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<DIV class=timestamp>August 22, 2011</DIV>
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<H1><NYT_HEADLINE version="1.0" type=" ">34 Years Later, Supreme Court Will
Revisit Eyewitness IDs</NYT_HEADLINE></H1><NYT_BYLINE>
<H6 class=byline>By <A class=meta-per
title="http://topics.nytimes.com/top/reference/timestopics/people/l/adam_liptak/index.html?inline=nyt-per CTRL + Click to follow link"
href="http://topics.nytimes.com/top/reference/timestopics/people/l/adam_liptak/index.html?inline=nyt-per"
rel=author>ADAM LIPTAK</A></H6></NYT_BYLINE><NYT_TEXT>
<DIV id=articleBody><NYT_CORRECTION_TOP></NYT_CORRECTION_TOP>
<P>WASHINGTON — Every year, more than 75,000 eyewitnesses identify suspects in
criminal investigations. Those identifications are wrong about a third of the
time, a pile of studies suggest. </P>
<P>Mistaken identifications lead to <A class=meta-classifier
title="More articles about false arrests, convictions and imprisonments."
href="http://topics.nytimes.com/top/reference/timestopics/subjects/f/false_arrests_convictions_and_imprisonments/index.html?inline=nyt-classifier">wrongful
convictions</A>. Of the first 250 DNA exonerations, 190 involved eyewitnesses
who were wrong, as documented in “Convicting the Innocent,” a recent book by
Brandon L. Garrett, a law professor at the University of Virginia. </P>
<P>Many of those witnesses were as certain as they were wrong. “There is
absolutely no question in my mind,” said one. Another was “120 percent” sure. A
third said, “That is one face I will never forget.” A fourth allowed for a
glimmer of doubt: “This is the man, or it is his twin brother.” </P>
<P>In November, the Supreme Court will return to the question of what the
Constitution has to say about the use of eyewitness evidence. The last time the
court <A title="Manson v. Brathwaite"
href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=432&invol=98">took
a hard look at the question</A> was in 1977. Since then, the scientific
understanding of human memory has been transformed. </P>
<P>Indeed, there is no area in which social science research has done more to
illuminate a legal issue. More than 2,000 studies on the topic have been
published in professional journals in the past 30 years. </P>
<P>What they collectively show is that it is perilous to base a conviction on a
witness’s identification of a stranger. Memory is not a videotape. It is fragile
at best, worse under stress and subject to distortion and contamination. </P>
<P>The unreliability of eyewitness identification is matched by its power. </P>
<P>“There is almost nothing more convincing,” Justice William J. Brennan Jr.
wrote in <A title="Watkins v. Sowders"
href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=449&invol=341#ff4">a
1981 dissent</A>, quoting from a leading study, “than a live human being who
takes the stand, points a finger at the defendant, and says, ‘That’s the
one!’ ” </P>
<P>The American Psychological Association, in <A
title="American Psychological Association brief"
href="http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-8974_petitioneramcuapa.authcheckdam.pdf">a
friend-of-the-court brief</A> in the new Supreme Court case, said “research
shows that juries tend to ‘over believe’ eyewitness testimony.” </P>
<P>Experts in the field are pleased that the Supreme Court will again consider
the place of eyewitness evidence in the criminal justice system. </P>
<P>“It is exciting that the court has actually taken an eyewitness ID case for
the first time in many years,” Professor Garrett said, “even if it might be the
wrong case on the wrong issue.” The justices are likely to rule only about which
kinds of eyewitness identifications warrant a closer look from judges — just
those made after the police used improperly suggestive procedures or all
problematic ones? </P>
<P>The larger and more important question of what that closer look should
involve is probably not in play in the case, <A
title="Perry v. New Hampshire docket sheet"
href="http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-8974.htm">Perry
v. New Hampshire, No, 10-8974</A>. </P>
<P>The state of the law is thus likely to remain jumbled. On the one hand, the
court has said that the due process clause of the Constitution requires the
exclusion of at least some eyewitness testimony on the ground that it is
unreliable. On the other, judges are told to use a two-step analysis involving
the weighing of multiple factors that in practice allows almost all such
evidence to be presented to the jury. </P>
<P>Barry C. Scheck, a director of the Innocence Project at the Benjamin N.
Cardozo School of Law, said that what is needed in this area is a new “legal
architecture,” one in which judges play an authentic gatekeeping role. </P>
<P>He pointed to<A title="Special Master’s report in State v. Henderson"
href="http://www.judiciary.state.nj.us/pressrel/HENDERSON%20FINAL%20BRIEF%20.PDF%20%2800621142%29.PDF">
a pioneering report last year</A> from a special master appointed by the New
Jersey Supreme Court. The special master, Geoffrey Gaulkin, suggested that
memory should be treated “as a form of trace evidence: a fragment collected at
the scene of a crime, like a fingerprint or blood smear, whose integrity and
reliability need to be monitored and assessed from the point of its recovery to
its ultimate presentation at trial.” </P>
<P>There are all sorts of ways in which investigators could do a better job when
they have witnesses try to identify suspects. </P>
<P>One is double-blind administration of lineups, photo arrays and the like, in
which neither the person conducting the exercise nor the witness knows the
“correct” answer. Another is to tell the witness that the suspect may not be
present at all. </P>
<P>Judges, too, could help matters by instructing juries about the limitations
of eyewitness testimony and by letting experts testify about the nature of
memory. The best solution is probably a preliminary hearing, outside the
presence of the jury, to determine whether the evidence is trustworthy. </P>
<P>But the current Supreme Court can be wary of using the due process clause to
correct flaws in the criminal justice system. In 2009, for instance,<A
title="District Attorney v. Osborne"
href="http://www.law.cornell.edu/supct/html/08-6.ZS.html"> the court said</A>
that inmates have no right under the due process clause to test <A
class=meta-classifier title="More articles about DNA evidence."
href="http://topics.nytimes.com/top/reference/timestopics/subjects/d/dna_evidence/index.html?inline=nyt-classifier">DNA
evidence</A> that could prove their innocence. Chief Justice John G. Roberts
Jr., writing for the majority in the 5-to-4 decision, said the matter was better
handled by state legislatures. </P>
<P>“We are reluctant to enlist the federal judiciary in creating a new
constitutional code of rules for handling DNA,” Chief Justice Roberts wrote.
</P>
<P>The justices may have the same impulse as they consider reforms in the use of
eyewitness evidence: it may be a good idea, but not every good idea is mandated
by the Constitution. </P><NYT_CORRECTION_BOTTOM>
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<DIV><FONT size=2 face=Verdana>Wayne A. Fox<BR><A
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