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January 2012, Week 4

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Our Dangerous Devotion to Eyewitness Testimony
Patricia J. Williams
The Nation
January 18, 2012
This article appeared in the February 6, 2012 edition of The Nation.
http://www.thenation.com/article/165725/our-dangerous-devotion-eyewitness-testimony
 
"We see what we want to see," my grandmother used to
say. This insight visited me recently after I ran across
the mall chasing a woman I thought was my cousin. It
wasn't, as it turned out, but I didn't realize that
until after I had puffed up behind her, bopped her
amiably on the shoulder and cried out, "Boo!"

How was it possible, I thought in retrospective
embarrassment, to so wrongly misidentify someone I know
so well? Empirically my experience was all too common.
I'd been thinking about my cousin a few moments before
and saw the woman through the lens of those thoughts. We
often project our life's associations onto the faces of
strangers. Constantly-if mostly unconsciously-we
familiarize them with learned stereotypes. If we are
wise, we learn to take caution with our assumptions. We
recognize this innate fallibility, and most of the time
it doesn't matter very much.

Oddly enough, however, we reverse that supposition in
the one context where fallibility matters most: in
criminal cases, eyewitness testimony is viewed as the ne
plus ultra for the prosecution, despite a century's
worth of psychological and sociological studies
revealing that, from Sacco and Vanzetti to Troy Davis,
witnesses misperceive a startling percentage of the
time. "Human beings are not very good at identifying
people they saw only once for a relatively short period
of time," writes Cornell law professor Michael Dorf.
"The studies reveal error rates of as high as fifty
percent-a frightening statistic given that many
convictions may be based largely or solely on such
testimony. These studies show further that the ability
to identify a stranger is diminished by stress (and what
crime situation is not intensely stressful?), that
cross-racial identifications are especially unreliable,
and that contrary to what one might think, those
witnesses who claim to be `certain' of their
identifications are no better at it than everyone else,
just more confident."

The costs of this phenomenon are perhaps best revealed
in data compiled by the Innocence Project, which has
concluded that out of 281 postconviction exonerations
secured through DNA in the United States, eyewitness
misidentification "was a factor in 75 percent.making it
the leading cause of these wrongful convictions."
Luckily, there are substantiated ways to guard against
such error. Experts have cited two main types of
variables that can adversely affect eyewitness
identification: "estimator variables," the hardest to
control for, which include things like the degree of
lighting, distance or speed within a given crime scene,
as well as the level of trauma to the witness; and
"system variables," defined as "those that the criminal
justice system can and should control," which include
law enforcement tools like lineups and photo arrays. A
number of reforms involving the latter have the proven
capacity to boost the accuracy of witness IDs. These
include "blind administration," where an officer
conducting a lineup is not aware of who the suspect is
(and thus not capable of revealing his or her identity
via gestures, vocal inflections or body language); "non-
suggestive" lineups, made up of people who generally
resemble a witness's description, so that the suspect
does not stand out; allowing witnesses to sign a
statement indicating their level of confidence in their
choice; and presenting members of a lineup sequentially
rather than simultaneously (to mitigate the pressure to
choose any kind of close-looking one when we are
presented with a bunch of faces at once). Such remedial
safeguards have so reduced the error rate-and so
indisputably-that a number of local jurisdictions and
eleven states thus far have adopted some or all of them
as standard operating procedure.

It would seem logical, then, to implement these reforms
universally, and for courts to screen eyewitness
evidence for those basics of procedural reliability
before such testimony is heard by a jury. But on January
11, in Perry v. New Hampshire, the Supreme Court
rejected that notion, ruling that such a pretrial
inquiry is not a requirement of due process "when the
identification was not procured under unnecessarily
suggestive circumstances arranged by law enforcement."
This is subtle language: it's not the same as what we
think of as police corruption, as in overt suppression
of evidence. Rather, it relates to the kinds of
situations at stake in Perry: Was the suspect the only
black man in a lineup? Was he handcuffed and flanked by
police? Was his image shown in photo array after photo
array until he began to look familiar? If the chief
investigator was the one administering a lineup, was his
belief in the suspect's guilt communicated to the
witness via subtle coaching? All such factors may be
highly suggestive, triggering the irrelevant
associations and false memories that can lead to
inaccurate results.

Perry does two unfortunate things. It undercuts pretrial
examination of virtually all "estimator variables," no
matter how problematic, since those are less likely to
directly involve police. And by drawing the line at
"unnecessarily suggestive" actions by state actors, the
ruling sets a very high bar for challenging eyewitness
evidence, ignoring the hefty empirical proof that
misidentification is a pervasive fact of life. Justice
Sonia Sotomayor, the lone dissenter in Perry, wrote that
this ruling invites arbitrary results by making "police
arrangement" the "inflexible step zero." The concerns of
due process ought to be based on the actual likelihood
of misidentification, said Sotomayor, "not predicated on
the source of suggestiveness." Reiterating that any
preventable misidentification is a miscarriage of
justice-not merely where the police are setting the
stage-she underscored the Innocence Project's concern
that inaccurate eyewitness testimony is the leading
cause of wrongful convictions in US courts. DNA has
exonerated eight misidentified inmates on death row. If
we have at our disposal simple reforms that have been
proven to guard against such tragic mistakes, why on
earth should we not implement them universally?

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