Reforming Eyewitness Identification Law and Practices to Protect the Innocent

• Publication year: 2022

42 Creighton L. Rev. 595. REFORMING EYEWITNESS IDENTIFICATION LAW AND PRACTICES TO PROTECT THE INNOCENT

Creighton Law Review

Vol. 42

Margery Malkin Koosed(fn)

I. INTRODUCTION ................................... 595

II. THE SCOPE OF OUR PROBLEM-WHY THE CRIMINAL JUSTICE SYSTEM IS OVERDUE FOR REFORM MEASURES ......................... 596

III. IDENTIFYING BEST PRACTICES TO IMPROVE IDENTIFICATION PROCEDURES .................. 601

IV. MAKING EYEWITNESS IDENTIFICATION PRACTICES REFORM HAPPEN .................... 608

V. REFORMING THE LAW SURROUNDING

EYEWITNESS IDENTIFICATION PRACTICES ..... 616

A. Admitting Expert Testimony ..................... 617

B. Jury Instructions Tailored To The Needs Of

The Case ........................................ 620

C. Excluding Identification Testimony .............. 622

D. Corroboration and Conviction/Execution

Evidentiary Requirements ....................... 633

E. Expanding Appellate Review .................... 639

F. Abolishing the Death Penalty .................... 640

VI. CONCLUSION ..................................... 641

I. INTRODUCTION

I am honored to be part of the Creighton Law Review's fine symposium. I regret that I could not be there to participate in person due to a death in my family, but I am pleased the Creighton Law Review Board and I were able to establish my presence at the symposium through technological means. Furthermore, I am pleased that I could submit this Article to the Creighton Law Review.

My fellow symposium panelists have well-informed the symposium audience regarding the evolving psychological research in the field of eyewitness identification that displays the continuing risk of mistaken identification. My task is to discuss the varying reform proposals that may help to finally achieve a greater level of reliability in this critical phase of the criminal justice process. The comprehensive reform proposal that holds the most promise for increasing the reliability of eyewitness identifications includes tightening exclusionary rules, establishing corroboration requirements for death-sentencing, and more appropriately for convictions in capital and non-capital cases, and loosening standards for appellate relief.

II. THE SCOPE OF OUR PROBLEM-WHY THE CRIMINAL JUSTICE SYSTEM IS OVERDUE FOR REFORM MEASURES

Eyewitness misidentification is a significant threat to the reliability of the criminal justice system. The more psychological researchers and legal practitioners learn about eyewitness misidentification, the greater and more acute its threat to the criminal justice system appears to be.

I first addressed the topic of eyewitness misidentifications in a 1989 article, Dead Wrong: Mistaken Identifications and Capital Prosecutions.(fn1) In that article, I recounted the frequency of eyewitness mis-identification revealed by Professors Hugo Bedau and Michael L. Radelet's seminal study of wrongful convictions in potentially capital cases.(fn2) Bedau and Radelet studied 350 miscarriages of justice in potentially capital criminal cases occurring within the twentieth century and identified eyewitness misidentification as causing an erroneous conviction in fifty-six cases (16% of the cases studied).(fn3) In my 2002 article, The Proposed Innocence Protection Act Won't-Unless It Also Curbs Mistaken Eyewitness Identifications, I stated that if witness errors that were attributable to police or prosecutor influenced eyewitness identification testimony (which the Bedau and Radelet study listed in the witness error sub-categories of perjury and unreliable or erroneous prosecution testimony) were added into the analysis, the percentage of witness errors would likely be increased, most likely to one-fifth or more of the 350 cases Bedau and Radelet studied.(fn4) Contemporaneous studies of erroneous convictions that were not limited to potentially capital cases, including Professor Arye Rattner's 1988 study of erroneous capital and non-capital convictions, placed the frequency of eyewitness misidentification errors a great deal higher.(fn5) Indeed, Rattner placed the frequency of eyewitness misidentification in criminal cases at 52%.(fn6)

In 2002, I found if one added in the sixty-six additional miscarriages of justice in potentially capital cases Radelet identified in 1992,(fn7) the rate of wrongful convictions based simply on eyewitness mi-sidentifications rose from the earlier established 16% to 18.5%.(fn8) Furthermore, I found a comparable rise in the percentage of the witness-error subcategories of perjury and unreliable or erroneous prosecution testimony accounts occurred when these additional sixty-six potentially capital cases were considered.(fn9) However, if one focused on only cases decided after the 1967 United States Supreme Court decisions that addressed the eyewitness misidentification problem, the percentage of miscarriages of justice involving eyewitness misidentification rose starkly to 32%.(fn10)

Thus in 2002, nearly one-third of the convictions of innocent persons in potentially capital cases occurring after 1967 were based in whole or in part on erroneous identification testimony. As I related then, the annals of criminal law appeared to have become even more "rife with instances of mistaken identification."(fn11) When this error percentage in potentially capital cases is combined with Rattner's finding that 52% of non-capital case convictions involved eyewitness misidentification, the result was most disturbing.

This disturbance factor related to eyewitness misidentification has dramatically increased since 2002. As the DNA exonerations have shown, eyewitness misidentification is a factor in far more than 50% of wrongful conviction cases. In 2007, a National Institute of Justice Report related that more than 75% of the first 183 DNA exonerations in the United States involved eyewitness misidentification.(fn12) The latest figures from the Innocence Project confirm that the majority of wrongful convictions involved eyewitness misidentification.(fn13) Indeed, the Innocence Project examined more than 230 DNA exonerations in capital and non-capital cases, finding 77% of (post-Wade(fn14)) wrongful convictions involved eyewitness misidentification.(fn15) As Professor Sean Watts related in his introduction to the symposium panel, in 70% of these wrongful conviction cases the identifying witness was the victim of the crime, and in 28% of these wrongful conviction cases the victim-witness's identification of the suspect as the perpetrator was the central evidence in the case. With 77% of (post-Wade) cases involving eyewitness misidentification, it is justifiably labeled as the leading cause of wrongful convictions.(fn16)

No clear explanation for the increase in the frequency of errors attributable to eyewitness misidentifications over the past four decades exists, but this increase shows that the need to curb mistaken eyewitness identifications is more acute than ever.(fn17) Two Texas journalists, Steve McGonigle and Jennifer Emily, well-described the challenge that is now besetting us: "Eyewitness testimony is the crack cocaine of the criminal justice system. Law officers know the potential risks but are addicted to its power to convict."(fn18)

In McGonigle and Emily's October 2008 three-part series, they reported that Dallas County, Texas led the nation in DNA exonerations since 2001 with nineteen wrongful convictions being overturned, and "in every instance but one . . . police and prosecutors built their case on eyewitness accounts, even though they knew such testimony can be fatally flawed."(fn19) McGonigle and Emily recounted that there was no disciplinary action imposed for what they termed the lying, incompetent, or negligent actions of police officers.(fn20) The journalists reported that more than three million dollars was spent in compensating and incarcerating the wrongly convicted persons in the Dallas County cases.(fn21) McGonigle and Emily referenced that since 1975, Texas law allowed convictions based on the testimony of a lone eyewitness and that prospective jurors could be denied the opportunity to serve if they were not willing to convict based on such testimony.(fn22) Furthermore, McGonigle and Emily noted that legislation to require more reliable eyewitness identification procedures failed in the Texas legislature in 2007 and stated that only a handful of police departments in Dallas County had written policies regarding eyewitness identification procedures.(fn23)

Eyewitness misidentification is a big-as-Texas statewide problem. All six DNA exoneration cases in Harris County, Texas, which includes the City of Houston, were built on eyewitness misidentifica-tions.(fn24) Further, according to a recent Justice Project study, only 12% of Texas police agencies have written policies regarding eyewitness identification procedures.(fn25)

As the Justice Project's report on Texas police agencies confirmed, while it is possible to measure the financial costs of reinvestigation and of compensating a wrongly convicted person, those figures do not fully show the societal cost of these eyewitness misidentifications. When police end a criminal investigation after the conviction of an innocent person, the dangerous actual perpetrator is left at large to commit more crimes. The Justice Project reported that the actual perpetrator had been identified in approximately 35% of the...