A tripartite solution to eyewitness error.

• Author: Wise, Richard A.

1. INTRODUCTION

   "The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification." (1)

   "[W]e regularly sentence innocent people to death. So the underlying question remains: Considering all the attention we devote to death penalty cases, why do we make so many mistakes?" (2)

   It was just turning dark one October night when a young woman hitchhiker was picked up on Pacific Highway South 10 miles outside of Seattle by a man with a beard and a three-piece suit. Instead of driving her to Tacoma, the man turned into an isolated dirt road, raped her and left her by the side of the road.

   Just 24 hours later, the rape victim, shown an array of photographs by detectives, identified Steven Titus as her rapist. Largely on the basis of her testimony, Mr. Titus was found guilty.

   But a few months after Mr. Titus's conviction, new evidence suggested a different suspect was responsible for a series of rapes, including this one. When the rape victim saw the photograph of the new suspect, she realized he was her rapist and broke down in tears, saying, 'Oh my God, what have I done to Mr. Titus?'

   Though Mr. Titus was released, his life was in shambles: he had used all his money for his defense, had lost his job and good reputation and had been left by his fiancee.

   Mr. Titus spent the next four years in a struggle to sue the authorities. Eleven days before the case was to come to trial, Mr. Titus died of a heart attack. Ten months later his estate was awarded a settlement of $2.8 million.

   The circumstances of this case are not unusual. (3)

   The purpose of this article is to delineate a tripartite solution to eyewitness error that is based on over thirty years of extensive scientific research on eyewitness testimony. The criminal justice system depends on eyewitness evidence. It is often the only evidence available in a criminal case and, where properly handled, can be very reliable. The solution proposed here maintains the availability of eyewitness evidence, while instituting safeguards to promote its reliability and accuracy.

   Part II of this article describes the extent of the problem of wrongful convictions, reviewing empirical studies that estimate the contribution of eyewitness errors to wrongful convictions, the difficulties eyewitnesses have in accurately identifying the perpetrator of a crime, and the powerful impact that eyewitness testimony has on the trier of fact. Part Ill depicts how American courts have responded to the problem of eyewitness error and analyzes whether those responses have been adequate.

   Part IV introduces the tripartite solution. Its first component is permitting expert testimony when the primary or sole evidence against the defendant is eyewitness testimony. The second component is improving law enforcement's procedures for collecting eyewitness evidence. The article describes a scientifically validated method for interviewing eyewitnesses that significantly increases the amount of accurate information obtained from eyewitnesses and decreases the probability of contaminating their memory of the crime. The article then discusses how to further improve investigatory procedures for eyewitness evidence by proposing changes in identification procedures that scientific research has shown can significantly reduce erroneous eyewitness identifications. Finally, the article introduces the third component of the tripartite solution, delineating how and by what means educating the principal participants of the criminal justice system about eyewitness testimony could reduce eyewitness error. This article concludes with an additional imperative for implementing the tripartite solution: the constitutional demands of procedural due process.

2. EYEWITNESS ERROR'S ROLE IN WRONGFUL CONVICTIONS

   1. THE NUMBER OF WRONGFUL CONVICTIONS

   To understand the impact of eyewitness error on the criminal justice system, it is first necessary to consider the scope of the problem of wrongful convictions. In 2002, over one million adults were convicted of felonies in the United States. (4) One survey of Ohio criminal justice officials estimates that wrongful convictions occur in about 1 of every 200 felony criminal cases (.5%). (5) This translates to more than 5000 innocent persons being convicted of serious crimes in 2002. However, DNA testing of criminal suspects suggests that the percentage of wrongful convictions may be much higher. (6) For example, a 1995 survey of public and private forensic laboratories in the United States indicated that DNA tests had been conducted in 21,621 criminal cases. (7) Of these:

   DNA testing exonerated the suspect in 23% of the cases. In another 16% of the cases, DNA tests produced inconclusive results [often due to deteriorated or insufficiently large samples]. In other words, in those cases in which there was a conclusive DNA test result (a sample of many thousands of cases), 27% of the suspects were exonerated by the test. (8) One-half of all persons arrested for serious crimes are ultimately convicted. (9) In 1999, Dripps noted that many of the suspects now exonerated by DNA testing would have been indicted prior to its use. (10) This implies that there may have been "a false conviction rate in the past of greater than 10% for criminal cases where DNA testing is now possible." (11) More importantly, Dripps asserts that factors such as eyewitness error, which were likely to cause wrongful indictments in DNA cases, continue to produce wrongful indictments in criminal cases where there is no testable biological evidence. (12) "A false conviction rate of 10% would imply almost 100,000 wrongful felony convictions every year." (13)

   A 1987 study determined that in approximately 80,000 criminal trials every year in the United States the sole or primary evidence against the defendant was eyewitness testimony. (14) However, science is increasingly revealing that a significant percentage of eyewitness testimony is wrong. "Erroneous eyewitness testimony.., no doubt is the single greatest cause of wrongful convictions in the U.S. criminal justice system." (15) In one study of 340 convictions, eyewitness error played a role in 64% of wrongful convictions. (16) In the first 180 DNA exoneration cases, eyewitness error was a cause of the wrongful conviction in 75% or more of the cases. (17) The United States judiciary has been aware for some time of the problem posed by eyewitness error. (18) For example, the United States Court of Appeals for the Second Circuit stated:

   There can be no reasonable doubt that inaccurate eyewitness testimony may be one of the most prejudicial features of a criminal trial. Juries, naturally desirous to punish a vicious crime, may well be unschooled in the effects that the subtle compound of suggestion, anxiety, and forgetfulness in the face of the need to recall often has on witnesses. Accordingly, doubts over the strength of the evidence of a defendant's guilt may be resolved on the basis of the eyewitness' seeming certainty when he points to the defendant and exclaims with conviction that veils all doubt, "[T]hat's the man!" (19) Similarly, Brigham and Bothwell wrote, "[J]urors appear to regard eyewitness evidence as one of the most persuasive kinds of evidence that can be presented." (20) Jurors place such great faith in eyewitness testimony because they seemingly believe that perceptual memory is like a videotape that can be replayed with near perfect fidelity. (21) Accordingly, when an eyewitness testifies, he or she "can simply play back the appropriate tape." (22) However, scientific research has revealed that eyewitness memory is much more malleable and susceptible to error than is generally realized. (23)

3. THE LEGAL SYSTEM'S RESPONSE TO THE PROBLEM OF EYEWITNESS ERROR

   1. THE UNITED STATES SUPREME COURT'S RESPONSE

      The eyewitness problem has not escaped the attention of our highest court. In 1967, the Supreme Court first addressed the issue of eyewitness identification in a trilogy of cases: United States v. Wade, (24) Gilbert v. California, (25) and Stovall v. Denno. (26) In Wade, the Court held that because a post-indictment pre-trial lineup is a critical stage of a criminal proceeding, a defendant has a right under the Sixth Amendment to have an attorney present at a post-indictment lineup. (27) The Court further stated that if an attorney is not present at a post-indictment pre-trial lineup, the eyewitness's identification of the defendant is inadmissible. (28) However, in the event that the post-indictment pre-trial lineup is inadmissible, the State can still use the eyewitness's courtroom identification of the defendant as evidence of the defendant's guilt. (29)

      In Gilbert, the Supreme Court held that the State is not entitled to show that eyewitness testimony which was the direct result of an illegal post-indictment lineup could be substantiated by an independent source. (30) Instead, the trial court must grant the defendant a new trial if such testimony was presented at the guilt stage, or grant appropriate relief if the testimony was presented at the penalty stage, unless it is determined that the admission of the eyewitness's identification was harmless error beyond a reasonable doubt. (31)

      In Stovall, (32) the Court addressed whether a suggestive identification procedure necessitated by exigent circumstances that was conducive to an erroneous identification constituted a denial of due process. (33) The Court held that the totality of the circumstances must be examined when there is an alleged violation of due process in conducting an identification procedure. (34) Thus, in Stovall, the Court found that, though the eyewitness's identification of the defendant was suggestive, it was imperative because the only eyewitness was in a hospital with life-threatening injuries. (35) "Under [the] circumstances, the usual police station lineup ... was out of the question." (36)

      One year later...