The execution of Troy Davis in Georgia has again raised serious concerns about the reliability of eyewitness testimony. That case, along with the U.S. Supreme Court’s acceptance of a case involving eyewitness identification, indicates that the time may be right to reconsider this controversial form of evidence.
The statistics are troubling. As Scientific American’s blog reports, The Innocence Project has found that “mis-identification by eyewitnesses played a role in three quarters of the 273 cases of mistaken conviction later exonerated by DNA evidence in the U.S.” In the Troy Davis case, several of the eyewitnesses recanted their testimony before his execution.
This is actually nothing new. Long ago, Justice Felix Frankfurter said, “[t]he identification of strangers is proverbially untrustworthy” (quoted in U.S. v Wade (1967) 388 US 218, 228, 18 L Ed 2d 1149, 87 S Ct 1926). However, despite the almost universal awareness of untrustworthiness, reviewing courts seldom find due process violations in the admission of eyewitness identification testimony.
Nonetheless, appellate counsel can still try to overturn a conviction based on unreliable eyewitness testimony. Anytime eyewitness identification was an important factor in a case, review the record carefully, paying particular attention to any facts casting doubt on the reliability of the identification, instructions (given or requested) on evaluating eyewitness identification testimony, and the effectiveness of trial counsel’s efforts to prevent its admission or mitigate its effect.
Here are some questions to keep in mind:
- Were the identification procedures suggestive, i.e., did they focus the witnesses’ attention on the defendant? If so, were they unduly suggestive under the circumstances? If so, was there a substantial likelihood of irreparable misidentification in the totality of the circumstances?
- Was the defendant exhibited in a lineup without an attorney present and without a valid waiver of counsel after the right to counsel had attached?
- If an in-court identification was based on an unduly suggestive out-of-court identification, did it have indications of independent reliability?
- What instructions did the trial court give on eyewitness identification? Did the trial court refuse any requested instructions?
- Did trial counsel make a motion to suppress the identification evidence on due process grounds?
- Did trial counsel introduce or attempt to introduce evidence on the reliability of eyewitness identification?
For complete coverage of lineups and identification, turn to CEB’s California Criminal Law Procedure and Practice, chap 22. Also check out CEB’s Appeals and Writs in Criminal Cases §4.9, on identification procedures.
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