Flipping a Coin: A Solution for the Inherent Unreliability of Eyewitness Identification Testimony
By most accounts, mistaken eyewitness identification is the leading cause of wrongful convictions in the U.S. As DNA evidence frees ever more people wrongfully convicted on the basis of mistaken identification testimony, it is worth asking: “What about those cases where there is no DNA evidence?” Study after study shows that eyewitness identifications are unreliable. Courts pay lip service to the concept of reliability, but even after identifications are tainted by suggestion, very few courts actually exclude this tainted identification testimony.
And identifications are powerful. Jurors tend to believe identification testimony more than any other kind. And judges are people too — even though they may know the problems with the probativity of this kind of testimony, they may be as easily swayed as jurors. This article surveys the social psychological research on identifications and proposes that courts exclude identification testimony unless the witness was previously acquainted with the suspect. Following this recommendation would affect only about 1.5% - 2.5% of felony cases, which does not seem too high a burden for greatly decreasing the number of false convictions.
Civil Rights and Discrimination | Courts | Criminal Law | Criminal Procedure | Evidence
Date of this Version
Noah A. Clements, "Flipping a Coin: A Solution for the Inherent Unreliability of Eyewitness Identification Testimony" (March 10, 2006). bepress Legal Series. bepress Legal Series.Working Paper 1113.