Who could it be now? Challenging the reliability of first time in-court identifications after State v. Henderson and State v. Lawson.

• Author: Kaplan, Aliza B.
• Position: Symposium on the Center on Wrongful Convictions

TABLE OF CONTENTS I. INTRODUCTION II. SCIENCE A. Human Memory is a Reconstruction B. Memory is Less Reliable Over Time C. Witness Confidence is Highly Malleable III. STATE OF THE LAW: IN-COURT EYEWITNESS IDENTIFICATIONS A. The U.S. Supreme Court Recognized Concerns About Eyewitness Identifications in Creating a Short-Lived, Per Se Exclusionary Rule B. Just Five Years After Wade/Gilbert, the Supreme Court Diluted Its Own Standard by Moving to a "Totality of the Circumstances" Test that is Woefully Inadequate C. Rulings by State Courts Are Beginning to Force the Law to Catch Up with the Science on Eyewitness Identifications IV. APPLYING THE SCIENCE TO FIRST TIME IN-COURT IDENTIFICATIONS A. Courts that Have Addressed First Time, In-Court Identifications in the Past Did Not Have the Benefit of Recent Scientific Developments and Failed to Understand the Scope of the Suggestion B. The Science Applies to First Time, In-Court Identifications Just as It Does to Pretrial Identifications, and Requires the Same Protections Against Mistaken Identification Evidence V. CONCLUSION I. INTRODUCTION

In 1979, a woman identified John Jerome White as the intruder who broke into her home in Georgia and raped and robbed her while she was asleep on the couch. (1) After White served more than twelve years in prison for rape, assault, burglary, and robbery, DNA evidence conclusively proved that the victim identified the wrong man. The DNA proved that, not only was White not the rapist, another man, James Parham, was the actual perpetrator. The victim identified White even though Parham, the man who actually attacked her, was present in the live lineup.

In 1995, four victims identified Patrick Waller as the man who robbed them, tied them up, and sexually assaulted one of them in an abandoned house. (2) All four witnesses identified Waller at trial, and despite alibi testimony, he was convicted and sentenced to life in prison. After serving more than 15 years in prison, DNA evidence conclusively proved that Waller did not commit the crime and another man, Byron Bell, was the real attacker. The Dallas District Attorney's Conviction Integrity Unit reviewed the case and obtained confessions from Bell and his accomplice, Lemondo Simmons. Waller was freed on July 3, 2008, after serving more than 15 years in prison for a crime he did not commit.

Eyewitness misidentification is one of the leading causes of wrongful convictions nationwide, playing a role in about 70% of convictions overturned through DNA testing. (3) More than 30 years of social science research has proven that eyewitness identification is often inaccurate and unreliable. (4) Despite its proven inaccuracy, eyewitness identification is still used to target suspects in nearly 80,000 cases each year. (5)

Much has been written about eyewitness identification and wrongful convictions. (6) This article will focus on in-court identifications--specifically, the use of first time, in-court stranger identifications where there was no pretrial identification (e.g., lineup) (7)--and how the body of social science research undermines the reliability of such identifications. In first time, in-court identifications, a witness is identifying the defendant for the first time after he or she has already been identified by the state as the suspect and charged with the crime. The defendant is isolated at the defense table and is often the only person in the courtroom matching the perpetrator's description. As this article demonstrates, the courtroom is an inherently suggestive setting for a stranger identification conducted for the first time, and such an identification is particularly unreliable because the witness's memory inevitably decays or becomes distorted in the time between the incident and the defendant's trial.

We use as an example the case of Jerrin Hickman, an African-American male who was convicted of murder in Oregon after two young white women identified him for the first time in the courtroom at trial. (8) The authors of this article take no position on the merits of Hickman's conviction, but raise the case because the suggestiveness of the identifications casts a shadow of uncertainty on the conviction, leaving the integrity of its resolution open to debate--a result unsatisfying to prosecutors, defendants, and the courts. (9)

Hickman's case began on New Year's Eve 2007 when two young white women (D and N) were present when Christopher Monette was shot during a party in Northeast Portland, Oregon. (10) Police were called to investigate Monette's murder. Within hours of the shooting, D told the investigating officer that "she didn't see the shooting and really couldn't describe much," and, as a result, she "could not give specific descriptions of who was involved." (11) N could tell the officer only that the shooter was an African-American man wearing a "do-rag," who had a stocky build and was in his mid-twenties. (12) During the two years that passed between the night of the shooting and Hickman's trial, the state never conducted a lineup, photo array, or any other pretrial identification procedure to discover whether the two young women could identify Hickman or anyone else as the shooter. (13)

At trial, nearly two years after the shooting, D took the stand, saw Hickman seated at the defense table, and testified that she was "95 percent certain" that Hickman was the shooter. (14) For the very first time, D provided a detailed description of the shooter, which matched Hickman seated before her. (15) Also from the stand, N pointed to Hickman sitting at the defense table and identified him as the shooter. (16) Once again, for the first time in two years, N gave details about the shooter's appearance--all matching Hickman seated in front of her. (17) Hickman was convicted of Monette's murder and sentenced to life in prison based predominantly on these two first time, in-court stranger identifications. (18)

On appeal, the Oregon Supreme Court (19) ruled that the identifications in Hickman were properly admitted under State v. Lawson, (20) its 2012 landmark decision requiring major changes to evaluating identification evidence. (21) In Lawson, the court changed the standard for admissibility of eyewitness identification evidence to reduce the likelihood of wrongful convictions by taking into account more than 30 years of scientific research on eyewitness identification and memory. In doing so, the court rejected the balancing test that had been in place (22) and shifted the burden to the state to establish that eyewitness identification evidence is admissible by assessing its reliability under the Oregon Evidence Code. (23) The Hickman court failed to understand how the science discussed and accepted in Lawson should apply to all eyewitness identifications, not just those made pretrial. (24)

The Oregon Supreme Court, in Lawson, was the second state supreme court to take a thoughtful and comprehensive approach to conforming the law of eyewitness identification to the scientific consensus in order to reduce misidentification, (25) the single greatest cause of wrongful convictions nationwide. (26) The New Jersey Supreme Court was the first state supreme court to institute reform.

The unreliability of eyewitness evidence was set out in stark relief in State v. Henderson, (27) where the New Jersey Supreme Court, through a Special Master's Report, examined 30 years of scientific research on the reliability of eyewitness identification and memory. (28) The Henderson Report concluded that "[t]he scientific findings ... are reliable, definitive and unquestionably fit for use in the courtroom." (29) Relying on these scientific findings, the New Jersey Supreme Court issued a breakthrough decision requiring major changes in the way its courts evaluate identification evidence at trial and instruct juries. (30) The new framework instructs New Jersey courts to greatly expand the factors that courts and juries should consider in assessing the risk of misidentification, emphasizing, in particular, the ways administrators can influence the outcome of identification procedures, (31) the inherently suggestive quality of "show-ups," (32) how memory becomes decayed and distorted within a short period of time, (33) and the fact that juries often overvalue the credibility of eyewitness testimony regardless of curative instructions. (34)

In addition to the Lawson and Henderson decisions, the Supreme Judicial Court of Massachusetts recently convened a special committee to study the science and law regarding eyewitness identifications and recommended numerous changes to the law, including taking judicial notice of the 30 years of science reviewed and accepted by the Henderson and Lawson courts. (35) Even before the landmark decisions in Henderson and Lawson, other state courts embraced the task of building upon the federal floor and developing enhanced procedures grounded in state constitutions. (36) It is likely that other jurisdictions will follow.

Despite the recent advances in assessing the reliability of eyewitness identifications, the focus to date has largely been identifications made pretrial. (37) Little has been written about identifications made for the first time in the courtroom, like those made in the case of Jerrin Hickman described above.

Five months after Hickman was decided in Oregon and during the authorship of this article, the Supreme Judicial Court in Massachusetts decided Commonwealth v. Crayton, (38) in which the court excluded a similar first time, in-court identification. The Crayton court in Massachusetts specifically took issue with the reasoning of the Hickman court in Oregon and sharply disagreed with the basis of the Hickman ruling. (39)

Earlier in 2014, the National Academy of Sciences ("NAS") published an insightful and much-anticipated report on assessing eyewitness identifications. The NAS properly recommended that "[a]n identification of the kind dealt with in...