A model for fixing identification evidence after Perry v. New Hampshire.

AuthorCouch, Robert

Mistaken eyewitness identifications are the leading cause of wrongful convictions. In 1977, a time when the problems with eyewitness identifications had been acknowledged but were not yet completely understood, the Supreme Court announced a test designed to exclude unreliable eyewitness evidence. This standard has proven inadequate to protect against mistaken identifications. Despite voluminous scientific studies on the failings of eyewitness identification evidence and the growing number of DNA exonerations, the Supreme Court's outdated reliability test remains in place today. In 2012, in Perry v. New Hampshire, the Supreme Court commented on its standard for evaluating eyewitness evidence for the first time in thirty-five years and ultimately declined to modify the outdated reliability framework. This Comment analyzes Perry in light of innovations by states to improve eyewitness evidence procedures. While the Perry decision failed to address critical problems with the reliability test, the Court indirectly pointed to ways in which the old standard must be fixed.

TABLE OF CONTENTS INTRODUCTION I. MANSON V. BRATHWAITE: AN UNRELIABLE FRAMEWORK II. PERRY V. NEW HAMPSHIRE: THE SUPREME COURT'S UNWILLINGNESS TO RECONSIDER MANSON III. STATE V. HENDERSON: A CORRECT MEASURE OF RELIABILITY CONCLUSION INTRODUCTION

On July 29, 1984, an intruder broke into a North Carolina home and sexually assaulted a college student named Jennifer Thompson. (1) Thompson was determined to survive the attack and wanted to make sure her assailant went to prison. She studied her assailant intently--making sure to memorize his voice, face, and demeanor. Thompson would later identify Ronald Cotton from a police lineup and consistently maintain that she was 100 percent certain of her identification.

Cotton was later convicted of the crime, largely due to the strength of Thompson's identification. While Cotton sat in prison, Thompson remained sure of her identification. Years later, a man named Bobby Poole confessed to the crime. Cotton was granted a retrial where Thompson viewed him side by side with Poole. With Cotton's face firmly entrenched in her mind, Thompson again identified him as her rapist and Cotton remained behind bars. In 1995, DNA testing showed that Poole was indeed the perpetrator. Cotton had spent a decade in prison for a crime he had not committed. (2) Unfortunately, cases like Cotton's are not uncommon, as DNA testing has proven that many wrongful convictions were based on mistaken eyewitness identifications.

In 1977, the Supreme Court in Manson v. Brathwaite created a test for determining whether eyewitness evidence obtained through suggestive circumstances could nevertheless be admitted into evidence. (3) Under the Manson test, if an identification was unnecessarily suggestive, a court must weigh certain reliability factors against the corrupting influence of the suggestive procedures to determine whether the identification is reliable and therefore admissible. (4) In the thirty-five years since this decision, scientific studies and DNA-based exonerations have shown eyewitness identification to be even less reliable than the Court suspected. The Court returned to the issue of the reliability of eyewitness identifications in a 2012 case, Perry v. New Hampshire, for the first time since 1977. (5) But the Court avoided pressing questions concerning the continued vitality of its outdated reliability standard, and left unresolved the issue of how to adequately handle eyewitness evidence.

This Comment argues that, given the decision in Perry, the onus is on the states, and in particular state supreme courts, to implement improved safeguards ensuring the reliability of eyewitness identification evidence. Part I describes the Supreme Court's 1977 decision in Manson v. Brathwaite and provides a brief look at the scientific developments that changed experts' understanding of eyewitness evidence. Part II addresses the Court's decision in Perry and asserts that the Court avoided a critique of the Manson standard. Part III suggests that the Supreme Court's unwillingness to address the issue in Perry indicates that change must come from the states. The New Jersey Supreme Court's decision in State v. Henderson is a model for this type of change. (6)

  1. MANSON V. BRATHWAITE: AN UNRELIABLE FRAMEWORK

    This Part describes the Manson reliability standard as developed by the Supreme Court, as well as the subsequent scientific developments that have drawn this approach into question. The Manson Court held that a finding of unnecessarily suggestive identification procedures does not mandate exclusion. (7) The key phrase from Manson involves the reliability of the eyewitness's identification of the defendant: "[R]eliability is the linchpin in determining the admissibility of identification testimony." (8) The Court made clear that the trial judge should use a totality of the circumstances test, weighing "the corrupting effect of the suggestive identification" against the perceived reliability of the identification. (9)

    The application of the Manson rule has essentially led courts to use a two-step process. First, a trial court decides whether the eyewitness identification was obtained through unnecessarily suggestive circumstances. Second, the court must consider whether the suggestive circumstances render the resulting identification unreliable by weighing the corrupting influence of the suggestiveness against five reliability factors. (10) A defendant must be successful at both steps in order to exclude the identification evidence.

    While the Manson Court identified suggestiveness and reliability as the principal concerns in eyewitness identification cases, its analysis only scratched the surface of the many problems surrounding the evidentiary reliability of eyewitness evidence. Since Manson, scientific studies and developments in DNA testing have shed further light on the failings of eyewitness evidence, and have revealed that the Court did not anticipate just how unreliable such evidence can be.

    A number of scientific studies in the 1970s and 1980s raised serious concerns about the ability of juries to assess the probative value of eyewitness evidence, providing much more information than was available when the Court decided Manson. (11) Examples of the findings of these studies include determinations that juries were not able to distinguish between accurate and inaccurate witnesses, (12) that the confidence of a witness in her identification did not correspond to the accuracy of that identification, (13) and that law-enforcement agencies often did not have clear and consistent procedures to ensure a "fair" identification. (14) A thorough review of the empirical research during this time period is beyond the focus of this Comment. However, the key findings from these studies are that eyewitness evidence presented to juries was often unreliable and that juries were unable to give proper weight to such evidence.

    The development of DNA testing in the mid-1980s confirmed that unreliable eyewitness evidence played a large role in sending innocent people to jail. A 2005 University of Michigan study analyzed 340 exonerations from 1989 through 2003 and found that "[t]he most common cause of wrongful convictions is eyewitness misidentification." (15) The report also concluded that the problem was widespread and systematic, as known wrongful convictions were certainly outnumbered by unknown wrongful convictions. (16) Similarly, a 2006 article stated that misidentification accounts for more wrongful convictions than all other causes combined. (17)

    DNA-based exonerations have thus confirmed that the Manson test is an inadequate means of excluding unreliable and mistaken eyewitness identifications. The most obvious problem with the Manson standard...

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