CrimProf Blog

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

Friday, May 22, 2020

Omdal on Eyewitness Misidentification

Jens Omdal has posted Believing Without Seeing: The Problem of Eyewitness Misidentification (The Loyola University New Orleans Journal of Public Interest Law Volume 20, Fall 2018, Number 1) on SSRN. Here is the abstract:
Eyewitness testimony is the primary source of evidence in over 50,000 criminal trials every year, and eyewitness misidentification is the leading cause of wrongful convictions. Eyewitness error has played a substantial role in over 70% of overturned convictions. My comment discusses the intricate malfunctions of eyewitness testimony and proposes a potential solution by incorporating an impartial third party attorney into the criminal justice system to act as a check upon the witness, questioning his confidence and his memory before he ever gets to the witness stand. The hope is that by doing so, the eyewitnesses with insecure testimonies, and those that would have made a misidentification that would lead to a wrongful conviction would be filtered out early on.

The Supreme Court in Neil v. Biggers, laid out a five-factor analysis for determining eyewitness reliability in an effort to solve the misidentification problem. These factors have been heavily scrutinized since their introduction, and it is query whether they are a reliable determinant. Other reforms could be implemented like questioning witnesses via blind administration where the officer conducting the interview is unaware who the suspect is, preventing bias. Furthermore, experts should be permitted to testify to the shortcoming of eyewitness memory. The courts are reluctant to incorporate many of these proposals, instead choosing to rely upon traditional safeguards like cross-examination. By embracing these modifications the nightmares of wrongful convictions can be put to rest once and for all.

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