On Wednesday the U.S. Supreme Court ruled that eyewitness evidence requires no extra cautions or inquiry to make it admissible. Justice Ruth Bader Ginsburg wrote the majority opinion of the Court and in the decision said that there is no reason to treat eyewitness identification as any different from other potentially flawed evidence. The opinion states, only when “there is ‘a very substantial likelihood of irreparable misidentification,’ Simmons v. United States, 390 U. S. 377, 384 (1968), the judge must disallow presentation of the evidence at trial.”
The truth is that there is always a very substantial likelihood of irreparable misidentification. Eyewitness misidentifications are the leading cause of wrongful convictions, and there is 30 years of social science evidence proving that eyewitnesses often make mistakes, according to the Innocence Project.
This new opinion upholds previous decisions from cases such as such as Neil v. Biggers, 409 U. S. 188 (1972) and Manson v. Brathwaite, 432 U. S. 98, 111–112 (1977), and keeps the due process test restricted only to errors made by law enforcement officers.
While Ginsburg said that eyewitness testimony is no different than any other potentially flawed testimony, that is simply false. Eyewitness testimony is different than other types of evidence. Humans, especially those under pressure, make mistakes. Further, this opinion seems to ignore the weight with which eyewitness identifications are held by most juries. These identifications tend to be extremely convincing with juries, and as a result held as more reliable or valuable than other evidence. These facts show that eyewitness IDs are in fact different than other types of testimony and evidence, and should thus be treated as such.
In taking up this case, according to the Court’s opinion, they sought “to resolve a division of opinion on the question whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police.” Given that even eyewitness identifications made under the best of circumstances are frequently flawed, it seems only logical to conclude that, of course, preliminary assessment of reliability should occur.
The Court’s decision also highlights the fact that the Constitution precludes defendants from convictions based on unreliable evidence not by refusing to admit that evidence but instead by providing them the means to persuade a jury of the unreliable nature of that evidence. It is necessary here to return to the fact that juries look at eyewitness testimony as exceedingly compelling, and as a result this sort of evidence must be treated with the utmost care. Moreover, the aforementioned social science and America’s more than two-decade-long experience with DNA exonerations, demonstrate that the due process standards announced in Neil and Manson are simply inadequate to weed out bad IDs before trial and that juries just don’t have the knowledge or skill set to discount them during trial. Thus, under the current regime upheld in this case, defendants have a very small chance of preventing the jury from hearing an identification or being able to convince a jury of the invalidity of eyewitness testimony once it comes in.
One of the big issues in this case deals with the jury’s right to weigh the credibility of witnesses against one another, a tenant that our legal system is based upon. Would instituting a rule requiring judges to complete pretrial screenings of eyewitness evidence every time an eyewitness identification impinge on the jury’s right to determine the weight and reliability of the testimony themselves? The Supreme Court seems to think so, yet based on empirical social science research it seems unfair to allow unchecked eyewitness testimony into the courts on such a broad scale. The opinion addresses the use of jury instructions to institute a level of fairness into the use of eyewitness identifications, but again the evidence shows that this testimony has an exceptionally powerful impact on juries. A possible remedy for this issue is the use of expert witnesses in explaining to a jury the issues with eyewitness identifications.
Justice Sonia Sotoymayor dissented from the Court’s opinion, and her dissent echoes all of the above issues. Sotomayor summarized these by saying, “this Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury,and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial.”
Unfortunately, Sotomayor’s opinion was not the majority opinion of the Court, and the status quo set forth by preceding cases remains, leaving eyewitness identifications as largely admissible in spite of their tendency to hinder the justice system.
The real question is what does this mean for the reform of identification procedures and law surrounding identifications sought by the Innocence Movement. Will law enforcement, prosecutors and courts simply point to Perry and say “well, the Supreme Court doesn’t think there is a problem so why should we?” Only time will tell.