amount of accurate information obtained from eyewitnesses and decreases the probability of contaminating their memory of the crime. The article then discusses how to further improve investigatory procedures for eyewitness evidence by proposing changes in identification procedures that scientific research has shown can significantly reduce erroneous eyewitness identifications. Finally, the article introduces the third component of the tripartite solution, delineating how and by what means educating the principal participants of the criminal justice system about eyewitness testimony could reduce eyewitness error. This article concludes with an additional imperative for implementing the tripartite solution: the constitutional demands of procedural due process.
II. EYEWITNESS ERROR'S ROLE IN WRONGFUL CONVICTIONS
A. THE NUMBER OF WRONGFUL CONVICTIONS
To understand the impact of eyewitness error on the criminal justice system, it is first necessary to consider the scope of the problem of wrongful convictions. In 2002, over one million adults were convicted of felonies in the United States. (4) One survey of Ohio criminal justice officials estimates that wrongful convictions occur in about 1 of every 200 felony criminal cases (.5%). (5) This translates to more than 5000 innocent persons being convicted of serious crimes in 2002. However, DNA testing of criminal suspects suggests that the percentage of wrongful convictions may be much higher. (6) For example, a 1995 survey of public and private forensic laboratories in the United States indicated that DNA tests had been conducted in 21,621 criminal cases. (7) Of these:
DNA testing exonerated the suspect in 23% of the cases. In another 16% of the cases, DNA tests produced inconclusive results [often due to deteriorated or insufficiently large samples]. In other words, in those cases in which there was a conclusive DNA test result (a sample of many thousands of cases), 27% of the suspects were exonerated by the test. (8)
One-half of all persons arrested for serious crimes are ultimately convicted. (9) In 1999, Dripps noted that many of the suspects now exonerated by DNA testing would have been indicted prior to its use. (10) This implies that there may have been "a false conviction rate in the past of greater than 10% for criminal cases where DNA testing is now possible." (11) More importantly, Dripps asserts that factors such as eyewitness error, which were likely to cause wrongful indictments in DNA cases, continue to produce wrongful indictments in criminal cases where there is no testable biological evidence. (12) "A false conviction rate of 10% would imply almost 100,000 wrongful felony convictions every year." (13)
A 1987 study determined that in approximately 80,000 criminal trials every year in the United States the sole or primary evidence against the defendant was eyewitness testimony. (14) However, science is increasingly revealing that a significant percentage of eyewitness testimony is wrong. "Erroneous eyewitness testimony.., no doubt is the single greatest cause of wrongful convictions in the U.S. criminal justice system." (15) In one study of 340 convictions, eyewitness error played a role in 64% of wrongful convictions. (16) In the first 180 DNA exoneration cases, eyewitness error was a cause of the wrongful conviction in 75% or more of the cases. (17) The United States judiciary has been aware for some time of the problem posed by eyewitness error. (18) For example, the United States Court of Appeals for the Second Circuit stated:
There can be no reasonable doubt that inaccurate eyewitness testimony may be one of the most prejudicial features of a criminal trial. Juries, naturally desirous to punish a vicious crime, may well be unschooled in the effects that the subtle compound of suggestion, anxiety, and forgetfulness in the face of the need to recall often has on witnesses. Accordingly, doubts over the strength of the evidence of a defendant's guilt may be resolved on the basis of the eyewitness' seeming certainty when he points to the defendant and exclaims with conviction that veils all doubt, "[T]hat's the man!" (19)
Similarly, Brigham and Bothwell wrote, "[J]urors appear to regard eyewitness evidence as one of the most persuasive kinds of evidence that can be presented." (20) Jurors place such great faith in eyewitness testimony because they seemingly believe that perceptual memory is like a videotape that can be replayed with near perfect fidelity. (21) Accordingly, when an eyewitness testifies, he or she "can simply play back the appropriate tape." (22) However, scientific research has revealed that eyewitness memory is much more malleable and susceptible to error than is generally realized. (23)
III. THE LEGAL SYSTEM'S RESPONSE TO THE PROBLEM OF EYEWITNESS ERROR
A. THE UNITED STATES SUPREME COURT'S RESPONSE
The eyewitness problem has not escaped the attention of our highest court. In 1967, the Supreme Court first addressed the issue of eyewitness identification in a trilogy of cases: United States v. Wade, (24) Gilbert v. California, (25) and Stovall v. Denno. (26) In Wade, the Court held that because a post-indictment pre-trial lineup is a critical stage of a criminal proceeding, a defendant has a right under the Sixth Amendment to have an attorney present at a post-indictment lineup. (27) The Court further stated that if an attorney is not present at a post-indictment pre-trial lineup, the eyewitness's identification of the defendant is inadmissible. (28) However, in the event that the post-indictment pre-trial lineup is inadmissible, the State can still use the eyewitness's courtroom identification of the defendant as evidence of the defendant's guilt. (29)
In Gilbert, the Supreme Court held that the State is not entitled to show that eyewitness testimony which was the direct result of an illegal post-indictment lineup could be substantiated by an independent source. (30) Instead, the trial court must grant the defendant a new trial if such testimony was presented at the guilt stage, or grant appropriate relief if the testimony was presented at the penalty stage, unless it is determined that the admission of the eyewitness's identification was harmless error beyond a reasonable doubt. (31)
In Stovall, (32) the Court addressed whether a suggestive identification procedure necessitated by exigent circumstances that was conducive to an erroneous identification constituted a denial of due process. (33) The Court held that the totality of the circumstances must be examined when there is an alleged violation of due process in conducting an identification procedure. (34) Thus, in Stovall, the Court found that, though the eyewitness's identification of the defendant was suggestive, it was imperative because the only eyewitness was in a hospital with life-threatening injuries. (35) "Under [the] circumstances, the usual police station lineup ... was out of the question." (36)
One year later, in Simmons v. United States, (37) the Supreme Court confronted the issue of whether an in-court identification of a defendant is admissible if it has been tainted by suggestive pre-trial identification photographs necessitated by exigent circumstances. (38) Applying the same standard it previously enunciated in Stovall, the Court ruled that in-court identifications would be permissible, notwithstanding the use of suggestive photographs, as long as their use was necessary and the in-court identifications were reliable. (39)
Five years later, in Kirby v. Illinois, (40) the Supreme Court clarified its holdings in Wade and Gilbert by ruling that an individual has a right to counsel in a pre-trial identification procedure only if it took place after criminal proceedings had been initiated against the defendant. (41) Furthermore, in United States v. Ash, (42) the Supreme Court held that a defendant does not have a right to an attorney at a photo array, even if the defendant has been indicted, ruling that a photo array is not a "trial-like adversary confrontation" (43) meriting Sixth Amendment protection. (44) As a consequence of the Supreme Court's rulings in Kirby and Ash, law enforcement agencies generally conduct lineups prior to indictments or use photo arrays to identify suspects so they are not required to have the defendant's attorney present at an identification. (45) Thus, the Supreme Court's decisions in Kirby and Ash largely negate the effect of its earlier rulings in Wade and Gilbert. (46)
In Neil v. Biggers (47) and Manson v. Brathwaite, (48) the Supreme Court rendered its final major decisions on suggestive identification procedures. The Court ruled that such identification procedures, even those from unnecessarily suggestive procedures, were admissible provided they were reliable. (49) The Court further held that this reliability is to be determined by the "totality of the circumstances," (50) a standard first mentioned in Stovall, and delineated five eyewitness factors that the trier of fact must consider when making this determination: (1) the eyewitness's opportunity to view the perpetrator during the crime; (2) the length of time between the crime and the subsequent identification; (3) the level of certainty demonstrated by the witness at the identification; (4) the accuracy of the eyewitness's prior description of the criminal; and (5) the eyewitness's degree of attention during the crime [hereinafter "the Supreme Court eyewitness factors"]. (51) In summary, Supreme Court decisions, taken together, are supportive of the admissibility of eyewitness testimony, even where highly suggestive identification techniques are used, provided the identification is deemed reliable. (52)
B. THE SUPREME COURT DECISIONS ON EYEWITNESS TESTIMONY ARE CONTRARY TO SCIENTIFIC FINDINGS
The Supreme Court decisions on eyewitness testimony predate the vast majority of the scientific research on the causes of eyewitness errors and thus constitute "educated guesses" by the Court on how various eyewitness factors and identification procedures affect identification accuracy. (53) Unfortunately, scientific research has shown that many of the Supreme Court's assumptions about eyewitness testimony are erroneous. (54) The Court's decisions in Neil and Manson are good illustrations of this difficulty. Empirical studies indicate that many of the eyewitness factors that the Supreme Court mandated the trier of fact to consider when evaluating eyewitness testimony do not affect eyewitness accuracy the way the Supreme Court assumed they do. (55)
For example, the first Supreme Court eyewitness factor is the eyewitness's opportunity to view the perpetrator of the crime. (56) While the Court was correct in stating that eyewitnesses who have a better opportunity to observe the perpetrator of a crime (57) are more likely to make accurate identifications than eyewitnesses who view crimes under poor conditions, (58) scientific study has revealed that post-event information, such as a lineup administrator's comment that the eyewitness has identified the suspect, can distort the eyewitness's memory of how good his or her view of the crime was. (59)
With regard to the second factor, the Supreme Court is right that the retention interval, or the length of the time between the crime and the identification, (60) is generally related to accuracy, with shorter intervals generally producing more accurate eyewitness identifications than longer intervals. (61) Scientific studies show, however, that other factors, such as stress and race of the witness and suspect, may interact with the retention interval to affect the accuracy of an eyewitness's identification. (62)
Scientific research has also called factor three into question. (63) By the time of trial, an eyewitness's confidence in his or her identification has little relationship to identification accuracy because of the many post-event factors that affect confidence but not accuracy. (64) Moreover, the Supreme Court's reliance on this factor is particularly troubling because scientific research has shown that it is the single most important factor that determines whether jurors believe that an eyewitness has made an accurate identification. (65)
Regarding the fourth factor, empirical studies have demonstrated that eyewitness accuracy in describing a perpetrator is not related to eyewitness accuracy in identifying a perpetrator. (66) Thus, the Court erred in holding that the trier of fact should consider the accuracy of an eyewitness's prior description of the perpetrator in evaluating the accuracy of his or her identification. (67)
The final eyewitness factor is the quality of an eyewitness's attention. (68) Although research has established that eyewitnesses who pay greater attention to a crime generally make more accurate identifications than those who pay less attention, fear, stress, and the presence of a weapon may have a significant negative impact on the witness's ability to attend to a crime. (69) Furthermore, post-event information, such as police confirmation that the eyewitness has identified the suspect in a lineup, can distort the eyewitness's memory of the crime and cause him or her to overestimate the amount of attention he or she paid to the perpetrator. (70)
The Supreme Court eyewitness factors are also deficient because they are incomplete. Scientific study shows the importance of considering such factors as the wording of questions, (71) lineup instructions, (72) confidence malleability, (73) mugshot-induced bias, (74) post-event information, (75) child suggestibility, (76) attitudes and expectations, (77) alcoholic intoxication, (78) cross-race bias, (79) weapons focus, (80) forgetting curve, (81) exposure time, (82) presentation format, (83) unconscious transference, (84) stress, (85) age, (86) and disguise. (87)
In summary, the Supreme Court's decisions on eyewitness identifications fail to incorporate scientific research on eyewitness testimony and therefore permit many preventable eyewitness errors.
C. THE RELUCTANCE OF AMERICAN COURTS TO INSTITUTE NEW SAFEGUARDS
Both the Supreme Court and other United States courts have failed to demonstrate adequate flexibility and innovation in dealing with the eyewitness problem, instead restricting their response to the use of traditional safeguards, such as motions to suppress identifications, voir dire, cross-examination, closing argument, and juror instructions to deal with the problem of eyewitness error. (88) Unfortunately, these safeguards are not effective in preventing eyewitness error. (89) Ironically, courts have been reluctant to permit expert eyewitness testimony even though it is the only traditional legal safeguard that has shown any efficacy in mitigating eyewitness error. (90) The ability of American courts to cope with the problem of eyewitness error has, in the past, also been hampered by the traditional standard employed to rule on the admissibility of scientific evidence. (91) A brief review of the landmark cases on the admissibility of scientific evidence in the United States is revealing.
In Frye v. United States, (92) the United States Court of Appeals for the District of Columbia ruled that "novel" scientific evidence is admissible in a case only if the principles and methodology through which the scientific evidence is collected have received the "general acceptance" of the experts in the field. (93) This strict standard excluded much necessary, valid scientific evidence merely because it had not yet achieved general acceptance in the scientific community. (94)
A competing standard was enunciated in the 1993 landmark case of Daubert v. Merrell Dow Pharmaceuticals, Inc. (95) In that decision, the United States Supreme Court overruled the "general acceptance" standard of Frye and replaced it with a new standard for determining the admissibility of scientific evidence in the federal courts. (96) Although the Daubert ruling only applies to federal courts, many states have adopted it. (97) In Daubert, the Supreme Court held that a "rigid 'general acceptance' requirement would be at odds with the 'liberal thrust' of the Federal Rules [of Evidence] and their 'general approach of relaxing the traditional barriers' to 'opinion testimony.'" (98) In so holding, the Court found that the primary criteria for determining whether scientific evidence is admissible should be its "scientific validity," rather than its general acceptance within the scientific community. (99) This decision placed the primary burden for determining the validity of scientific evidence on trial judges, ruling that a court must evaluate the scientific method employed and the application of that scientific method to facts of the case. (100) The Court delineated some guidelines for determining the validity of purported scientific evidence:
(1) Can it be empirically tested, and if so, has it been empirically tested?
(2) Has it been published in scientific journals that are subject to peer review?
(3) What are its known or potential error rates?
(4) Is it generally accepted in the scientific community? (101)
The voluminous research on eyewitness testimony satisfies this balancing test. (102)
In Kumho Tire Co. v. Carmichael, (103) the Supreme Court extended the Daubert "scientific validity" standard to all expert testimony, including testimony that is "technical" (104) as well as testimony based on "other specialized knowledge." (105) The Court also found that a trial court need not apply all of the Daubert factors in every case, and that indeed a court may consider factors not enumerated in Daubert when determining the validity of expert testimony. (106) The Kumho opinion suggests that scientific validity is the most important criterion in determining the admissibility of scientific evidence. (107)
In General Electric Co. v. Joiner, (108) the Supreme Court, building on its opinion in Kumho, held that a trial court's ruling on the admission of expert testimony must be reviewed under an "abuse of discretion" standard. (109) Consequently, federal appellate courts and most state appellate courts now rarely reverse a trial court's decision to admit or exclude expert testimony "unless manifestly erroneous." (110) In summary, in jurisdictions that follow Daubert, courts must generally make three determinations in ruling on the admissibility of eyewitness expert testimony First, is the expert testimony reliable in both the sense that the methodology and reasoning employed by the eyewitness expert have scientific validity, and that the expert's conclusion is supported by the facts of the case? (111) Second, is the eyewitness expert's testimony relevant to the case? In other words, will the testimony "assist the trier of fact to understand the evidence or determine a fact in issue"? (112) Third, is the probative value of the eyewitness expert's testimony substantially outweighed by its prejudicial value? (113) Finally, in jurisdictions that still follow Frye, courts ascertain whether the principles and methods employed by the eyewitness expert have gained "general acceptance" in the scientific community. (114)
In general, the applicable legal standards usually result in the judge ruling that expert psychological testimony on eyewitness testimony is inadmissible. (115) Moreover, in the federal courts and in most state courts, an appellate court will generally not overrule a trial court's decision to admit or exclude eyewitness expert testimony unless the trial court judge abused his or her discretion in making that determination. (116) Nevertheless, scientific studies have demonstrated that eyewitness testimony is frequently flawed and that the present preventative measures taken by courts are generally inadequate. Indeed, as one expert has explained, "[there is] a vacuum in legal standards that ignores the last decade of research" on eyewitness testimony. (117) As such, new measures are called for. We therefore propose the tripartite solution.
IV. THE TRIPARTITE SOLUTION
As previously stated, the tripartite solution involves:
(1) Permitting expert testimony when the primary or sole evidence against the defendant is eyewitness testimony;
(2) Improving procedures for collecting eyewitness evidence by conducting eyewitness interviews and identification procedures in a manner consistent with best practices identified by scientific research in the field; and
(3) Educating the principal participants in the criminal justice system about eyewitness testimony to sensitize them to the effects of eyewitness factors.
A. FIRST COMPONENT OF THE TRIPARTITE SOLUTION: PERMITTING EXPERT TESTIMONY WHEN THE PRIMARY OR SOLE EVIDENCE AGAINST THE DEFENDANT IS EYEWITNESS TESTIMONY
The first component of the tripartite solution consists of permitting expert testimony when the primary or sole evidence against the defendant is eyewitness testimony. Eyewitness expert testimony "refers to the delivery to a jury by a qualified research psychologist of information about research and theory on eyewitness behavior." (118) During this testimony the eyewitness expert explains to jurors how memory works, the relevant eyewitness research, and what eyewitness factors may have affected the accuracy of eyewitness testimony. The eyewitness expert does not express an opinion on the ultimate issue (i.e., the accuracy of the eyewitness). (119)
1. Are Courts Justified in Their Exclusion of Eyewitness Expert Testimony?
Although some courts admit eyewitness expert testimony, the vast majority of courts are skeptical of its value, if not outright hostile to its admission. (120) In excluding eyewitness expert testimony, courts have generally given one or more of the following reasons (121): (a) the testimony of the eyewitness expert would concern matters already within the jury's knowledge; (122) (b) traditional legal safeguards, such as voir dire, cross-examination, closing argument, jury instructions, and motions to suppress are sufficient to guard against eyewitness error; (123) (c) the eyewitness expert's testimony would prejudice the jury or usurp its discretion; (124) (d) eyewitness expert testimony is unnecessary when the eyewitness is a law enforcement officer or someone else trained to make accurate identifications in stressful situations; (125) (e) pursuant to Federal Rule of Evidence 704 and other authorities, the prejudicial value of eyewitness expert testimony substantially outweighs its probative value because it will cause jurors to become unduly skeptical of eyewitness testimony. (126) The validity of each of these reasons for excluding eyewitness expert testimony is discussed below.
a. The Testimony of the Eyewitness Expert Would Concern Matters Already Within the Jury's Knowledge
Federal Rule of Evidence 702 requires that expert testimony "assist the trier of fact to understand the evidence or to determine a fact in issue." (127) Using a variety of methods to test jurors' knowledge of eyewitnesses, researchers have found that: (1) jurors have limited knowledge of the factors that influence eyewitness accuracy, (128) such as the effects of the perpetrator wearing a hat (129) or using a weapon (130) on identification accuracy; (2) jurors rely on factors which are not good indicators of eyewitness accuracy, such as eyewitness confidence, (131) memory for minor or trivial details, (132) and inconsistencies in eyewitness testimony; (133) (3) jurors overestimate the ability of eyewitnesses to make accurate identifications; (134) and (4) jurors in mock trials cannot distinguish accurate from inaccurate eyewitnesses. (135) In short, scientific research shows that jurors have limited knowledge of eyewitness factors and cannot determine whether an eyewitness has made an accurate identification. (136)
Moreover, a recent study suggests that judges are not well situated to ascertain the level of juror knowledge regarding eyewitness factors, as they too are limited in their understanding of eyewitness testimony. (137) Where the judges were assessed with the same instrument given to eyewitness experts, (138) judges' answers diverged significantly from those of the experts. (139) Areas in which the judges showed little consensus included knowledge of the relationship between eyewitness confidence and accuracy at trial (140) and whether jurors can distinguish accurate from inaccurate eyewitnesses. (141) Many judges appeared to be unfamiliar with simultaneous lineups, (142) the forgetting curve, (143) and with studies indicating that half or more of all...
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