AuthorOmdal, Jens

TABLE OF CONTENTS INTRODUCTION I. Background and Data A. How Memory Works B. Police Influence II. Relevant Case Law A. The Overruling of Wade, Gilbert, and Stovall B. The Biggers Factors C. Estimator, System, and Psychological Variable III. Past Proposals A. Changes at the Interviewing Level B. Changes at the Trial Level C. A Call for Reform D. Habib Abdal IV. Proposed Solution A. Affording the Third-Party Attorney CONCLUSION INTRODUCTION

On April 23, 2007, Jerry Miller walked out of a courtroom a free man for the first time in over twenty-five years. (2) On a late night in the middle of October 1981, a middle aged white woman, was walking to her car on the top floor of a parking garage in Chicago. (3) As she opened her car door, a black man approached her, and pushed her inside the vehicle. (4) Inside her car, he beat her, robbed her, and brutally raped her. (5) She was told that if she opened her eyes he would kill her. (6) She was forced into the trunk of her car and he attempted to drive out of the parking garage. (7) At the exit, two employees stopped him, causing him to flee the vehicle. (8) The employees heard the victim cry for help from the trunk. (9)

A member of the Chicago Police Department saw the sketch of the assailant, based on the description given by the two employees, (10) and he thought it resembled Jerry Miller whom he had seen several days earlier looking into car windows. (11) The victim was incapable of making a positive identification of Miller, (12) and at trial she hesitated when asked to identify him. (13) She tentatively identified him based on his facial hair. (14) However, the employees positively identified Miller at trial. (16)

During the investigation the victim's clothing was found with semen on it, however no DNA tests were prepared for trial. (16) Both Miller and his father testified under oath to watching a Sugar Ray Leonard boxing match on the night of the crime. (17) Miller was convicted of rape, robbery, and kidnapping on October 1, 1982. (18) Twenty-three years after Miller's conviction, the Innocence Project(19) picked up his case, locating the slip and administering a DNA test, ultimately eliminating him as a suspect. (20) The results of the DNA test positively identified Robert Weeks as the perpetrator; he was already in custody for a different crime. (21) After the test disqualified Miller, the State Attorney's Office finally acknowledged his innocence and granted him a pardon. (22) In 2007 Miller became the two-hundredth person exonerated through DNA evidence. (23)

This article will address an ongoing problem in our judicial system today: erroneous eyewitness testimony that produces flawed convictions. The nightmares of eyewitness misidentification can only be ended by the implementation of an impartial third-party into the police investigative process to neutralize its suggestive effects. Part I will present the data that supports the need for reform, including a discussion on how our memories function and strategies used by law enforcement that are particularly manipulative. Part II analyzes the Supreme Court's relevant decisions. Part III will discuss some of the reforms that have been implemented in various jurisdictions. Part TV proposes a procedural reform that if implemented, would decrease the number of mistaken convictions and increase the accuracy of the criminal justice system. It also includes several options for funding this new addition to the criminal justice system.


    Once a case has gone to trial and the witness identifies, either rightly or wrongly, a perpetrator, the confidence of the witness will be unshakable and her certainty will have never been higher; despite the fact that an eyewitness's confidence in his or her identification has little relationship to identification accuracy because of the many post-event factors that affect confidence but not accuracy. (24) Mistaken eyewitnesses are highly convincing because of their sincerity and persuasiveness, even though they are wrong.

    "Given our commitment to the due process model, and the presumption of innocence, wrongful conviction has to be rated as the most serious error our system of justice can make." (25) According to Rob Warden at Northwestern University School of Law, erroneous eyewitness testimony is the number one cause of wrongful convictions in the United States each year. (26) In a study of over 340 criminal convictions, eyewitness error played a role in 64% of wrongful convictions. (27) To place the extent of this problem into perspective, "[a] false conviction rate of 10% would imply almost 100,000 wrongful felony convictions every year." (28) Following a 1987 survey, eyewitness testimony against defendants is the primary source of evidence in over 80,000 criminal trials each year. (29) Due to the substantial reliance upon eyewitness testimony, it is a wonder that it is not monitored under closer scrutiny given the obvious flaws. The United States Court of Appeals for the Second Circuit addressed this issue stating:

    There can be no reasonable doubt that inaccurate eyewitness testimony may be one of the most prejudicial features of a criminal trial. Juries, naturally desirous to punish a vicious crime, may well be unschooled in the effects that the subtle compound of suggestion, anxiety, and forgetfulness in the face of the need to recall often has on witnesses. Accordingly, doubts over the strength of the evidence of a defendant's guilt may be resolved on the basis of the eyewitness' seeming certainty when he points to the defendant and exclaims with conviction that veils all doubt. 'That's the man!' (30) The Second Circuit is highlighting the fact that juries place great faith in eyewitness testimony acting under the misconception that perceptual memory is like a video that can be replayed. (31) However memory is much more malleable and susceptible to error. (32)

    1. How Memory Works

      Our memories can very easily be contaminated and molded by a myriad of factors. Studies have shown that the phrasing of a question can manipulate memory. (33) For example, when people are asked about the presence of a barn in a video in which there was no barn, many will remember seeing a barn. (34) Also, when asked how fast the cars were moving when they "smashed" into each other, people remembered them going faster, as opposed to when they were asked how fast the cars were going when they "hit" each other. (35) Similar to the way the interviewer can manipulate our memories, so too can we deform our own recollection. Every time we tell and retell a story, we add a layer of distortion to the facts, which affects our underlying memory of the events. (36) Beyond misremembering events and details, people can remember false information if they are told or asked about it. In fact, our memories are so easily influenced by our surroundings that people have "remembered" committing heinous crimes that they did not commit. (37) Furthermore, high levels of stress impede our ability to accurately perceive our surroundings and to record our sensations in our memory for future recollection.

      Out of 290 exoneree cases reviewed, almost all of the eyewitnesses expressed complete confidence at trial when identifying their attacker. (38) However, when these same eyewitnesses first identified the defendants - long before trial - they were not as certain. (39) In fact, in 57% of these cases the "witness had earlier not been certain at all a glaring sign that identification was not reliable." (40) The "data suggests that eyewitnesses make more errors each time they need another viewing to make their identification." (41) These statistics show how malleable certainty can be, as it increases with each identification procedure. Knowing that our memories are so brittle, involving so many factors that have potential to permanently misconstrue our recollection, confidence at the time of trial can be very misleading.

    2. Police Influence

      Police remarks that influence a witness can be as subtle as providing comforting statements, or as indiscreet as intentionally pressuring statements such as where the officer tells the witness to identify a person. (42) Both kinds of remarks are manipulative and can plant seeds in the mind of the witness that if left to sprout and grow will become sturdy oaks at trial. Without someone in the room to counter these statements and provide an objective line of questioning, the police procedures will go unchecked.

      Police also use a tactic called "show ups," where a witness is asked if a single person is the attacker. (43) These are inherently suggestive as they provide no other alternative for the victim to choose, and they can be made more suggestive if the suspect is presented in a squad car or handcuffs. (44) When police are free to engage in this type of investigative procedure without restraint or pushback, it is more likely that a witness will answer affirmatively, inculpating an innocent individual.

      A third suggestive procedure used by police is the use of lineups. (45) This is particularly suggestive when the fillers in the lineup do not look anything like the eyewitness' description of the culprit. (46) Law enforcement can raise confidence in an eyewitness that a certain suspect is in fact the culprit if that suspect is the only person repeated in multiple viewings, because the individual will look more familiar. (47)

      Stemming from the first problem is the second recurring problem of unreliable identifications. The truth that our memories are not steel traps is a phenomenon for many eyewitnesses who seem so confident in their ability to recollect. The confidence that an eyewitness exudes at trial was brewed long before.


    The Supreme Court has frequently examined the shortcomings of eyewitness testimony. First, in United States v. Wade, the Supreme Court considered whether courtroom identifications of an accused at trial are to be excluded...

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