WRONGFUL CONVICTIONS I  

Reading Assignments for
Eyewitness Identification

I. INTERDISCIPLINARY READING

1. For an understanding of how memory works and some of the factors that cause fallibility of eyewitness identifications, read the following  article:

Turtle, Lindsay and Wells, Best Practices for Eyewitness Evidence Procedures: New Ideas for the Oldest Way to Solve a Case (2003)

I also strongly recommend that you read the following article for a more complete, in-depth analysis of eyewitness identification:  Wells, Malpass, Lindsay, Fisher, Turtle and Fulero, From the Lab to the Police Station: A Successful Application of Eyewitness Research (2000)

Other articles that you may want to peruse include:

 Wells & Olson, Eyewitness Testimony (2003) (fairly in-depth review of research)

Wells, Small, Penrod, Malpass, Fulero and Brimacombe, Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads (1998) (in-depth analysis of research and discussion of role of eyewitness errors in innocence cases)

Wells & Loftus, Eyewitness Memory for People and Events (chapter 2003) (interesting analysis of memory, innocence case study)

Technical Working Group on Eyewitness Evidence, Eyewitness Evidence: A Guide for Law Enforcement (1999) (Fairly comprehensive U.S. Department of Justice report focusing on how to avoid misidentifications)

2. If you are not familiar with the Ronald Cotton case, see the Frontline story "What Jennifer Saw".  You will be able to view the actual photos and parts of the lineup that led to the wrongful conviction of Ronald Cotton.

3. As much of the reading demonstrates, misplaced confidence by eyewitnesses is a significant cause of wrongful convictions.  The following article, which is highly recommended, explores this issue:  Doyle No Confidence: A Step Toward Accuracy in Eyewitness Trials (The Champion, Jan/Feb. 1998) 

4. For additional articles and sample line-ups and show-ups, see Gary Wells' website and the website of the Eyewitness Identification Research Laboratory at the University of Texas at El Paso.  Take a look at this good example of bad and good lineups.

II. THE LAW

United States Supreme Court Cases

The United States Supreme Court first pointed to the many weaknesses of lineups conducted by the police in the case of United States v. Wade, 388 U.S. 218 (1967), as a result of which the Court concluded that a defendant who was going to be subjected to an in-person confrontation with an identification witness was entitled to the assistance of counsel for the purpose of observing the fairness, or lack of it, of the procedure.

In 1972, in Kirby v. Illinois, 406 U.S. 682 (1972), the Courtís majority held that the Wade right-to-counsel applied only to those confrontations which occur after the formal judicial adjudicatory process against a person has already commenced. Since most lineups occur fairly early in the process, soon after a person has been arrested, the Kirby case deprived the overwhelming majority of suspects of this Wade-created right of counsel.

In Manson v. Brathwaite, 432 U.S. 98 (1977) the Supreme Court held that "reliability" of an eyewitness identification is the linchpin in determining the admissibility of identification testimony." Factors to be considered in weighing the reliability were identified in Neil v. Biggers, 409 U.S. 188 (1972) and were said to include: the opportunity of the witness to view the criminal at the time of the crime; the degree of attention that the witness devoted to the criminal; the degree to which the description of the criminal as initially reported by the witness to the police matched the eventual in-person identification at the lineup; the level of certainty that the witness exhibited in making an identification; and the length of time that had elapsed between the crime and the identification of the suspect by the witness.

In light of what we now know about eyewitness identification, do you believe the Court reached the right result?  Why or why not?

Admissibility of Expert Testimony on Eyewitness Identification

Jurisdictions are split on whether and under what circumstances expert testimony on the reliability and fallibility of eyewitness identification is admissible.  For a partial collection of state cases on admissibility of expert testimony, click here.  Do you think such testimony should be admissible?  What are the reasons to allow experts to testify?  What reasons suggest that they should not be allowed to testify?  For a prosecutor's perspective, see Brown, A Tale of Discretion: Eyewitness Identification And Expert Testimony After People v. Lee.

The Missouri Supreme Court has addressed the admissibility of expert testimony regarding eyewitness identification in State v. Lawhorn.  Are you persuaded by the Court's analysis?