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Eyewitness Identification Has 50% Error Rate? How We Throw People in Prison Based on False ID

From Sacco and Vanzetti to Troy Davis, witnesses to crime scenes get it wrong too often. So why did the Supreme Court just make it harder to challenge such evidence in court?

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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?

Patricia J. Williams, a professor of law at Columbia University and a member of the State Bar of California, writes The Nation column "Diary of a Mad Law Professor."

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