A recent article in the New York Times focused on a frightening phenomenon in criminal cases: mistakes in eyewitness identifications. Among many alarming facts, the article notes that a “pile” of studies suggest that of the 75,000 eyewitness identifications made every year, about a third are wrong. Sometime in November, the United States Supreme Court will revisit the issue of eyewitness identifications for the first time since 1977.
Experienced criminal defense attorneys know that insofar as eyewitness identifications are concerned, there is no correlation between certainty and accuracy. As the article notes, “[m]any of those eyewitnesses were as certain as they were wrong.”
But it gets worse: Despite being horribly inaccurate, eyewitness identifications are, paradoxically, among the most powerful pieces of evidence in criminal cases. As noted by Supreme Court Justice William Brennen, “[t]here is almost nothing more convincing than a live human being who takes a stand, points a finger at the defendant , and says, ‘That’s the one!'”
The question the Supreme Court will answer in November is a narrow, but important one: Whether the Due Process Clause of the United States Constitution requires judges to question the reliability of all identifications made under “suggestive” circumstances, or only when the suggestive circumstances were orchestrated by police.
But the Supreme Court could use the opportunity to require a more rigorous standard of reliability before a eyewitness identification is admitted as a piece of evidence. That could include, for example, “double-blind” photo arrays where neither the police, nor the witness know for certain whether the suspect is included in the lineup. Criminal defense lawyers know that unfortunately, such practices are not the norm in Houston and much of Texas.
We will be anxiously awaiting the Supreme Court’s decision…