§ 24.13 EYEWITNESS IDENTIFICATIONS

• Jurisdiction: United States

§ 24.13. EYEWITNESS IDENTIFICATIONS

The reliability of eyewitness identifications has long been a concern. As the Supreme Court wrote in a lineup case, "The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification."²¹⁸

Several factors cause misidentifications. First, cross-racial identifications present special problems.²¹⁹ Dr. Elizabeth Loftus, a prominent researcher in this field, noted that people "have greater difficulty in recognizing faces of another race than faces of their own race. This cross-racial identification problem is not due to the fact that people have greater prejudices or less experience with members of the other race."²²⁰ Second, "unconscious transference" may lead to misidentifications.²²¹ A witness who has seen an innocent suspect at an earlier time may misidentify that suspect because he "looks familiar." For example, a witness may view a photographic display that includes a picture of an innocent suspect. No identification is made. Later, the witness picks the suspect out of a lineup, unconsciously remembering the face from the photo display. Third, research indicates that the relationship between the accuracy of an identification and a witness's confidence in the identification of a stranger is seldom strong.²²² Indeed, two researchers have concluded that "the eyewitness accuracy-confidence relationship is weak under good laboratory conditions and functionally useless in forensically representative settings."²²³

Despite the mounting evidence of eyewitness misidentifications, many courts have excluded expert testimony concerning their unreliability because "the trustworthiness in general of eyewitness observations is not beyond the ken of the jurors."²²⁴ This resistance is changing.²²⁵ The present status of expert testimony on this subject is summed up as follows:

The use of expert testimony in regard to eyewitness identification is a recurring and controversial subject. Trial courts have traditionally hesitated to admit expert testimony purporting to identify flaws in eyewitness identification. Among the reasons given to exclude such testimony are that the jury can decide the credibility issues itself; that experts in this area are not much help and largely offer rather obvious generalities; that trials would be prolonged by a battle of experts; and that such testimony creates undue opportunity for confusing and misleading the jury.
Several courts, however, including our own, have suggested that such evidence

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