Suedabeh Walker, Drawing On daubert: Bringing Reliability to the Forefront in the Admissibility of Eyewitness Identification Testimony

JurisdictionUnited States,Federal
Publication year2013
CitationVol. 62 No. 4



Eyewitness identification evidence has long been recognized for its tendency toward unreliability and its susceptibility to suggestion. At the core of eyewitness identification is the ability to recognize unfamiliar faces—a memory process that can be distorted by factors intrinsic to the nature of memory, as well as by extrinsic suggestive identification procedures, such as lineups. Because the guilt or innocence of a criminal defendant is often at stake in cases where eyewitness identification is at issue, this potential for distortion is particularly worrisome. In fact, this concern is borne out in statistical data about wrongful convictions in the United States, showing that mistaken identifications are the leading cause of wrongful convictions in the country.

Eyewitness identification evidence possesses a unique combination of factors that distinguishes it from other types of evidence: not only is it prone to unreliability, but it also has a strong influence on the jury. Further, it is not susceptible to the traditional protections of the adversarial system, such as confrontation and cross-examination. These features set eyewitness identification testimony apart from other types of evidence, warranting special attention by courts. The United States Supreme Court has long recognized the particularly sensitive nature of eyewitness identification testimony in a line of cases in which it found that an identification procedure has the potential to be so unnecessarily suggestive, and thus unreliable, that it violates a defendant’s due process rights. However, the current rule only affords protection to cases in which law enforcement officers orchestrated an unnecessarily suggestive procedure, disregarding the equally strong potential for unreliable identifications stemming from situations without any improper police behavior or any suggestive behavior at all.

This Comment argues that the Court’s current framework for approaching the problem of eyewitness identification testimony is too narrow and under- inclusive. This Comment proposes that courts should look to Daubert v. Merrell Dow Pharmaceuticals’s heightened evidentiary standard for admitting

expert scientific evidence, with its focus on reliability, as a guide for admitting eyewitness identification testimony. Then, this Comment proposes a new framework for admitting eyewitness identification testimony, which, like the Daubert standard, would be centered on a reliability assessment that is based on factors known to affect the accuracy of eyewitness identification.


Human memory, while remarkable in many ways, does not operate like a video camera. On the contrary, what people remember is greatly influenced— and often distorted—by interactions between the mind and its surroundings. Nowhere is the potential fallibility inherent in human memory more glaring than in the courtroom, where eyewitnesses regularly testify to the identity of a criminal defendant based on their memory of a culprit’s face.

Through efforts such as the Innocence Project,1 the potential for mistaken eyewitness identification has become evident.2 In fact, the leading cause of wrongful convictions in the United States is mistaken eyewitness identification;3 staggeringly, more than 75% of innocent prisoners exonerated by DNA evidence were found guilty at least in part on the basis of mistaken eyewitness identifications.4 This statistic highlights the miscarriage of justice that can occur if an eyewitness makes a mistaken identification: not only is an innocent person imprisoned, but the true perpetrator of the crime also escapes justice.

As efforts such as the Innocence Project suggest, mistaken eyewitness identifications frustrate the truth-seeking goals of the justice system. Courts have attempted to improve identification procedures, such as lineups, to

  1. Mission Statement, INNOCENCE PROJECT, php (last visited May 14, 2013). The Innocence Project is an organization whose mission is to “assist prisoners who could be proven innocent through DNA testing,” many of whom were convicted based in part on a mistaken eyewitness identification. Id.; accord Eyewitness Misidentification, INNOCENCE PROJECT, (last visited May 14, 2013).

  2. Eyewitness Misidentification, supra note 1; see Brandon L. Garrett, Judging Innocence, 108 COLUM.

    L. REV. 55, 78 (2008); Samuel R. Gross et al., Exonerations in the United States, 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 530–31 (2005); Samuel R. Gross, Loss of Innocence: Eyewitness Identification and Proof of Guilt, 16 J. LEGAL STUD. 395, 396 (1987).

  3. See, e.g., State v. Henderson, 27 A.3d 872, 878 (N.J. 2011); Garrett, supra note 2.

  4. See Garrett, supra note 2, at 78 (stating that in one study “[t]he overwhelming number of convictions of the innocent involved eyewitness identification—158 of 200 cases (79%)”); Gross et al., supra note 2, at

544 (finding mistaken identifications in 88% of exonerations in rape cases and in 50% of exonerations in murder cases); Eyewitness Misidentification, supra note 1 (finding mistaken identification played a role in nearly 75% of overturned convictions).

prevent mistaken identifications; however, courts must also address eyewitness identification mistakes that arise not only from procedural problems in control of the justice system, but also from the imperfect nature of memory itself.

This Comment argues that the current framework for evaluating the admissibility of eyewitness identification evidence does not adequately filter unreliable identifications that stem from both procedural problems and from the inherent fallibility of memory. Therefore, this Comment proposes that Daubert’s heightened evidentiary standard, which emphasizes the reliability of evidence as the main factor in its admissibility, should act as a recommendation for how trial courts should approach the admissibility of

eyewitness identification evidence.5 Like Daubert, the proposed framework

would emphasize the reliability of the eyewitness identification evidence as essential to its admissibility. Part I of this Comment reviews the psychological literature on possible forms of memory distortion that can affect the reliability of eyewitness recall of a culprit’s face, thus leading to mistaken eyewitness identifications. Part I also discusses some ways in which courts have attempted to address these problems and how such measures have largely proven insufficient. Part II then argues that eyewitness identification testimony is distinguishable from other types of eyewitness evidence due to its unique combination of characteristics, warranting a higher evidentiary standard. Part III summarizes the Daubert framework and the rationale for the heightened evidentiary standard it introduces. Finally, Part IV suggests a novel framework for eyewitness identification testimony in which Daubert—with its heightened evidentiary standard based on a reliability assessment—is used to inform decision makers about the importance of reliability in the admissibility of all

eyewitness identification evidence.6


    The potential for unreliability in eyewitness identification testimony may ultimately lie with the very nature of memory itself. Although many imagine memory as akin to a video recorder, capturing a stable and accurate account of a particular event, memory is in fact vulnerable to bias, intervening events, and

    1. In Daubert v. Merrell Dow Pharmaceuticals, the Court established a gatekeeping role for trial judges in which the admissibility of expert evidence is conditioned upon a finding of reliability. 509 U.S. 579, 592 (1993).

    2. This framework would apply to all eyewitness identifications, whether yielded from suggestive

      procedures or not, based on criteria that focus on the reliability of the particular eyewitness evidence.

      failures in perception.7 Memory is a reconstructive process, with the brain filling in gaps missing from memory.8 Thus, at any point between the initial perception and recall of a face, an eyewitness’s memory of that face is susceptible to distortion.9 The following sections discuss the variables that may affect the accuracy of eyewitness identifications as well as the safeguards that are currently in place to protect against these variables.

      1. Psychological Research on Variables Affecting Eyewitness Evidence

        Variables that may affect whether eyewitness identification memory is altered or distorted may either be “estimator variables” or “system variables.” Estimator variables are factors that stem from the inherently unreliable nature of memory and over which the justice system has no control, while system variables are factors that stem from identification procedures under the control

        of the justice system.10

        1. Estimator Variables

          Distortions in memory that lead to mistaken identifications may arise from estimator variables—problems that are inherent in the nature of memory itself.11 Such estimator variables are out of the control of the legal system and thus are particularly problematic because there is no way to prevent the eyewitness from being influenced by them.12 Estimator variables that commonly affect eyewitness identification include lighting, distance from the suspect, and race of the suspect; these variables can act during the initial perception of an event, or during encoding, storage, or retrieval of a memory.13

          Estimator variables may impact an eyewitness’s memory of a perpetrator’s face during the perception of the face and the encoding of the face into


    4. Id.

    5. Id. Thus, memory of faces can be affected during the encoding of the memory, during retrieval or recall of the memory, or in the intermediate time between encoding and retrieval when...

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