Why and how New York should enact mandatory statewide eyewitness identification procedures.

• Author: Rikard, Andrew D.

1. INTRODUCTION

   Since 1989, the use of DNA evidence to exonerate wrongfully convicted individuals (1) has illuminated certain flaws inherent in the structure and procedures of our criminal justice system. One commentator's analogy is particularly appropriate: "Just as the current economic recession revealed bad practices in the financing system and Ponzi schemes, the recent DNA exonerations have exposed the bad eyewitness identification procedures that lead to wrongful convictions." (2) With the spotlight cast on these imperfections, two important, but seemingly basic, questions are raised: (1) how just, effective, and accurate is our criminal justice system; and (2) what can be done to improve it?

   In answering the former question, one could not logically argue that the system is, or even could be, completely just, effective, and accurate. Any system involving human decisionmaking will inevitably produce some degree of error. However, an ever-increasing majority of legal and other scholars aver that the system may be even less just, effective, and accurate than previously believed. This belief is grounded in the argument that certain steps, although readily available and scientifically proven to mitigate the abovementioned human error, are not being taken.

   Based upon this argument, many groups, agencies, scholars, and task forces are proponents of various evidentiary reforms, which address the latter question above. While there seems to be a general consensus on the specific types of reform required, the suggested application and implementation of these reforms varies from group to group.

   Of the various changes to evidentiary law widely recommended by researchers and practitioners, (3) the reform of eyewitness identification procedures may produce the most striking improvement in the efficacy, accuracy, and fairness of the criminal justice system. This is because eyewitness misidentification is by far the most prevalent of all the factors cited as regularly causing wrongful convictions; of the 239 wrongful convictions hitherto overturned through DNA evidence in the United States, seventy-five percent involved witness misidentification. (4)

   While the underlying scientific reasoning is too complex for full explication here, the near consensus of the scientific community is that eyewitness identifications are inherently unreliable as clearly and widely expressed within the pages of the scholarly literature. (5) As such, the procedures utilized in obtaining these identifications must be as minimally suggestive as possible in order to prevent further degradation of such foundationally fragile and questionable, although highly important, evidence. Procedures must be designed to winnow away the chaff of unreliable identifications, while not wasting the precious wheat of reliable eyewitness identification evidence. Fortunately, reform of eyewitness identification procedures is seemingly quite feasible, as legislation to that effect can be grounded in the voluminous research and scholarly literature on this topic, including various empirical studies, (6) "best practices" guidelines or proposed solutions, (7) and model legislation, (8)

   Unfortunately, despite widespread scientific and scholarly support for such reforms, New York State has failed to enact any type of statewide eyewitness identification procedure, (9) and continues to rely upon the demonstrably flawed approach (10) of a thirty-three-year-old United States Supreme Court decision. (11) This comment proposes that New York State, through the adoption of mandatory statewide witness identification procedures, fulfill its moral and ethical duty to protect the innocent. (12) As one observer aptly stated,

   [t]he time has come for eyewitness researchers and experts to move out of the laboratory and courtroom--and into the police station. The time has come to use all that we know to improve the procedures used to conduct the lineups and photo arrays that too often give rise to mistaken identifications. (13) The fact that this advice has yet to be followed in the intervening decade, despite clear empirical support, illustrates the pressing need for eyewitness identification reform.

   Initially, this comment discusses the United States Supreme Court's position on eyewitness identification procedures. Thereafter, it examines preventative measures aimed at addressing the various causes of witness misidentification. Finally, as stated above, this comment suggests that New York should implement statewide eyewitness identification procedures based upon the research and scientific and scholarly recommendations discussed herein.

2. EYEWITNESS IDENTIFICATION JURISPRUDENCE OF THE UNITED STATES SUPREME COURT

   By 1967, as evinced by its decision in Stovall v. Denno, (14) the United States Supreme Court had developed a fairly clear position on eyewitness identification procedures. (15) This is not to say that the Court prescribed specific procedures, but rather that it had a standard for exclusion of such identifications in certain cases. In handing down its decision in the Stovall case--based upon the jurisprudence of United States v. Wade (16) and Gilbert v. California (17)--the Court solidified what became known as the "per se exclusion rule." (18)

   Simply put, the "per se exclusion rule" held that unduly "suggestive eyewitness identification procedures" rendered the identification inadmissible as evidence at trial. (19) Specifically, the Court held that a defendant may assert that "the confrontation conducted ... was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law," (20) and furthermore that the suggestiveness of the identification procedure was to be determined in light of "the totality of the circumstances." (21) This rule, however, would soon be overtaken by another. The new standard would introduce an additional level of inquiry into the propriety of admitting eyewitness identification, above and beyond the suggestiveness of the identification procedure alone.

   In its 1972 decision in Nell v. Biggers, (22) the Supreme Court abandoned the "per se exclusion rule" in favor of a new two-pronged test, sometimes referred to as the "reliability" or "totality" approach. (23) The first prong of this test examines the suggestiveness of the identification procedure. (24) If the court determines that the procedure was not unnecessarily suggestive, then the identification is, naturally, admissible. (25) If the court determines, however, that the procedure was unnecessarily suggestive, the second prong of the test comes into play.

   The second prong of the test examines the reliability of the identification and whether it is so great as to overcome the improperly suggestive nature of the identification procedure. (26) In determining the reliability of an otherwise procedurally improper identification, the Court considers five factors:

   the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. (27) If these five factors militate in favor of the identification's reliability, then the identification is acceptable in light of "the totality of the circumstances," (28) despite the suggestive nature of the identification procedure. (29)

   Although the five criteria discussed above were first set out in Neil in 1972, the clearest explication of them came in 1977 with the Supreme Court's decision in Manson v. Brathwaite. (30) As one prominent commentator put it, "although [the five reliability factors] were first articulated in Neil v. Biggers, it was Manson v. Braithwaite (31) that reaffirmed and clarified the Court's two-pronged reliability approach." (32) Manson is the precedent most closely associated with the reliability approach and, along with its decision in Wade, (33) comprises the Supreme Court's substantive position on the exclusion of eyewitness identifications to this day. (34) Interestingly, despite the fact that it has been over thirty years since the Supreme Court solidified its position on suggestive eyewitness identification procedures in Manson, the Court has yet to revisit its ruling. (35)

   During that lengthy period, scholars have observed two major problems with the Manson reliability approach. First, scientific data shows that the approach does not provide legitimate safeguards against suggestive identification procedures and misidentification. (36) This lack of efficacy stems from the fact that three of the "reliability" factors (certainty, view, and attention) involve what psychologists refer to as "retrospective self-reports." (37) This means that the court relies on the witness' own assessment of these factors, a situation that is questionable according to most scientific literature on this topic. (38) According to one group of social scientists, "[b]y their nature, [retrospective self-reports] are subject to the vagaries of memory and information-processing capabilities." (39) Furthermore, the suggestive nature of the identification procedure itself may lead to the distortion of the witness' retrospective self-reporting, what is known as the "suggestiveness augmentation effect." (40) Correspondingly, the reliability approach not only does a poor job of divining reliability, but it also provides little protection against improperly suggestive identification procedures. The second major problem with the Manson reliability approach is that, as a practical matter, the standard for exclusion under Manson is so high that the defense's argument for suppression rarely prevails. (41)

   In addition to the two major flaws discussed above, the reliability approach also fails to provide a proactive proscription against suggestive identification procedures, or...