AuthorRosenthal, Lawrence

INTRODUCTION I. MANSON V. BRATHWAITE AND THE LIMITED SCOPE OF JUDICIAL GATEKEEPING IN THE ADMISSION OF EYEWITNESS IDENTIFICATION EVIDENCE A. Manson's Approach to Eyewitness Identification Evidence 1. The Road to Mans on 2. The Holding in Manson 3. The Critique of Manson B. State-Law Alternatives to Manson 1. Henderson and its Progeny 2. Per se Exclusionary Rules 3. Incremental Reforms C. The Limited Significance of the State-Law Alternatives to Manson 1. Henderson and its Progeny 2. Per se Exclusionary Rules 3. Incremental Reforms II. THE DIFFICULTIES OF BLACKSTONIAN REFORM A. The Effects of Prophylactic Reform 1. The Costs and Benefits of More Rigorous Identification Protocols 2. The Problematic Case for Blackstonian Prophylactic Rules B. Assessing Reliability in Light of the Totality of Circumstances 1. The Role of Corroborative Evidence 2. Corroborated Identifications and the Right to a Fair Trial 3. The Difficulty of Abandoning Manson CONCLUSION INTRODUCTION

More than a half-century ago, the Supreme Court wrote: "The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification." (1) Time has done little to alter this assessment; analyses of wrongful convictions continue to identify inaccurate eyewitness identification as a leading cause of the conviction of the innocent. (2)

The reasons why eyewitness identifications lead to wrongful convictions can be briefly summarized. (3) A large volume of research has disclosed a substantial error rate in witnesses' efforts to identify a suspect accurately, stemming from the difficulties that witnesses can experience in accurately perceiving and later recalling faces. (4) In particular, individuals have a tendency to select the individual in a lineup or other identification procedure who most resembles their recollection of the suspect, which injects a substantial risk of error into identification evidence. (5) The research also identifies a heightened risk of error when suggestive identification procedures are employed--for example, when only the suspect or his picture is shown to a witness (a "showup"), or the use of a lineup of individuals (actual or photographic) in which only the suspect fits the witness's previous description of the perpetrator, or when witnesses receive instructions or feedback encouraging them to make an identification. (6) Moreover, studies have found that jurors have limited ability to assess the reliability of eyewitness identifications and, instead, tend to over-believe eyewitnesses and discount the risk of eyewitness error. (7) As one commentary put it:

Unlike accomplice witnesses, the typical eyewitness [to a crime] is a passerby who has no motive to lie. Unlike circumstantial evidence, eyewitness testimony is directly probative of guilt and frequently expressed with a high degree of certainty. Unlike expert testimony, eyewitness testimony is immediately understood by even the most confused, inattentive, or ignorant juror. And unlike many other kinds of evidence, eyewitness testimony is rarely the subject of any cautionary instruction from the judge.... (8) In light of these problems, many have urged reforms to reduce the risk of error created by potentially suggestive identification procedures, such as training officers to avoid suggestive identification procedures; utilizing double-blind procedures in which witnesses and lineup administrators are unaware of the identity of the suspect; and instructing witnesses during lineups that the suspect or the suspect's picture might not be present and that they are free to make no identification. (9)

In Manson v. Brathwaite, (10) the Supreme Court addressed the question of whether an unreliable eyewitness identification can deprive a criminal defendant of the constitutional right to a fair trial under the Due Process Clause. The Court concluded that even when investigators utilize unnecessarily suggestive procedures, an ensuing identification should not be excluded from evidence absent a finding that it is unreliable in light of "the totality of the circumstances"--rejecting "a strict exclusionary rule or new standard of due process." (11) Under this approach, "if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth." (12) Manson rarely results in the exclusion of eyewitness identification evidence; a review of federal cases available on the Westlaw database from the date Manson was decided in 1977 until January of 2010, for example, found that identification evidence was excluded under Manson in only 3.54% of cases, despite the use of suggestive identification procedures in 57.10% of cases. (13)

Manson reflects the predominant approach to judicial scrutiny of eyewitness identification evidence; as one recent survey concluded: "[A] large proportion of law enforcement agencies ... have not made significant reforms and most courts in the United States still use some version of the Manson approach to dealing with eyewitness identification evidence." (14) Commentators, however, have uniformly condemned Manson as inconsistent with the large body of research that has emerged since that decision, disclosing the perils of eyewitness identification. (15) The academic commentary on eyewitness identification evidence contains nary a defense of Manson. (16)

The attacks on Manson as tolerating the admission of evidence thought unduly likely to produce convictions of the innocent call to mind Blackstone's famous admonition: "[E]vidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer." (17) Indeed, commentators frequently invoke Blackstone's ratio to argue for more vigorous judicial policing of eyewitness identification evidence. (18)

Rather than adding to the chorus of criticism condemning Manson and the prevailing approach to the admission of eyewitness identification evidence, however, this Article offers a different perspective--by taking seriously the possibility that courts have good reason for their reluctance to embrace Blackstonian reform of criminal evidence law.

Part I reviews the development of the Manson test, as well as the alternatives adopted by a handful of jurisdictions. It concludes that even those jurisdictions that have embraced alternatives to Manson have not achieved much in the way of meaningful reform.

Part II demonstrates that the virtues of Manson lie in the difficulties presented by the alternatives, which involve the use of prophylactic rules thought to minimize the risk of error. It is fiendishly difficult to know whether such measures have benefits that exceed their costs. To illustrate the point, Part II focuses on an issue on which the lower courts have split--the role of corroborative evidence in assessing the admissibility of eyewitness identification evidence. Blackstonian prophylaxis focuses on the procedures employed to obtain an identification rather than on whether it is corroborated. Any effort to assess the reliability of eyewitness identification evidence in isolation, however, is deeply problematic. The reliability of evidence rarely can be assessed in a vacuum; in the main, reliability is properly assessed in light of the totality of the circumstances--including the available corroborative evidence, or lack thereof. By disclaiming inquiry into corroboration, accordingly, prophylactic rules would exclude a great deal of reliable evidence.

The Blackstonian response to these difficulties rests on the view that we should prefer false acquittals of the guilty to false convictions of the innocent. Accordingly, if eyewitness identification evidence presents special risks to the innocent, its admission should be viewed with special caution, even if this will increase the rate at which the guilty go free. To be sure, a Blackstonian preference for false acquittals over false convictions undoubtedly underlies the heavy burden of proof that the prosecution must shoulder in a criminal case. (19) It is a separate question, however, whether additional safeguards are required when it comes to the admission of eyewitness identification evidence. As Part II demonstrates, we know little about the error rates that inhere in most types of evidence; the perils of eyewitness identification evidence may not be unusual. There is, accordingly, no identifiable stopping point for Blackstonian prophylactic rules that exclude evidence giving rise to a risk of wrongful convictions. That risk inheres in virtually all evidence. There is, therefore, little basis for erecting special prophylactic exclusionary rules designed to screen out evidence regarded as especially unreliable. Totality-of-the-circumstances tests are about the best we can do.


    The predominant view taken by courts as they assess the admissibility of eyewitness identification evidence remains the highly deferential rule of Manson v. Brathwaite. (20) There is, however, a minority view that demands a more substantial showing of reliability before an eyewitness identification can be placed before the jury.


      The traditional rule governing the admissibility of eyewitness identification evidence was straightforward: "The overwhelming majority of American courts have always treated the evidence question not as one of admissibility but as one of credibility for the jury." (21) On this view, accordingly, judges played essentially no gatekeeping role--it was up to the jury to assess the reliability of otherwise relevant eyewitness identification evidence. (22)

      1. The Road to Manson

        The Supreme Court first broke...

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