In eyewitness identification, in criminal law, evidence is received from a witness "who has actually seen an event and can so testify in court".Law.com Legal Dictionary Online Eyewitness testimony is often seen by jurors as the most compelling type of evidence. Because eyewitness testimony can be unreliable, courts have many ways of attempting to ensure its truthfulness, including cross-examination by opposing counsel, line-up requirements, jury instructions, and expert testimony to inform jurors of the potential risks of eyewitness testimony.
Nonetheless, the Innocence Project states that "Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.""Eyewitness Misidentification". This non-profit organization uses DNA evidence to reopen criminal convictions that were made before DNA testing was available as a tool in criminal investigations.
Even before DNA testing revealed wrongful convictions based on eyewitness identifications, courts recognized and discussed the limits of eyewitness testimony. The late U.S. Supreme Court Justice William J. Brennan, Jr. observed in 1980 that "At least since United States v. Wade, 388 U.S. 218 (1967), the Court has recognized the inherently suspect qualities of eyewitness identification evidence, and described the evidence as "notoriously unreliable", while noting that juries were highly receptive to it.Watkins v. Sowders, 449 U.S. 341 (1980) Similarly, in the United Kingdom, the Criminal Law Review Committee, writing in 1971, stated that cases of mistaken identification "constitute by far the greatest cause of actual or possible wrong convictions".Criminal Law Review Committee Eleventh Report, Cmnd 4991
Brennan said that "All the evidence points rather strikingly to the conclusion that there is almost nothing more convincing [to a jury] than a live human being who takes the stand, points a finger at the defendant, and says 'That's the one!'"Watkins v. Souders, 449 U.S. 341, 352 (1982) (Brennan, J. dissenting). Another commentator observed that the eyewitness identification of a person as a perpetrator was persuasive to jurors even when "far outweighed by evidence of innocence."Elizabeth Loftus, Eyewitness Evidence 9 (1979).
Laws on eyewitness evidence in criminal cases
United States The legal standards addressing the treatment of eyewitness testimony as evidence in criminal trials vary widely across the United States on issues ranging from the admissibility of eyewitness testimony as evidence, the admissibility and scope of expert testimony on the factors affecting its reliability, and the propriety of jury instructions on the same factors. In New Jersey, generally considered a leading court with respect to criminal law, a report was prepared by a special master during a remand proceeding in the case of New Jersey v. Henderson which comprehensively researched published literature and heard expert testimony with respect to eyewitness identification. Based on the master's report the New Jersey court issued a decision on August 22, 2011 which requires closer examination of the reliability of eyewitness testimony by trial courts in New Jersey. Perry v. New Hampshire, a case which raised similar issues, was decided January 11, 2012 by the U.S. Supreme Court. which in an 8–1 decision decided that judicial examination of eye-witness testimony was required only in the case of police misconduct.Held: The Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.The preeminent role of the jury in evaluating questionable evidence was cited by the court.
Detectives interrogating children in the court perhaps lack the necessary training to make them effective perhaps “ more work needs to be done in finding effective ways of helping appropriate members of the legal profession to develop skills and understanding in child development and in talking with children”
Admissibility The federal due process standard governing the admissibility of eyewitness evidence is set forth in the U.S. Supreme Court case of Manson v. Brathwaite. Under the federal standard, if an identification procedure is shown to be unnecessarily suggestive, the court must consider whether certain independent indicia of reliability are present, and if so, weigh those factors against the corrupting effect of the flawed police procedure. Within that framework, the court should determine whether, under the totality of the circumstances, the identification appears to be reliable. If not, the identification evidence must be excluded from evidence under controlling federal precedent.Manson, 432 U.S. 98 (1977).
Certain criticisms have been waged against the Manson standard, however. According to legal scholars, "the rule of decision set out in Manson has failed to meet the Court's objective of furthering fairness and reliability."See, e.g., Timothy O'Toole & Giovanna Shay, Manson v. Brathwaite Revisited: Toward a New Rule of Decision For Due Process Challenges to Eyewitness Identification Procedures, 41 Valparaiso L. Rev. 109 (2006). For example, the Court requires that the confidence of the witness be considered as an indicator of the reliability of the identification evidence. As noted above, however, extensive studies in the social sciences have shown that confidence is unreliable as a predictor of accuracy. Social scientists and legal scholars have also expressed concern that "the [Manson] list as a whole is substantially incomplete," thereby opening the courthouse doors to the admission of unreliable evidence.See id. at 113; Gary Wells, What is Wrong With the Manson v. Brathwaite Test of Eyewitness Identification Accuracy?, available here.
Expert testimony Expert testimony on the factors affecting the reliability of eyewitness evidence is allowed in some U.S. jurisdictions, and not in others. In most states, it is left to the discretion of the trial court judge. States generally allowing it include California, Arizona, Colorado, Hawaii, Tennessee (by a 2007 state Supreme Court decision), Ohio, and Kentucky. States generally prohibiting it include Pennsylvania and Missouri. Many states have less clear guidelines under appellate court precedent, such as Mississippi, New York, New Hampshire, and New Jersey. It is often difficult to tell whether expert testimony has been allowed in a given state, since if the trial court lets the expert testify, there is generally no record created. On the other hand, if the expert is not allowed, that becomes a ground of appeal if the defendant is convicted. That means that most cases that generate appellate records are cases only in which the expert was disallowed (and the defendant was convicted).
In those states where expert testimony on eyewitness reliability is not allowed, it is typically on grounds that the various factors are within the common sense of the average juror, and thus not the proper topic of expert testimony. To further expand jurors are " likely to put faith in the expert's testimony or even to overestimate the significance of results that the expert reports"
Polling data and other surveys of juror knowledge appear to contradict this proposition, however, revealing substantial misconceptions on a number of discrete topics that have been the subject of significant study by social scientists.See, e.g., Schmechel et al., supra note 17; 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).
Jury instructions Criminal defense lawyers often propose detailed jury instructions as a mechanism to offset undue reliance on eyewitness testimony, when factors shown to undermine its reliability are present in a given case. Many state courts prohibit instructions detailing specific eyewitness reliability factors but will allow a generic instruction, while others find detailed instructions on specific factors to be critical to a fair trial. California allows instructions when police procedures are in conflict with established best practices, for example, and New Jersey mandates an instruction on the cross-race effect when the identification is central to the case and uncorroborated by other evidence.State v. Cromedy, 727 A.2d 457 (N.J. 1999), available here.
Although instructions informing jurors of certain eyewitness identification mistakes are a plausible solution, recent discoveries in research have shown that this gives a neutral effect, "studies suggest that general jury instructions informing jurors of the unreliability of eyewitness identifications are not effective in helping jurors to evaluate the reliability of the identification before them"
Demonstratives Demonstratives about eyewitness accuracy and reliability can be used as illustrative aids in opening statements and closing arguments, and with expert testimony and eyewitness testimony. A repository of video illustrative aids exists offering tests and demonstrations to prove or show during trial that eyewitnesses can be unaware of people and objects, make incorrect judgments, misremember and invent memories, and differently perceive and misperceive objects and events,
England and Wales
PACE Code D Most identification procedures are regulated by Police and Criminal Evidence Act 1984 Code D.
Where there is a particular suspect In any cases where identification may be an issue, a record must be made of the description of the suspect first given by a witness. This should be disclosed to the suspect or his solicitor. If the ability of a witness to make a positive visual identification is likely to be an issue, one of the formal identification procedures in Pace Code D, para 3.5–3.10 is normally used, unless it would serve no useful purpose (e.g. because the suspect was known to the witnesses or if there was no reasonable possibility that a witness could make an identification at all).
The formal identification procedures are: Video identification Identification parade: If it is more practicable and suitable than video identification, an identification parade may be used. Group identification: If it is more suitable than video identification or an identification parade, the witness may be asked to pick a person out after observing a group. Confrontation: If the other methods are unsuitable, the witness may be asked whether a certain person is the person they saw.
Where there is no particular suspect If there is no particular suspect, a witness may be shown photographs or be taken to a neighbourhood in the hope that he recognises the perpetrator. Photographs should be shown to potential witnesses individually (to prevent collusion) and once a positive identification has been made, no other witnesses should be shown the photograph of the suspect.
Breaches of PACE Code D