CHAPTER 3 EYEWITNESS IDENTIFICATION

• Jurisdiction: North Carolina

Chapter 3 Eyewitness Identification

A. Introduction

In Chapter One we noted the difficulties associated with being able to identify wrongful conviction cases and measure their true incidence. Those limitations greatly compromise our ability to pinpoint and understand their principal causes. Consider, for example, the following statement: "Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing."¹ The Innocence Project has reported that 175 of the first 239 wrongful conviction cases revealed by later DNA testing involved misidentification of the defendant by one or more eyewitnesses.² We could quibble with the computation included in the statement: 175 out of 239 (73.2%) is close to, but not "more than 75% of convictions overturned through DNA testing." However, our real concern lies with the logic of conjoining that computation with the assertion that "[e]yewitness misidentification is the single greatest cause of wrongful convictions nationwide...." We have no reliable means of assessing that conclusion. For the several reasons that we previously considered, it is hazardous to generalize from what is known about wrongful convictions exposed by DNA analysis—which necessarily are confined to crimes that yield biological evidence, and consist largely of sexual assaults — to the unknown but vastly more expansive universe of all cases of wrongful conviction.

Our admittedly imperfect knowledge nevertheless leaves us with little hesitation in concluding that eyewitness errors are a very important source of wrongful convictions. Many courts and policymakers have recognized as much, leading them to design procedures to try to prevent suggestiveness and enhance reliability when witnesses are first asked to identify suspects, and to help judges and jurors evaluate witnesses' subsequent identification testimony. We begin this chapter by examining Supreme Court decisions governing the admissibility of eyewitness identification testimony. We then consult social science research findings bearing on perception, memory, and recall, and consider related policy initiatives regarding eyewitness identification procedures. Next, we consider evolving legal doctrine in the state courts. We conclude by exploring the admissibility in criminal trials of expert testimony bearing on the reliability of eyewitness identification.

B. Supreme Court Doctrine Governing the Admissibility of Eyewitness Identification Testimony

1. Line-Ups and Show-Ups

"Corporeal" identifications, in contrast to photo arrays, computer-generated imagery, or the work of a sketch artist, involve the physical presentation of a suspect before one or more witnesses to a crime. They are conducted by using line-ups (which include multiple individuals) or show-ups (usually involving the display of a single suspect). In 1967, toward the end of Earl Warren's tenure as Chief Justice, the Supreme Court announced three decisions on the same day bearing on corporeal eyewitness identification. Known as "the Wade trilogy," United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) signaled the justices' concerns about suggestive identification procedures, yet also their recognition that eyewitness testimony is indispensable to effective law enforcement and the prosecution of crimes. The three cases presented significantly different legal issues.

In Wade, a man wearing "a small strip of tape on each side of his face" robbed a bank in September 1964. He pointed a pistol at the two employees present, a cashier and a vice president, ordered them to "put the money in the bag," and then fled in a stolen car driven by an accomplice. Six months later, on March 23, 1965, Billy Joe Wade was indicted for the crime. He was arrested ten days later and an attorney was appointed to represent him on April 26.

Fifteen days later an FBI agent, without notice to Wade's lawyer, arranged to have the two bank employees observe a lineup made up of Wade and five or six other prisoners and conducted in a courtroom of the local county courthouse. Each person in the line wore strips of tape such as allegedly worn by the robber and upon direction each said something like 'put the money in the bag,' the words allegedly uttered by the robber. Both bank employees identified Wade in the lineup as the bank robber.

At trial the two employees, when asked on direct examination if the robber was in the courtroom, pointed to Wade. The prior lineup identification was then elicited from both employees on cross-examination....

[T]he testimony of the identifying witnesses elicited on cross-examination revealed that those witnesses were taken to the courthouse and seated in the courtroom to await assembly of the lineup. The courtroom faced on a hallway observable to the witnesses through an open door. The cashier testified that she saw Wade 'standing in the hall' within sight of an FBI agent. Five or six other prisoners later appeared in the hall. The vice president testified that he saw a person in the hall in the custody of the agent who 'resembled the person that we identified as the one that had entered the bank.

After rejecting Wade's argument that his compelled appearance in the line-up and utterance of the words violated his 5th Amendment right against compelled self-incrimination, the justices considered whether, under the 6th Amendment, the "courtroom identifications of an accused at trial are to be excluded from evidence because the accused was exhibited to the witnesses ... at a post-indictment line-up ... without notice to and in the absence of [his] court-appointed counsel." Justice Brennan's opinion for the Court included a lengthy discussion of recognized threats to reliable identification testimony.

[T]he confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: 'What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent—not due to the brutalities of ancient criminal procedure.' The Case of Sacco and Vanzetti 30 (1927). 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. A commentator has observed that '(t)he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor — perhaps it is responsible for more such errors than all other factors combined.' Wall, Eye-Witness Identification in Criminal Cases 26. Suggestion can be created intentionally or unintentionally in many subtle ways. And the dangers for the suspect are particularly grave when the witness' opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.

Moreover, ' [i]t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.'⁸

... Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the postindictment lineup was a critical stage of the prosecution at which he was 'as much entitled to such aid (of counsel) * * * as at the trial itself.' Powell v. State of Alabama, 287 U.S. 45, at 57. Thus both Wade and his counsel should have been notified of the impending lineup, and counsel's presence should have been a requisite to conduct of the lineup, absent an 'intelligent waiver.'...

In the companion case of Gilbert v. California, which similarly involved a post-indictment line-up conducted in the absence of the accused's counsel, the Court announced a rule of automatic, or per se exclusion of the testimony of the witnesses' line-up, or "out-of-court" identification of the defendant.

Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup. In the absence of legislative regulations adequate to avoid the hazards to a fair trial which inhere in lineups as presently conducted, the desirability of deterring the constitutionally objectionable practice must prevail over the undesirability of excluding relevant evidence.

In Wade, however, the Court adopted a more nuanced approach regarding whether witnesses who had participated in a pre-trial identification conducted in violation of the accused's right to counsel would be permitted to testify at the trial that they recognized the defendant as the perpetrator of the crime. Wade held as follows concerning the admissibility of the "in-court" identification of the defendant:

We come now to the question whether the denial of Wade's motion to strike the...