CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, December 23, 2004

CrimProf Scheck: We Are On Verge of Historic Reforms in Eyewitness Identification Procedures

Scheckp_1Cardoza CrimProf Barry Scheck, president of the National Association of Criminal Defense Attorneys, writes this month's column in the magazine Champion"Soon, the single greatest cause of the conviction of the innocent -- mistaken eyewitness identification -- will be significantly redressed by a series of historic reforms: We will see photo arrays and lineups conducted by a blinded examiner (the person running the procedure doesn't know the identity of the suspect); proper admonitions to witnesses that the real perpetrator may not be present; proper selection of fillers so they meet the description of the perpetrator, not the suspect; confidence statements from witnesses at the time of identification in their own words; and sequential presentation at identification procedures with an adequate number of fillers (at least five). Based on strong scientific proof that these reforms substantially reduce error and increase the capacity of police to find the real assailant, courts, legislatures, and prosecutors will adopt them because it's just good law enforcement. But they will also act because there is a constitutional imperative at work: The heart of the Supreme Court's due process jurisprudence in this area is to prohibit systemic practices that unnecessarily increase error.
     These reforms will move on three different tracks simultaneously. On one track, state and federal courts will reverse and revise Manson v. Braithwaite, instructing juries that failure to follow procedures that demonstrably reduce error must be held against the prosecution. Similarly, courts at pre-trial hearings will consider expert testimony and assess the taint from improper suggestiveness in light of new scientific evidence. On a second track, where trains are already in motion, police and prosecutors will voluntarily implement these reforms, following the lead of New Jersey, North Carolina, Minneapolis, Boston, Santa Clara (Calif.), and Northhampton (Mass.). And finally, state legislatures and Congress will follow the lead of Illinois, as well as suggestions from the American Bar Association, and enact bills funding pilot projects, research, and training."  Full column here.  [Mark Godsey]

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