Eye of the Beholder

Taking powerful new scientific evidence about the unreliability of eyewitness identification into account, last year the New Jersey Supreme Court established strict rules to determine when eyewitness identifications are unreliable enough to be inadmissible. In a case decided earlier this week, Perry v. New Hampshire, the Supreme Court had an opportunity to follow suit with a reconsideration of its own. Regrettably but not surprisingly, the Court instead decided to ignore the new evidence. This unfortunate decision is certain to lead to many more innocent people being convicted even though a standard that is workable and more consistent with constitutional values is available.

Perry required the Court to choose between two different systems for determining when eyewitness testimony should be presented to a jury. At a minimum, the Court’s precedents seemed to require that judges exclude eyewitness identifications that were the result of police “rigging”— that is, when police deliberately manipulated a witness lineup or photo array. Some circuit courts, however, went further, arguing that judges should evaluate and possibly exclude eyewitness identification if the surrounding circumstances were “suggestive” enough to implicate a particular suspect even if this suggestiveness was not the result of intentional police misconduct. In Perry, the Supreme Court ultimately chose the former, less protective standard. A judge cannot exclude highly unreliable eyewitness identifications, according to the Court, as long as the suggestiveness was a result of flawed procedures applied in good faith rather than deliberate malfeasance on the part of the police.

The intent of the police might be relevant to whether officers should be held liable in the case of a wrongful conviction. But if a lineup is so suggestive as to be unreliable, the intent of the police is beside the point. The majority’s decision to limit the judicial exclusion of eyewitness testimony to cases where there has been police misconduct has the virtue of establishing a clear rule. But this rule is not logically related to its asserted purpose of screening out excessively unreliable evidence. To an innocent person sitting in jail because of erroneous eyewitness identification, whether he was actually framed is not the crucial issue. Unreliable evidence doesn’t magically become more reliable because the police officers who produced the identification acted in good faith.

As was predicted by those who witnessed the oral arguments, the Court’s decision was lopsided, with Justice Sonia Sotomayor the lone dissenter. The majority opinion, which Chief Justice John Roberts shrewdly assigned to liberal icon Justice Ruth Bader Ginsburg, is superficially persuasive. Eyewitness evidence is hardly alone in being potentially unreliable. “We have concluded in other contexts, however,” argues Ginsburg, “that the potential unreliability of a type of evidence does not alone render its introduction at the defendant’s trial fundamentally unfair.” If juries are permitted to evaluate the probative value of even more inherently unreliable evidence, such as the testimony of jailhouse snitches, why should they not be allowed to weigh the reliability of eyewitness identifications produced in suggestive circumstances in the absence of active state misconduct?

As Justice Sotomayor argues in her powerful dissent, however, this line of reasoning is problematic. What’s relevant here is not how unreliable evidence is per se but the likelihood that juries will overrate its reliability. The testimony of jailhouse snitches is often unreliable, but the unreliability of self-serving testimony is self-evident and relatively easy to communicate to a jury. Eyewitness testimony, conversely, is widely assumed to be reliable. The Court’s precedents, Sotomayor argues, are “rooted in the assumption that eyewitness identifications upend the ordinary expectation that it is 'the province of the jury to weigh the credibility of competing witnesses.' … Jurors find eyewitness evidence unusually powerful and their ability to assess credibility is hindered by a witness’ false confidence in the accuracy of his or her identification.”

Sotomayor cites recent social scientific research—most prominently, Brandon Garrett’s Convicting the Innocent— showing that juries place excessive faith in eyewitness identifications. It becomes difficult to argue that eyewitness identification should be treated like other forms of evidence given that it is far more likely to lead to false convictions:

The empirical evidence demonstrates that eyewitness misidentification is “‘the single greatest cause of wrongful convictions in this country.’” Researchers have found that a staggering 76% of the first 250 convictions overturned due to DNA evidence since 1989 involved eyewitness misidentification. Study after study demonstrates that eyewitness recollections are highly susceptible to distortion by postevent information or social cues; that jurors routinely overestimate the accuracy of eyewitness identifications; that jurors place the greatest weight on eyewitness confidence in assessing identifications even though confidence is a poor gauge of accuracy; and that suggestiveness can stem from sources beyond police-orchestrated procedures. The majority today nevertheless adopts an artificially narrow conception of the dangers of suggestive identifications at a time when our concerns should have deepened.

The majority in Perry suggests that empowering judges to evaluate and potentially exclude eyewitness identifications in situations where suggestiveness was not a result of police misconduct would be unworkable, greatly expanding the discretion of judges and flooding the courts with appeals. But there is no reason to believe that this is the case. After all, as Sotomayor notes, four federal circuit courts already use the standard advocated in the dissent, but there “has been no flood of claims” in these courts.

Because of the exoneration of large numbers of people based on DNA evidence, we know that eyewitness testimony is particularly likely to lead to the innocent being convicted. But with the honorable exception of Justice Sotomayor, the Court has decided to look the other way.

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