Mitigating the dangers of capital convictions based on eyewitness testimony through treason's two-witness rule.

• Author: Jain, Monika

INTRODUCTION

The imposition of capital punishment is fast becoming a controversial issue in the United States, due to the news of the high number of innocents being released from prison and from death row. (1) This news is even forcing proponents of capital punishment who have always advocated the idea of an ultimate sanction for the most heinous crimes to question their strong support for such an irreversible sanction. (2) Specifically, recent advances in DNA testing leading to the release of innocent defendants from death row have brought capital punishment to the forefront of recent debate. (3) In these cases, the principal evidence offered by the prosecution linking the defendants to the crimes was the testimony of one or more eyewitnesses who either identified the defendant in a lineup or from a photo spread. (4) The subsequent DNA testing clearly demonstrated that the eyewitnesses were wrong and firmly established that such testimony is extremely fallible. (5)

Eyewitness error remains a substantial cause of wrongful convictions. (6) With the fallibility of eyewitness testimony being so high, capital cases that rely on such testimony as evidence should require a quantitative evidentiary standard to be met in order for such evidence to be even allowed at trial. If the prosecution wishes to offer eyewitness testimony as evidence in a capital case, a constitutionally based federal corroboration requirement must be instated. (7) This Comment proposes that the Supreme Court, when reviewing its next capital case where eyewitness testimony is offered as evidence, should hold that unless the testimony is corroborated in some way, the defendant's conviction, if based largely on such testimony, must be overturned and declared a violation of the defendant's Eighth Amendment rights. (8) This ruling does not suggest that a prosecutor could not try a defendant at all if there were no eyewitnesses to the crime. The ruling merely requires that if a prosecutor plans on using eyewitness testimony, he must provide some form of corroboration for the testimony because of the high likelihood of its fallibility. If no such corroboration is available, the prosecutor can get around the quantitative requirement by not presenting eyewitness testimony at all, or by seeking life imprisonment rather than capital punishment. (9)

The requirement of corroboration as a prerequisite to obtaining a conviction in a capital case is not foreign to our criminal system. The law of treason has a corroboration requirement that is explicitly stated in the Constitution. (10) The requirement is more commonly known as the two-witness rule and its main purpose is to protect those who are innocent of treason and to promote reliability. (11) The rule mandates that a person may not be convicted of treason unless at least two witnesses testify to the same overt act. (12)

This Comment uses the two-witness rule of treason as a model and justification for adopting a constitutional corroboration requirement in all state and federal capital cases. Part I discusses the inaccuracies of eyewitness testimony and describes in detail cases where such testimony wrongfully placed an innocent man on death row. Part II examines the three federal crimes that currently carry the possibility of a death sentence and discusses how none of these statutes list any type of quantitative evidentiary requirement that must be met before a capital sentence can be imposed. (13) Part III analyzes the two-witness rule of treason and its overt act requirement. In addition, Part III discusses the rule's applicability to cases involving murder. (14) Finally, Part IV explains the justification for applying treason's two-witness rule to murder, and draws analogies between the two crimes.

1. THE FALLIBILITY OF EYEWITNESS TESTIMONY

   A study of 84% of DNA exonerations revealed that mistaken eyewitness identification was the primary evidence used to convict the actually innocent defendants. (15) This study was by no means the first one of its kind. In 1932, Edwin Borchard, a law professor at Yale University, published a collection of sixty-five cases where an innocent person was convicted for a crime he did not commit. (16) In his book, Borchard cited eyewitness error as the "major source of these tragic errors." (17) In fact, eyewitness error was responsible for twenty-nine of the sixty-five erroneous convictions examined in the book. (18) Borchard opined:

   These cases illustrate the fact that the emotional balance of the victim or eyewitness is so disturbed by his extraordinary experience that his powers of perception become distorted and his identification is frequently most untrustworthy. Into the identification enter other motives, not necessarily stimulated originally by the accused personally--the desire to requite a crime, to exact vengeance upon the person believed guilty, to find a scapegoat, to support, consciously or unconsciously, an identification already made by another.... How valueless are these identifications by the victim of a crime is indicated by the fact that in eight of these cases the wrongfully accused person and the really guilty criminal bore not the slightest resemblance to each other, whereas in twelve other cases, the resemblance, while fair, was still not at all close. (19) Even as long ago as 1932, Borchard recognized the different dangers inherent in eyewitness testimony, including the general distortion of a witness's perception and the possibility that a witness's identification would be encouraged by maleficent motives.

   Psychologists and scholars have long tried to explain the phenomenon of inaccurate eyewitness testimony. (20) Some psychologists take a scientific approach and claim that what is seen by a witness goes through an entire process before it is fully comprehended and retained. (21) More specifically, they say that what happens in front of one's eyes is transformed inside the head, and is then refined, revisited, restored and embellished. (22) Elizabeth Loftus, a leading researcher in the field, believes that many erroneous identifications are caused by what is known as "unconscious transference," the phenomenon in which a person seen in one situation is confused with or recalled as a person seen in a second situation. (23)

   Extensive research has been conducted, analyzing the correlation between the strength of a witness's confidence in his identification and the accuracy of that identification. (24) The studies revealed that witnesses who were highly confident in their identifications were more likely to be correct as compared to witnesses who displayed little confidence. (25) The following case, however, demonstrates an exception to this finding.

   In 1984, Jennifer Thompson, a high-achieving college student, was raped. (26) During the rape, Thompson carefully studied the face of her assailant so that she might be able to identify him later. (27) Without doubt, she identified Ronald Junior Cotton as the man who had raped her. (28) Cotton served eleven years in prison before DNA testing exonerated him and revealed that a man named Bobby Poole had actually committed the assault. (29) Thompson was naturally shocked, and has since been very active in speaking about the dangers of eyewitness testimony. (30) Thompson was face to face with her attacker, did nothing but study his face during their entire encounter, and still made an incorrect identification. What follows are cases where the eyewitnesses made observations from a distance and were similarly wrong in their subsequent identifications. (31)

   On July 25, 1984, police discovered the partially nude body of nine-year-old Dawn Hamilton in a wooded area in Baltimore. (32) On March 22, 1985, twenty-four year old Kirk Bloodsworth was sentenced to death for the rape and first-degree murder of Dawn. (33) Five eyewitnesses identified Bloodsworth as the man who was last seen with Dawn. On the morning of the murder, Dawn had come into the woods and had asked ten year-old Christian Shipley and seven year-old Jackie Poling if they could help her look for her cousin Lisa. (34) Christian and Jackie had refused to help, and said that a man agreed to assist Dawn, and the two of them walked off together. (35) After Dawn's body was found, Christian described the man's appearance to the police and a composite sketch was drawn. (36) Christian then picked Bloodsworth from a photo spread and identified him as the man who walked off with Dawn. (37) Jackie also identified Bloodsworth from a line-up. (38) Donna Ferguson testified that she saw Bloodsworth talking to Dawn near the woods on the day of the murder. (39) She too identified him at a line-up. (40) James Keller testified that as he was driving near the murder scene on the morning of the murder, he saw a man standing on the side of the road and he also identified Bloodsworth from both a Photo spread and the line-up. (41)

   With the exception of Christian and Jackie (and even their identifications were questionable), none of the other eyewitnesses saw the man with Dawn from a close distance. And yet, they were all able to identify confidently Bloodsworth as the murderer. In 1994, it was discovered that Dawn's underwear had been stained with semen, and after DNA testing was conducted, Kirk Bloodsworth was released from prison, given a pardon by the governor, and awarded $300,000 in special compensation by the state. (42) Because of erroneous eyewitness testimony, Bloodsworth had spent nine years in jail. (43)

   In another case, in 1978, a twenty-three year old woman was gang-raped and both she and her fiancee were murdered in Ford Heights, Illinois. (44) Four men named Dennis Williams, Kenny Adams, Verneal Jimerson, and Willie Rainge were convicted for the crimes. (45) Jimerson and Williams were sentenced to death. (46) The men were convicted based on the testimony of Charles McCraney and Paula Gray. (47) McCraney lived near the crime scene and claimed that...