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Overview

The admissibility and treatment of eyewitness identification evidence in criminal trials is governed in almost every US jurisdiction by the legal framework set forth by the United States Supreme Court in a series of cases decided between 1967 and 1977, when little was known about eyewitness memory and perception. This legal framework has remained firmly in place, despite the fact that in the intervening period there has been an explosion of research in the field of eyewitness identification, which now contains the largest and most rigorous body of scientific research of all the law-related social science fields (State v. Henderson, 27 A. 3d 872, 916 (NJ 2011)). The scientific research makes it abundantly clear that the current legal framework for evaluating eyewitness identification evidence is broken, a conclusion supported by the fact that eyewitness identification is the most common cause of wrongful convictions, playing a role in nearly 75 % of the 297 convictions overturned by post-conviction DNA testing. See Eyewitness Misidentification, Innocence Project, http://www.innocenceproject.org/understand/ Eyewitness-Misidentification.php (last visited Jan. 12, 2012); see also Brandon L. Garrett, Convicting The Innocent: Where Criminal Prosecutions Go Wrong 48 (2011) (finding that 190 of the first 250 DNA-based exonerations in the United States involved eyewitness misidentification). This research paper describes the current legal framework for evaluating eyewitness identification evidence and modifications to that framework imposed by lower courts, as well as suggestions for improvement based on scientific research.

Introduction

The Supreme Court has long recognized the significant and unique dangers that the admission of unreliable eyewitness testimony can pose for the criminal justice system. Forty-five years ago, long before the era of exculpatory DNA evidence, the Supreme Court held that the “vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification” (United States v. Wade, 388 U.S. 218, 228 (1967)). The Court recognized that “a major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification” (Id.). The work of the Innocence Project and affiliated entities that use post-conviction DNA evidence to exonerate the wrongly convicted have confirmed the Supreme Court’s worst fears: mistaken eyewitness identifications have played a role in nearly 75 % of the 306 wrongful convictions identified by postconviction DNA evidence, making eyewitness misidentification the most common contributing cause of wrongful convictions. The experiences of these exonerees, together with robust scientific research concerning eyewitness memory and perception, have identified fundamental flaws not only in traditional forms of pretrial identification procedures but also in the legal framework created by the Supreme Court and applied by courts to evaluate the admissibility of eyewitness identification evidence. Both the exonerations and the scientific research provide a useful roadmap toward an improved legal framework, which some state supreme courts have adopted in part in renovating aspects of the existing legal framework. See, e.g., State v. Henderson, 27 A.3d 872 (N.J. 2011); State v. Lawson, 291 P.3d 673 (Or. 2012).

The Current Legal Framework

A defendant’s constitutional rights may be implicated by eyewitness identification procedures in one of two ways. First, and most commonly, due process is implicated when state-orchestrated identification procedures are impermissibly suggestive, resulting in a “very substantial likelihood of an irreparable misidentification” (Simmons v. United States, 390 U.S. 377, 384 (1968)). Second, a defendant’s Sixth Amendment right to counsel is implicated if he is denied counsel at an identification procedure at which counsel has the right to be present. The Supreme Court has taken two distinct approaches to these different potential constitutional violations.

The Due Process Approach

Prior to 1967, when the Supreme Court heard Stovall v. Denno, 388 U.S. 293 (1967), the Court had never considered whether a pretrial identification procedure could implicate a defendant’s right to due process. In Stovall, the Supreme Court recognized that the “totality of the circumstances” of an identification procedure may be “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to deny a defendant due process of law (Id. At 302). Stovall involved a show-up procedure where the defendant was brought to the victim’s hospital room for a confrontation. The defendant was handcuffed to one of the seven police officers who escorted him and was the only black person in the room. The victim was asked by one of the police officers if the defendant “was the man,” after which the victim identified the defendant as the person who stabbed him.

The Court set forth a two-part due process test, which directed that courts first ask whether the initial identification procedure was “unnecessarily” or “impermissibly suggestive” and, if so, to consider whether that suggestive procedure was “conducive to irreparable mistaken identification” (Id. at 302). While the Supreme Court noted that a show-up identification, like the one at issue in Stovall, was “inherently suggestive” and “widely condemned,” the Court acknowledged that exigent circumstances may make show-ups necessary. In Stovall, the “totality of the circumstances,” including the victim’s life-threatening injury and her inability to leave the hospital, led the Court to conclude that the show-up was not impermissibly or unnecessarily suggestive as “an immediate hospital confrontation was imperative” (Id.).

One year later, in 1968, the Court applied the holding of Stovall to a case involving pretrial photographic identification procedures. In Simmons v. United States, 390 U.S. 377 (1968), the Court considered whether multiple, suggestive pretrial photographic identification procedures was so unduly prejudicial as to make the in-court identification at trial unreliable, thereby fatally tainting the conviction. The Court considered the “totality of the circumstances” and found that the in-court identification was not irreparably tainted by the suggestive pretrial identification procedure. The Court found that the suggestive procedures were necessarily given that a “serious felony had been committed;” the “perpetrators were still at large;” and the “inconclusive clues which law enforcement possessed led to [the defendants]” (Id. at 384–85).

The next year, the Court again considered whether a defendant’s due process rights had been violated by pretrial identification procedures in Foster v. California, 394 U.S. 440 (1969). In that case, following the robbery of a Western Union, the police showed the witness a lineup that consisted of Foster and two others. Foster was at least six inches taller than the other two and was the only lineup member to wear a leather jacket, similar to the one the witness described the robber as having worn. The witness was unable to make a positive identification (stating that he “thought” that Foster was the robber) and asked for an opportunity to speak with him. The police allowed the witness to meet with and speak to Foster, after which the witness was still unsure whether Foster was the robber. A week later, the witness was shown a second lineup which consisted of Foster and four others; Foster was the only person to appear in both lineups. The witness reported that he was certain that Foster was the robber and testified to his out-of-court identification at trial, also making an in-court identification of Foster at trial. The Court reversed the conviction and held that Foster’s right to due process had been violated because “the pretrial confrontations clearly were so arranged as to make the resulting identifications virtually inevitable” (Id. at 443). This was the first – and remains the only – time that the Supreme Court reversed a conviction on the grounds that a defendant’s due process rights were violated as a result of a flawed identification procedure.

The next year, 1970, the Court heard Coleman v. Alabama, 399 U.S. 1 (1970), where petitioners appealed their convictions for assault with intent to murder. With respect to the identification procedures, Petitioners argued that the lineup they were subjected to was suggestive in several ways: first, the victim believed that the police had caught the assailants; second, Petitioners and their codefendant were the only lineup members required to utter specific words requested by the victim; and third, one of the Petitioners was the only lineup member wearing a hat like that worn by one of the assailants. The Court, considering the “totality of the circumstances,” found that the identifications were “entirely based upon observations at the time of the assault, and not at all induced by the conduct of the lineup” (Id. at 5–6).

In Neil v. Biggers, 409 U.S. 188 (1972), the Court considered whether a showup identification procedure in a police station was so suggestive that the admission of the identifications violated the defendant’s right to due process. The Court reviewed its earlier decisions from Stovall to Coleman and set forth the test for admissibility of eyewitness identification evidence that was then adopted by the Court in 1977 in Manson v. Brathwaite. 432 U.S. 98 (1977). It is this test that remains in place today. The two-part test first asks whether the procedure used was “unnecessarily suggestive,” and, if so, whether the identification is nevertheless “reliable.” The “reliability factors” set forth by the Court in Biggers and adopted in Manson are the following: (1) the opportunity of the witness to view the perpetrator, (2) the degree of attention paid by the witness, (3) the accuracy of the witness’ prior description of the perpetrator, (4) the witness’s level of certainty at the time of the confrontation, and (5) the length of time between the crime and the confrontation (Id. at 114). As the Court explained in Manson, “[r]eliability is the linchpin in determining the admissibility of identification testimony” (Id.).

In May 2011, for the first time since 1977, the United States Supreme Court agreed to consider a case involving a challenge to the admission of eyewitness identification evidence. Perry v. New Hampshire, 565 U. S. (2012), involved the accidental (i.e., not police-orchestrated) viewing by a witness of a suspect who was the only civilian and only African American standing at the scene of a crime in the presence of uniformed law enforcement. In Perry, the Supreme Court considered a narrow question: does the Due Process Clause require an inquiry into the reliability of an eyewitness identification when the unnecessarily suggestive circumstances that produced the identification were not orchestrated by law enforcement. The Court held that “[w]hen no improper law enforcement activity is involved . . . it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at post indictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt” (Id. at 1). Thus, while the Court once again recognized the “fallibility of eyewitness identifications” (Id. at 15) and the role of eyewitness identifications in miscarriages of justice, it concluded that the protections inherent in the trial process are sufficient to protect defendants when there has been no law enforcement involvement in the identification procedure, and a hearing that could result in suppression of eyewitness evidence was not constitutionally required. The Court explained its unwillingness to require a Due Process analysis where suggestion did not emanate from law enforcement as rooted in the Court’s recognition that “[t]he Constitution . . . protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit” (Id. at 6). The Court elaborated, “the jury, not the judge, traditionally determines the reliability of evidence” (Id. at 15).

The dissent, authored by Justice Sotomayor, disagreed that the traditional rights and opportunities available to defendants in the course of a trial are sufficient to protect against the possibility of “miscarriage[s] of justice from mistaken identification” (Id. at 1) (Sotomayor, J., dissenting) (quoting Wade, 388 U.S. at 228). Justice Sotomayor – relying on scientific research and the cases of the wrongfully convicted – found that the serious risk presented by suggestive circumstances exists no matter the source of the suggestion, and therefore, the protections of the Due Process Clause should apply whenever an identification is the product of suggestive circumstances:

—–This Court has long recognized that eyewitness identifications’ unique confluence of features – their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process – can undermine the fairness of a trial

(Id. at 2) (Sotomayor, J., dissenting).

The dissent argued that the majority opinion represents a significant departure from the Court’s jurisprudence, which had until Perry set forth “a clear rule: The admission at trial of out-of-court eyewitness identifications derived from impermissibly suggestive circumstances that pose a very substantial likelihood of misidentification violates due process” (Id. at 1) (Sotomayor, J., dissenting). In contrast, the majority opinion described the Court’s jurisprudence as having a narrower procedural focus that permitted pretrial screening of identification evidence only in situations involving identification procedures arranged by law enforcement (Id. at 2). (“We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers.”) See also Id. at 2, n.1. (“Neither Perry nor the dissent, however, points to a single case in which we have required pretrial screening absent a police arranged identification procedure. Understandably so, for there are no such cases.”).

The dissent further identified Perry as presenting a break from the Court’s jurisprudence in that it “recasts the driving force of our decisions as an interest in police deterrence, rather than reliability” (Id. at 2) (Sotomayor, J., dissenting). Indeed, for the first time in any decision concerning the admissibility of eyewitness identification evidence, the Court identified police deterrence as “a primary aim” (Id. at 11). Manson cast deterrence as one of “several interests to be considered,” together with reliability and the administration of justice (Manson, 432 U.S. at 112. Accord Perry at 10–11) (Sotomayor, J. dissenting).

Scientific and legal attacks on the validity of the Manson “balancing” test as a method for assessing the reliability of eyewitness evidence were not before the Court in Perry, the “all-ornothing” aspect of the Manson legal architecture that provides no guidance to juries when suggestive procedures (“system variables”) are used that increase the risk of error or “estimator variables” are involved that can also undermine the reliability of identifications. Arguments along these lines (arguments that were recently adopted in influential decisions of the New Jersey Supreme Court and the Oregon Supreme Court in State v. Henderson and State v. Lawson, respectively) were presented by certain amici including the Innocence Network and the American Psychological Association, but the Court did not choose to reach out to address them, not even in dicta. Since these arguments, based on decades of scientific findings, go more toward a “renovation” or improvement of Manson with respect to the way trial courts evaluate the reliability of eyewitness evidence and instruct juries when suggestive procedures by state actors occur, and not a new, lower standard for the exclusion of evidence, it should not be assumed that the Perry decision signals a hostility to the approach adopted by the New Jersey Supreme Court in Henderson. The Perry decision probably reflects, more than anything else, a predisposition against any expansion of the exclusionary rule and confidence in the ability of trial courts to use traditional procedures ( jury instructions, motions in limine, or expert testimony) to assist juries in the evaluation of questionable eyewitness evidence. Indeed, the scientifically based framework adopted in Henderson is directed toward strengthening the traditional trial-based protections identified in Perry to ensure they are sufficiently flexible and robust to prevent a due process violation.

The Sixth Amendment Approach

On the same day in 1967 that the Court issued Stovall, the Court issued two other cases involving eyewitness identification procedures: United States v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263 (1967), which addressed whether violations of the Sixth Amendment right to counsel occurred during post-indictment identification procedures.

In Wade, the Court considered whether the failure to alert counsel that the client would be placed in a lineup post-indictment violated the client’s right to counsel. Concluding that it did, the Court held that the Sixth Amendment guarantees an accused the right to counsel not only at his trial but at any “critical confrontation by the prosecution at pretrial proceedings where the results might well determine his fate and where the absence of counsel might derogate from his right to a fair trial” (388 U.S. at 223). The Court went on to find that a post-indictment lineup was just such a critical stage (Id. at 227). The remedy for this violation was to exclude the out-of-court identification from being admitted in evidence at trial, although the state would have “the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification” (Id. at 240). The Court identified factors to determine whether there exists an independent source for the in-court identification: the prior opportunity to observe the alleged criminal act, any discrepancy between any pre-lineup description and the defendant’s actual appearance, any prior identifications or failures to identify the defendant, and the time between the crime and the confrontation (Id. at 241).

In Gilbert v. California, 388 U.S. 263 (1967), the Court applied the Wade test to determine whether Gilbert’s rights were violated by a series of suggestive, post-indictment identification procedures conducted outside of the presence of counsel. The Court, concluding that Gilbert’s right to counsel had been violated, announced a per se exclusionary rule for out-of-court identifications that are the product of procedures where the defendant had a right to counsel but that right was violated (Id. at 271). (“The admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error.”).

The Manson Balancing Test Is Flawed

Manson arose in an era when the exclusionary rule was being used by the Supreme Court as a remedy to deter police from violating citizens’ constitutional rights. But, as the Manson court recognized, unnecessarily suggestive identification procedures themselves do not violate a suspect’s constitutional rights because “[u]nlike a warrantless search, a suggestive pre-indictment identification procedure does not in itself intrude upon a constitutionally protected interest” (Id. at 113 n.13). The constitutionally protected interest at stake in eyewitness identification cases is the due process right to a fair trial.

Therefore, the Manson Court focused on the trustworthiness of the identification evidence and declared reliability to be the linchpin for its admissibility (Id. at 144). It feared that a per se rule suppressing unnecessarily suggestive out-of-court identification procedures “goes too far since its application automatically and peremptorily, and without consideration of alleviating factors, keeps evidence from the jury that is reliable and relevant” (Id. at 112). While conceding that a per se suppression rule has a “significant deterrent effect” in preventing the use of unnecessarily suggestive procedures, the Court still worried that the “rigidity” and “inflexibility” of a per se rule “may result, on occasion, in the guilty going free” and would make error by trial courts “more likely” (Id.).

The Manson Court was by no means refusing to acknowledge the “awful risks of misidentification” (Id. at 110), or the dangers posed by unnecessarily suggestive identification procedures, but believed that juries would understand that “[s]uggestive procedures often will vitiate the weight of evidence” and juries could be counted on to appropriately “discount” it (Id. at 112 n. 12). By developing what it believed was a flexible “totality of the circumstances” approach that stressed “reliability” and forced trial courts to make detailed, pretrial assessments of evidence, the Manson Court envisioned that its two-part balancing test would improve the “administration of justice” and produce more accurate verdicts (Id. at 112–113).

It is now clear that the Manson test, as currently configured, does not meet the objectives the Court set for it. Ironically, Manson was written the very year, 1977, that eyewitness identification research started to advance toward its current status as the “gold standard” for the reliable application of social science to the law (State v. Henderson, 27 A. 3d 872, 916 (NJ 2011)). Three decades of empirical findings demonstrate that the Manson framework suffers from five serious flaws that increase the chance of wrongful convictions based on eyewitness misidentifications: its balancing test is skewed by a scientific confound; it focuses solely on police misconduct; it limits trial courts to an inflexible, all-or-nothing suppression remedy; it does virtually nothing to deter unnecessarily suggestive identification procedures; and it fails to provide much needed “context” and guidance for jurors on how to evaluate eyewitness identification evidence.

The “Balancing” Test Is Confounded

Under Manson, courts are first supposed to balance the corrupting effects of unduly suggestive identification procedures against “reliability factors” and then decide whether to suppress in-court and out-of-court identification evidence if they find a “very substantial likelihood of an irreparable misidentification” (Manson, 432 U.S. at 122). The problem, of course, with such “balancing” is the undisputed scientific finding that both post-identification feedback and the use of unduly suggestive identification procedures tend to artificially inflate post-identification self-reports from witnesses about key reliability factors – opportunity to observe, the degree of attention paid, certainty, and description (Wells and Quinlivan 2009). The consequences of this confound are profound. It artificially inflates the apparent reliability of the eyewitness identification both for judges deciding admissibility and for jurors trying to evaluate the real weight of the evidence. This, in turn, brings about an unintended but deeply disturbing result: the improper use of a suggestive procedure tends to make it more likely that courts and juries will find the identification reliable. The Manson Court, of course, assumed exactly the opposite was true, that juries would realize that suggestive procedures “vitiate the weight of the [identification] evidence” and would, accordingly, “discount” it (432 U.S. at 112 n.12).

The confound also provides a perverse incentive to law enforcement who believe a suspect is guilty and hope an eyewitness can provide evidence to support their case – the more suggestive an identification procedure, the more likely an identification will be made, the more confirming feedback the witness will receive, and the more likely the witness will be certain about the identification itself, the opportunity to view, and the degree of attention paid. While the Manson Court recognized its approach would not “significantly” deter the use of suggestive police procedures, it still envisioned, misguided as its expectations were, that its two-part test would curtail police suggestion to some extent, and it certainly did not intend to create an impetus for law enforcement to conduct biased lineups (Manson, 432 U.S. at 112). (“Although the per se approach has the more significant deterrent effect, the totality approach also has an influence on police behavior. The police will guard against unnecessarily suggestive procedures under the totality rule, as well as the per se one, for fear that their actions will lead to the exclusion of identifications as unreliable.”) Since the Perry Court labeled deterrence of police misconduct the “primary aim” of the Due Process analysis, it follows, whenever it reaches the issue, it should seriously consider “renovating” the Manson “balancing” test to prevent the confound from actually rewarding police misconduct.

Focus Is Exclusively On Police Misconduct

The seminal identification cases of the late 1960s and 1970s arose in the context of a contentious Supreme Court jurisprudence focused on the utility of the exclusionary rule as a remedy against misconduct by state actors. However, given our contemporary scientific knowledge that eyewitness memory is best understood as trace evidence susceptible to contamination from a wide spectrum of sources, it would be an error to scrutinize identification evidence only through the prism of police misconduct. Unlike the law, science does not differentiate between intentional and unintentional suggestion, since the good faith of a police officer is unrelated to the contaminating effects of police conduct on memory. Moreover, the linchpin of admissibility should be reliability, not whether the identification testimony was elicited by state or non-state actors.

To be sure, suggestive police procedures can taint the memory of an eyewitness and render any subsequent identification unreliable, but equally pernicious contamination of eyewitness memory is often brought about by sources unconnected to law enforcement – family members, friends, other witnesses to the same event, media reports, or simply the passage of time. Therefore, focusing solely on state action will surely miss nonstate factors that contaminate eyewitness memory and fatally undermine the reliability of the identification evidence. State court decisions holding that non-state suggestion can contaminate eyewitness memory, as either a state constitutional matter or pursuant to their supervisory powers, are better suited to build on the growing, robust body of scientific research from experimental psychologists and neuroscientists about the malleability of memory than the more restrictive approach adopted by the Supreme Court in Perry. Indeed, in some cases, estimator variables alone could demonstrate that identification evidence was so weak it should be suppressed, or at least the jury should be instructed to treat it with great caution and distrust. Under the Manson framework, a defendant cannot claim that estimator variables so undermine the reliability of the eyewitness identification evidence as to render the admission of that evidence a violation of due process. Instead, the defendant’s recourse will likely be limited to remedies available under the rules of evidence and procedure.

The All-Or-Nothing Test Forgoes Helpful Intermediate Remedies, Such As In Limine Rulings And “Contextual” Jury Instructions, Based On Findings Made At Pretrial Judicial Assessments Of Reliability

When courts apply Manson, their purpose is usually limited to answering one question: to suppress or not to suppress the identification evidence. Once courts decide that issue, they conceive of their mission as complete. The problem is that since courts rarely suppress identification evidence, they rarely see any purpose in identifying suggestive procedures that increase the risk of error or making findings about other factors relating to the event or the witness which tend to decrease the reliability of the identification.

Intermediate remedies short of suppression, including in limine rulings (such as limiting testimony based on artificially inflated self-reports about certainty and description) and “contextual” instructions (such as telling the jury that failure to comply with certain best practices can increase the risk of misidentification), would result in comprehensive assessments of reliability, which would require identifying and understanding key estimator and system variables. In this way, intermediate remedies would generate a more substantive judicial screening process, more reliable evidence, and more accurate verdicts.

Failure To Provide Jurors With “Context” And Guidance To Correct Misconceptions About Eyewitness Memory

After refocusing the analysis of eyewitness identification evidence on reliability and ensuring that juries would not be deprived of critical, if “flawed,” evidence (“evidence with some element of untrustworthiness is customary grist for the jury mill”), the Manson Court was “content to rely upon the good sense and judgment of American juries” (432 U.S. at 116). The Court felt that “[j]uries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature” (Id.).

Unfortunately, long-standing research studies show that jurors have great difficulty distinguishing between accurate and inaccurate eyewitnesses. See Tanja Rapus Benton et al., Has Eyewitness Testimony Research Penetrated the American Legal System? A Synthesis of Case History, Juror Knowledge, and Expert Testimony, in The Handbook of Eyewitness Psychology: Memory for People 453 (R.C.L. Lindsay et al. eds. 2007). Mistaken eyewitnesses are telling the truth as they believe it, and thus the cognitive faculties jurors usually deploy in making credibility judgments about lying witnesses do not work in this context. This also explains why cross-examination – the supposed great engine for uncovering truth – often sputters in the face of an honest but mistaken eyewitness, is insufficient, on its own, to guard against wrongful convictions based on mistaken identifications (as both the DNA exonerations and empirical study show), and serves as an inadequate substitute for expert testimony or jury instructions. See Jules Epstein, The Great Engine That Couldn’t: Science, Mistaken Identifications and the Limits of Cross-Examination, 36 STETSON L. REV. 727 (2007); Wells (1995), Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 LAW & HUM. BEHAV. 603, 609. (“Cross-examination, a marvelous tool for helping jurors discriminate between witnesses who are intentionally deceptive and those who are truthful, is largely useless for detecting witnesses who are trying to be truthful but are genuinely mistaken.”) Research shows that jurors have fundamental misconceptions about eyewitness memory. See, e.g., Melissa Boyce et al., Belief of Eyewitness Identification Evidence, in THE HANDBOOK OF EYEWITNESS PSYCHOLOGY: MEMORY FOR PEOPLE 501 (R.C.L. Lindsay et al. eds. 2007); Elizabeth F. Loftus et al., EYEWITNESS TESTIMONY: CIVIL AND CRIMINAL (4th ed. 2007); Brian L. Cutler et al., Juror Sensitivity to Eyewitness Identification Evidence, 14 LAW & HUM. BEHAV. 185–191(1990); Richard S. Schmechel et al., BEYOND THE KEN? TESTING JURORS’ UNDERSTANDING OF EYEWITNESS RELIABILITY EVIDENCE (2006); Tanja Rapus Benton et al., Eyewitness Memory is Still Not Common Sense: Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts, 20 APPLIED COGNITIVE PSYCHOL. 115 (2006). Jurors tend to believe that memory works like a videotape; generally misunderstand the effect of confirming feedback on the self-reported factors in Manson; do not understand the effects of biased witness warnings; are not inherently sensitive to estimator variables such as disguises, weapon focus, violence during the event, retention intervals between the event and the identification procedure, foil bias, and cross-race identifications; tend to rely heavily on eyewitness factors that are not good indicators of accuracy (particularly the witness’s confidence in her identification); overestimate eyewitness identification accuracy rates; and are not familiar with the trace evidence analogy. It is, therefore, critically important to correct these scientifically incorrect notions and provide jurors with “context” or guidance about eyewitness testimony that is firmly grounded in sound science.

Failure To Provide Significant Deterrence Of Suggestive Identification Procedures

The Manson Court lamented the “inflexibility” and “rigidity” of the exclusionary rule and acknowledged that deterrence of improper police practices would be significantly diminished by not suppressing out-of-court identification procedures (432 U.S. at 114). The Supreme Court has now taken a different view of the importance of police deterrence, a view that supports the adoption of intermediate remedies that enforce best practices while informing juries accurately about the risks created by violations of best practices. In this way, courts can achieve a greater measure of deterrence while also providing much needed guidance to the jury.

State Law Challenges To The Manson Balancing Test

While the United States Supreme Court has not yet demonstrated an interest in reevaluating the existing legal framework for evaluating eyewitness identification evidence, state courts – which have firsthand experience with both the range of eyewitness identification evidence offered at trials and the human cost of “miscarriages of justice” resulting from eyewitness misidentifications – have indicated a willingness to reevaluate the existing legal framework.

The most comprehensive example of this is the New Jersey Supreme Court’s decision in State v. Henderson, discussed below. While a full survey of the changing national landscape is beyond the scope of this research paper, it is worth mentioning a few examples.

In September 2011, recognizing the role of eyewitness misidentification in wrongful convictions, the Massachusetts Supreme Judicial Court directed that a study group be convened to address all aspects of the handling of eyewitness identification evidence, from law enforcement practices to admissibility standards and the treatment of the evidence by courts (Commonwealth v. Walker, 460 Mass. 590, – n.16 (2011)). The court explained, “Our convening of a study committee on eyewitness identification reflects our willingness to revisit our jurisprudence regarding such evidence . . . and to consider, among other alternatives, the approach established in New Jersey . . .” Indeed, the study group ultimately created is comprised of attorneys, judges, and members of law enforcement and has been divided into subcommittees focusing on hearings, jury instructions, and police procedures.

The Oregon Supreme Court is considering a case, State v. Lawson, involving eyewitness identification. The court will consider several questions including whether any error in admitting eyewitness testimony in suggestive identification cases can be cured at trial by cross-examination, expert testimony, closing arguments, and jury instructions.

Other state courts (both trial and appellate) have stopped short of reconsidering the entire legal framework but have instead eliminated those parts of the Manson test not supported by science (such as the use of certainty as a reliability factor) and strengthened protections available to defendants against whom eyewitness identification evidence is offered. Typically, these protections have been in the form of expert testimony and jury instructions. The Texas Court of Criminal Appeals recently found that the trial court abused its discretion in excluding an eyewitness identification expert, which was “reliable, relevant evidence that would ‘assist the trier of fact’ by increasing the jurors’ awareness of biasing factors in eyewitness identification.” Tillman v. State, No. PD-0727-10, slip. op. at 35 (October 5, 2011) (internal citations omitted). In the past several years, the New York Court of Appeals has issued a number of rulings endorsing scientific research in the area and reversing lower courts’ refusal to admit expert testimony. See, e.g., People v. LeGrand, 8 NY3d 449, 452 (2007); People v. Abney, 13 NY3d 251, 267 (2009); and People v. Santiago 17 NY3d ____,2011 NY Slip Op 07303 (2011).

Finally, courts that either lack the power to reconsider the entire legal framework or have yet to be presented with a case or controversy that raises the issue have indicated an interest in revisiting the existing legal framework. In a concurring opinion in State v. Ferguson, 804 N.W.2d 586 (2011), Minnesota Justice Anderson acknowledged the extensive science relating to eyewitness identification evidence, the problem of eyewitness misidentification, and discussed at length the New Jersey Supreme Court’s decision in Henderson. Justice Anderson concluded:

I hope that the district court will carefully consider whether the defects in the photo lineup procedure used here and the recent developments in social science require admission of eyewitness identification expert testimony and/or a cautionary jury instruction. Moreover, the court should look closely at New Jersey’s safeguards and determine if those safeguards are appropriate here. Specifically, the court should consider the reliability of the eyewitness identification in light of the recent New Jersey Supreme Court decision, in addition to the factors our court has set out in Miles and Helterbridle. If the expert eyewitness testimony is not “otherwise appropriate,” the court should consider alternative approaches to educating jurors on the variables that “can lead to misidentifications.” As our courts and jurors grow to understand the science of eyewitness identification, we can better meet the “‘twofold aim . . . that guilt shall not escape or innocence suffer.’”

(Id. at 609–610).

State Of New Jersey V. Henderson

In 2011, the New Jersey Supreme Court became the first court in the nation to reject the flawed Manson balancing test, finding that in “the 34 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.” State v. Henderson, 27 A.3d 872, 877 (NJ 2011).

The New Jersey Supreme Court’s decision was the direct result of the 1999 issuance of mandatory guidelines for conducting eyewitness identification procedures by New Jersey’s Attorney General. Office of the Attorney Gen., N.J. Dep’t of Law and Pub. Safety, Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures 1 (2001) (“Attorney General Guidelines” or “Guidelines”). Under New Jersey law, the Guidelines – which provided for the blind administration of identification procedures, the provision of instructions to witnesses, proper lineup construction (including minimum number of fillers, proper filler selection, one suspect per lineup), sequential presentation when possible, avoidance of feedback to the witness, and recording of the procedure, to include a witness confidence statement – were binding on all law enforcement agencies in New Jersey.

Henderson came to the New Jersey Supreme Court on appeal following a conviction for various crimes, including reckless manslaughter, aggravated assault, and various weapons charges, which arose out of a 2003 murder in a Camden, New Jersey, apartment. The primary evidence against Henderson at trial consisted of the statement of a single eyewitness and an investigating officer’s testimony about Henderson’s post-arrest statement (Id. at 879–880). During the course of the investigation, the eyewitness – who, at the time of the crime, had been held at gunpoint in a dark, narrow hallway by a stranger – was presented with an eight-person photographic lineup by a blind administrator, consistent with the Attorney General’s Guidelines (Id. at 880). The witness was provided with instructions and viewed the lineup members sequentially, in keeping with the Attorney General’s Guidelines. The witness quickly eliminated five of the photographs, then eliminated a sixth, after which he said he “wasn’t 100 % sure of the final two pictures” (Id). At that point, the independent administrator left the room and the two investigating offers entered and conferred with the witness, thereby violating the Attorney General’s Guidelines that the identification procedure administrator be blind. Thereafter, the witness selected the police suspect’s photograph – that of Henderson.

When it reviewed Henderson’s appeal in 2009, the New Jersey Supreme Court declared that the trial record was inadequate to “test the current validity of [New Jersey] state law standards on the admissibility of eyewitness identification” and directed that a plenary hearing be held “[t]o consider and decide whether the assumptions and other factors reflected in the two-part Manson/Madison test, as well as the five factors outlined in those cases to determine reliability, remain valid and appropriate in light of recent scientific and other evidence” (Henderson, No. A-8-08, 2009 WL 510409, at *1–2).

The Court directed the parties, together with Amici Innocence Project and Association of Criminal Defense Lawyers of New Jersey, to participate in remand proceedings, which were presided over by Special Master Geoffrey Gaulkin, a retired New Jersey state appellate judge appointed by the New Jersey Supreme Court to handle the matter. Judge Gaulkin conducted the proceedings “more as a seminar than an adversarial litigation.” The parties submitted, and Judge Gaulkin considered, extensive scientific materials including more than 200 published scientific studies, articles, and books. Judge Gaulkin presided over 10 days of evidentiary hearings, at which seven expert witnesses – leading scientists in the field of eyewitness identification study – testified, and he received detailed proposed findings of fact and conclusions of law and heard oral argument. On June 18, 2010, based on his consideration of all of the information presented by the parties, Judge Gaulkin issued his report (the “Special Master’s Report”).

The Special Master’s Report endorsed the remedy set forth by the Innocence Project in its proposed legal findings, “The Renovation of Manson: A Dynamic New Legal Architecture For Assessing and Regulating Eyewitness Evidence,” as “wide-ranging, multi-faced and highly detailed,” and proposed that the current legal framework be modernized:

-to maintain the Manson/Madison principle that reliability is the linchpin of the inquiry, to expand that inquiry to include all the variables unaddressed by Manson/Madison and to assure that judges and jurors are informed of and use the scientific findings that bear on reliability

The Special Master’s Report, At 84–86 (Citations Omitted And Emphasis Added)

The Special Master’s proposed new design had two core elements: first, that courts treat eyewitness identification evidence as trace and scientific evidence, by placing the initial burden on the prosecution to demonstrate the reliability of the evidence, and second, to take “all available steps” to ensure that judges and juries are informed of and guided by scientific findings (Id).

In issuing its final decision in Henderson, 27 A.3d 872 (2011), the New Jersey Supreme Court adopted many of the recommendations set forth in the Special Master’s Report. The New Jersey Supreme Court endorsed the scientific research considered by the Special Master, describing it as the “gold standard in terms of the applicability of social science research to the law” (Id. at 916).

Based on its review of the scientific research and the role of eyewitness misidentifications in wrongful convictions, the New Jersey Supreme Court took unprecedented action and became the first court in the nation to reject the Manson balancing test in favor of a totality of the circumstances test that would allow for the consideration of all relevant evidence – whether relating to system or estimator variables – when making a determination about the reliability of eyewitness identification evidence. (New York, Massachusetts, and Wisconsin follow a per se rule requiring suppression of out-of-court identifications that were the product of unnecessarily suggestive identification procedures. However, those courts then engage in a second step analysis to determine whether the in-court identification has a basis independent of the suggestive procedure for the identification. The independent basis test in these jurisdictions essentially mirrors the reliability factors set forth in Manson. Thus, it cannot be said that these jurisdictions have abandoned the Manson balancing test. See, e.g., People v. Adams, 423 N.E.2d 379, 384 (NY 1981); Commonwealth v. Martinez, 67 Mass. App.Ct. 788 (2006); State v. Dubose, 699 N.W.2d 582, 596 (Wise and Safer 2003) The revised legal framework set forth in Henderson has two principal features: pretrial hearings that are granted whenever a defendant can show “some evidence of suggestiveness that could lead to mistaken identification” (Id. at 920) and which will allow for the presentation of all system and estimator variables once the defendant has met this burden, and enhanced jury instructions that will seek to educate jurors about all aspects of eyewitness identification and memory, and may be given to the jury at the close of evidence as well as during the trial, at the time the witness testifies (Id. At 925–28). Additionally, the Henderson decision extended the court’s prior decision in State v. Cromedy, 727 A.2d 457 (1999), in which the New Jersey Supreme Court held that jury instructions on the reliability of cross-racial identifications are necessary when “identification is a critical issue in the case” and there is no independent evidence corroborating the identification to require jury instructions on the reliability of cross-racial identifications “whenever crossracial identification is in issue at trial.” The Henderson court extended its ruling in Cromedy based on additional scientific research that emerged over the 12 years since the court had first considered the issue as well as the “more complete record about eyewitness identification in general” (Id. at 926). In considering remedies available at trial, Henderson also allows for the possibility of expert testimony at trial, provided it is otherwise admissible under New Jersey law (Id. at 878).

Finally, the Henderson opinion endorsed many of the police practices already required by the Attorney General’s Guidelines and, through the court’s supervisory powers, required additional police practices, including requiring that law enforcement inquire whether witnesses have had any communications with third parties concerning their observations and, if so, to take a written statement of the substance of those communications which must be disclosed to defense counsel (Id. at 909).

The Henderson decision has been hailed by the legal and scientific communities as a landmark ruling for its recognition that the Manson balancing test fails to achieve its objective and its attempt to offer a new approach that brings to bear the vast body of scientific research on the problem of assessing the reliability of eyewitness misidentification. Some have expressed concern with the court’s reliance on enhanced jury instructions, as the scientific literature is sparse and somewhat mixed on the efficacy of jury instructions in educating jurors about complex aspects of memory and perception. The ultimate test of the success of the Henderson model will, of course, be seen in courtrooms throughout New Jersey in years to come.

Conclusion

More than 30 years of scientific research and more than 200 wrongful convictions confirmed by DNA make clear that the test for admissibility of eyewitness identification evidence in criminal trials cannot achieve its stated goal of ensuring reliability. Courts across the country, drawing lessons from scientific research and the cases of the wrongfully convicted, have begun to question the existing legal framework. Some have strengthened protections through expert testimony and comprehensive jury instructions. The New Jersey Supreme Court has rejected the Manson balancing test in its entirety and developed a new legal framework that holds enormous promise for improving both the collection of eyewitness identification evidence and the evaluation by courts and juries of the reliability of that evidence.

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