Garrett on Eyewitnesses and Exclusion

Brandon L. Garrett (University of Virginia School of Law) has posted Eyewitnesses and Exclusion (Vanderbilt Law Review, Vol. 65, 2012) on SSRN. Here is the abstract:

The dramatic moment when an eyewitness takes the stand and points to the defendant in the courtroom can be pivotal in a criminal trial. That piece of theater, however compelling to jurors, is staged. It is obvious where the defendant is sitting. And the memory of that eyewitness will have invariably been tested before trial using photo arrays or lineups. Such courtroom displays have been so long accepted that their role in the U.S. Supreme Court’s due process jurisprudence regulating the eyewitness identifications has been neglected. The due process test that regulates tens of thousands of eyewitness identifications each year permits suggestive pre-trial procedures - long known to increase the dangers that the innocent may be misidentified - if the judge decides those identifications are otherwise "reliable." In this Article, I uncover an approach adopted by the vast majority of courts, but whose importance has not been appreciated, which short-circuits that already malleable due process inquiry. Even if a prior lineup was suggestive and illegal, judges allow a courtroom identification by citing to its supposed "independent source." This approach to exclusion of eyewitness identifications has it backwards. It is the courtroom identification that should be excluded. In contrast, flaws in procedures used shortly after the crime should be fully aired before the jury. As efforts to improve eyewitness identification procedures gain traction in response to DNA exonerations and social science research establishing the fragility of eyewitness memory, lawmakers and judges must revisit the entrenched problem of the courtroom identification. If courtroom identifications are not per se excluded in cases with a prior identification, judges may circumvent crucial efforts to safeguard the accuracy of eyewitness procedures.