Reforming the law on show-up identifications.

• Author: Cicchini, Michael D.

1. INTRODUCTION

   When false eyewitness identifications and wrongful convictions are discovered, they are usually exposed through postconviction DNA testing. (1) However, in the vast majority of criminal cases, DNA evidence has either been destroyed (2) or, more commonly, never even existed in the first place. (3) This, of course, poses a significant problem for the innocent defendant convicted based primarily on eyewitness evidence. To illustrate this, consider the following hypothetical example, to which we will refer periodically throughout this Article.

   A crime victim calls 9-1-1 to report a robbery at his apartment. The perpetrator is a white male of medium height who was wearing a black jacket. The man brandished a gun, demanded that the victim turn over his wallet, and then fled the scene. Police respond immediately, and while en route, one officer sees a white male of medium height, wearing a black jacket, standing on a street corner about two blocks from the crime scene. The man sees the officer and immediately turns and attempts to walk away. Based on the man's proximity to the crime scene, his general appearance, and his behavior, the officer stops him and conducts a pat-down search. When doing so, he finds a folding utility knife in the man's pocket; no gun or stolen wallet is found. The officer arrests the man for carrying a concealed weapon, a misdemeanor, and places him in his squad car. No other suspects are found in the immediate area, so one of the on-scene officers radios the arresting officer and instructs him to hold the man for a show-up procedure, in which he will be presented singly to the crime victim for identification. The arresting officer then removes the man, now the suspect, from the squad car. The suspect is surrounded by three officers, two of whom have just arrived to assist. Two other officers take the crime victim in another squad car and drive slowly past the suspect. The victim sees the suspect handcuffed, standing near a squad car, and surrounded by three uniformed police officers. An officer asks the victim whether he can identify the suspect as the perpetrator. Despite having seen the perpetrator for only a few seconds while under a great deal of stress and despite not being able to describe the perpetrator with any amount of detail, the victim is convinced that the police arrested the right man. As a result of the show-up procedure, he positively identifies the suspect as the perpetrator. The suspect, having already been arrested for carrying the folding utility knife, is taken to the county jail for booking. After reviewing the case, the prosecutor decides to charge the suspect, now the defendant, with armed robbery. The defendant denies the allegation and demands a trial. The prosecutor has no evidence other than the show-up identification procedure, which the defendant moves to suppress on due process grounds. The prosecutor argues that the show-up was constitutionally proper and, therefore, is admissible at the defendant's trial. This hypothetical example--subtle variations of which play out on a daily basis in criminal courts throughout our country--raises a number of issues. As a preliminary matter, is the victim's positive identification of the suspect really reliable? Part II of this Article briefly discusses how eyewitness identification evidence, even when obtained under the best of circumstances, is hopelessly unreliable and is the leading cause of wrongful convictions in our country. (4) Part III then briefly explains how the use of a show-up procedure, such as the one employed in the robbery example above, greatly exacerbates the problem and makes already unreliable evidence even less reliable. (5)

   This background information then leads us to other issues that lie at the heart of this Article. First and foremost, given that show-up procedures are highly unreliable, is show-up evidence nonetheless admissible at trial? Part IV.A discusses the Supreme Court's framework for determining whether show-ups are admissible. This framework, which has been adopted by most states and is known as the majority approach or the majority rule, employs a malleable and outdated facts-and-circumstances analysis and permits nearly unrestricted use of show-ups at trial. Consequently, it offers virtually no due process protection against highly unreliable, yet persuasive, show-up evidence. (6)

   Some states, however, have recognized this problem and now offer greater protection under their own state constitutions. Part IV.B discusses the evolutionary approach to reform, which essentially modernizes and updates the majority rule's facts-and-circumstances approach. (7) Part IV.C then discusses the revolutionary approach to reform, which essentially rejects the majority rule's facts-and-circumstances framework. Instead, the revolutionary approach begins with the general rule that show-up evidence is not admissible unless at the time of the show-up: (1) exigent circumstances prevented the use of a less suggestive procedure, such as a lineup or photo array; or (2) the police lacked probable cause to arrest the defendant and, therefore, could not have legally detained him long enough to conduct a lineup or photo array. (8)

   Part IV.C further explains why this revolutionary approach--also known as the minority approach or the minority rule--is the superior model for reform and should, therefore, be adopted by the Supreme Court. (9) However, despite the minority rule's benefits, trial courts do not like the constraints that it places on law enforcement and have easily been able to thwart this would-be revolution in the law of show-up identifications. (10)

   More specifically, Part V.A illustrates how the courts have distorted the exigent circumstances exception to the minority rule. If a court can somehow find that, at the time of the show-up, exigent circumstances prevented the use of a lineup or photo array, then the show-up will be admissible at trial. (11) Similarly, Part V.B shows how courts have distorted the probable cause exception to the minority rule. If a court can somehow find that, at the time of the show-up, the police did not have probable cause to arrest the defendant and, therefore, could not have conducted a time-consuming lineup or photo array, then the show-up will, once again, be admissible at trial. (12)

   The ease with which courts are able to bypass the minority rule and its strengthened due process safeguards is alarming. Part VI, therefore, proposes a solution that calls for further modification of the minority rule in order to protect against judicial abuses. Only by constraining judicial discretion especially with regard to the exigent circumstances and probable cause exceptions to the minority rule--will the underlying policy objectives of the revolutionary approach to reform be realized. (13) Part VII then concludes the Article. (14)

2. EYEWITNESSES AND MISIDENTIFICATIONS

   Erroneous eyewitness identifications have plagued our criminal justice system since its inception. When DNA evidence became a prevalent tool for law enforcement in the 1980s, not only did it assist prosecutors in obtaining convictions, but it also reopened prior convictions that were obtained based primarily on eyewitness testimony. Studies now reveal that erroneous eyewitness identifications "are the single greatest cause of wrongful convictions in the United States, and are responsible for more wrongful convictions than all other causes combined." (15) In fact, in 80% of the first one hundred postconviction DNA exonerations, the underlying wrongful convictions were based primarily, if not solely, on false identifications. (16)

   In these DNA exoneration cases, the DNA evidence proved to a scientific certainty that the defendant did not commit the crime charged and had been wrongfully convicted. But even today, most innocent defendants do not have the luxury of DNA evidence to prove their innocence. For example, in some cases the police do not collect or properly preserve the available DNA evidence. (17) In most cases--including the hypothetical robbery discussed in Part I--DNA evidence simply does not exist. (18) This leaves eyewitness identification evidence as the primary, if not sole, basis for a jury's decision.

   Alarmingly, research shows "that approximately 40% of eyewitness identifications are mistaken." (19) Further, "[i]t is estimated there may be more than 10,000 people a year wrongfully convicted, most of whom were convicted as a result of mistaken identification." (20) This has led many in the criminal justice system to finally realize what others concluded long ago: eyewitness identification evidence is "hopelessly unreliable." (21) This unreliability, in turn, leads to a dual problem: not only is an innocent person likely to be convicted, but the true perpetrator necessarily goes free, often to commit additional crimes. (22)

   Despite its hopeless unreliability, eyewitness identification evidence has proven to be an extremely powerful tool for the prosecution. The reality is that jurors are "unduly receptive to identification evidence and are not sufficiently aware of its dangers." (23) Nothing is more convincing to jurors than a live witness who takes an oath and confidently proclaims that he saw the defendant commit the crime. (24) In fact, the level of confidence exhibited by an eyewitness has been found to be the most powerful predictor of guilty verdicts. (25) In other words, jurors equate confidence with reliability. Social science research, however, has revealed yet another problem: a witness's confidence in his identification has little, if any, correlation to the accuracy of his identification. (26) In light of this, it becomes even more difficult for jurors to distinguish accurate identifications from inaccurate ones. (27)

   Even weak eyewitness testimony is incredibly powerful and, therefore, often leads to wrongful convictions. Furthermore, cross-examination is...