I'd Know That Face Anywhere . . . . Ooops, My Mistake

My client had a beard at the time.  No question about that.  The eyewitness gave a description that didn't mention a beard.  Somehow, you'd think that might be something he have remembered.  The then Chief-Justice of the Ohio Supreme Court thought so, seemed to be troubled by it when he said to the bearded prosecutor,

I might not remember much about you tomorrow, but I'd remember you had a beard

Another justice, ever ready to help out the state, observed that if someone pointed a gun at him, he'd be mighty sure to get the identification right, and that the witness had identified my client in court.  He was right about the witness who did point to my client.  He was wrong about what happens if someone points a gun at you.

Here's what happens.  You don't look at the guy with the gun.  You look at the gun.

We've learned a lot about eyewitness identification in the last 30 years or so.  Mostly what we've learned is that it's altogether unreliable.  Study after study shows the same thing.  Memory is faulty.  Those images that are burned into our brains are malleable.  The fact that we're sure?  Irrelevant.

But it's compelling.  The cops believe it.  The prosecutors believe it.  The judges believe it.  Most importantly, the juries believe it.

And it's just not reliable.

Back in the 70s, in Neil v. Biggers and Manson v. Braithwaite, the Supremes tried to set out some limits on misuse of eyewitness identification.  The concern was primarily with unduly suggestive procedures and what we got was a small series of considerations for the judge to balance if you could convince the judge that the procedures the cops employed were unduly suggestive.  Then, if the ID was too hopeless, the judge was to exclude it.  The decision ostensibly swung on five factors:

1. Opportunity to view
2. Degree of attention
3. Accuracy of description
4. Certainty
5. Time between event and identification

And then, this time as direct quote from Manson,

Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

Nice in theory, nearly worthless in practice for the defense.   (Let the jury sort the damn thing out.)

And truly worthless in light of what we've learned about eyewitnesses and memory if the goal was actually getting the bad guys.

Yesterday, the New Jersey Supreme Court admitted it.  From the Introduction to State v. Henderson.

In the thirty-four years since the United States Supreme Court announced a test for the admission of eyewitness identification evidence, which New Jersey adopted soon after, a vast body of scientific research about human memory has emerged. That body of work casts doubt on some commonly held views relating to memory. It also calls into question the vitality of the current legal framework for analyzing the reliability of eyewitness identifications. See Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Madison, 109 N.J. 223 (1988).
. . .
After granting certification and hearing oral argument, we remanded the case and appointed a Special Master to evaluate scientific and other evidence about eyewitness identifications. The Special Master presided over a hearing that probed testimony by seven experts and produced more than 2,000 pages of transcripts along with hundreds of scientific studies. He later issued an extensive and very fine report, much of which we adopt.
We find that the scientific evidence considered at the remand hearing is reliable. That evidence offers convincing proof that the current test for evaluating the trustworthiness of eyewitness identifications should be revised. Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country.
We are convinced from the scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications. Those factors include system variables like lineup procedures, which are within the control of the criminal justice system, and estimator variables like lighting conditions or the presence of a weapon, over which the legal system has no control. To its credit, the Attorney General’s Office incorporated scientific research on system variables into the guidelines it issued in 2001 to improve eyewitness identification procedures. We now review both sets of variables in detail to evaluate the current Manson/Madison test.

They concluded, not surprisingly, that the test sucks.  And they redid it.  What they came up with isn't perfect, but it's an improvement.  Here's the short version.

If the defendant can find something to point to indicating that the eyewitness's identification was somehow tainted by the authorities or private action, the court is supposed to hold a pre-trial hearing on admissibility.  At the hearing, the state has to "offer proof" that the identification is reliable.  But the defendant has to actually prove that it was unreliable.  The final step is the real problem

Fourth, if after weighing the evidence presented a court finds from the totality of the circumstances that defendant has demonstrated a very substantial likelihood of irreparable misidentification, the court should suppress the identification evidence.

Frankly, that may not be much of a bonus.  The devil isn't in the details, it's in the outline.  Depending on how the courts end up applying that formula (and I'm not holding my breath), it's an invitation to say

Well, yeah, but "very substantial likelihood"?  I don't think so.

You know, the old balance.  The state comes up with its bullshit evidence and the defense proof is just, not quite enough to overcome close enough for government work.

Still, what the court is to consider is very good, and if the court does admit the identification, it's supposed to tell the jury all the reasons not to take it seriously.

On the one hand, the court expanded the list of things cops can do that are improperly suggestive - even recognized that the list is incomplete.  That's valuable, although New Jersey police had already adopted better practices than most of the nation used.

On the other hand (both hands are pretty good in this case), the court then gave a

non-exhaustive list of estimator variables to evaluate the overall reliability of an identification and determine its admissibility.

That is, the court said that all these things (and others too) can screw up an identification all by themselves.  Here's the list they gave.

1. Stress
2. Weapon focus.
3. Duration.
4. Distance and Lighting.
5. Witness Characteristics.
6. Characteristics of Perpetrator. 
7. Memory decay.
8. Race-bias.
9. Opportunity to view the criminal at the time of the crime.
10. Degree of attention.
11. Accuracy of prior description of the criminal.
12. Level of certainty before receiving any feedback or other information.
13. The time between the crime and the confrontation.

Some of these are pretty obvious.  Some less so.  And, again, the court recognized that the list is both incomplete and will need to be adjusted as we learn more about memory and perception.  

They could have gone further.  They could have said (and frankly should have) that any identification that isn't obtained following best practices should be tossed as unreliable.  They chose not to do that because, gee, then some criminals would get off.  Which is true.  And some innocent people wouldn't be charged or convicted.  Which is also true.  But there's that thing about breaking eggs to make an omelet.

Still, it's no small thing to ensure that the jury is told.  And it's certainly no small thing to try to develop procedures based on actual information rather than feel-good-tough-on-crime assumptions.

The above factors are not exclusive. Nor are they intended to be frozen in time. We recognize that scientific research relating to the reliability of eyewitness evidence is dynamic; the field is very different today than it was in 1977, and it will likely be quite different thirty years from now. By providing the above lists, we do not intend to hamstring police departments or limit them from improving practices. Likewise, we do not limit trial courts from reviewing evolving, substantial, and generally accepted scientific research. But to the extent the police undertake new practices, or courts either consider variables differently or entertain new ones, they must rely on reliable scientific evidence that is generally accepted by experts in the community.

Is this all ideal?  Far from it.  The court admits that few identifications will get suppressed.  It allows juries to hear from experts who can explain why and how for instance, memory can be falsified, but says that it shouldn't be useful (and therefore shouldn't be allowed) most of the time because good jury instructions are better.

Oh, and of course none of this will help anyone (except Henderson and Chen, who's got a companion case) who's already gotten fucked.  We can't, after all, just go around fixing the prospect of having convicted the innocent.

So it ain't perfect.

But it's a step. A big one, really.  

And one that may have some legs outside the Garden State.  From the Times.

In its ruling, the court cited findings by Brandon L. Garrett, a law professor at the University of Virginia, who documented in a recent book, “Convicting the Innocent,” eyewitness misidentifications in 190 of the first 250 cases of DNA exoneration in the country.

Professor Garrett said the decision would provide a model for legislatures and courts around the country that “have been at a loss for what to do” and needed “a structure for how judges should handle identifications in the courtroom.”

That's from a professor.  Here's from practice:  I've heard already from a couple of lawyers around the country that they are giving the opinion to judges in their cases (in one case to an appellate court) in the effort to help their clients.