Eyeing Changes to Witness Identification Evidence

In November, the U.S. Supreme Court is scheduled to hear arguments in Perry v. New Hampshire. That case will signal the first time in nearly thirty-four years when the High Court will have examined the issue of admissibility of eyewitness identifications, something last addressed in Manson v. Brathwaite, 432 U.S. 98 (1977). Clearly there have been numerous statutory and technological developments, as well as scientific advances in understanding human perception and memory, in the intervening period that justify a fresh look at the policies and procedures behind the admission of eyewitness identifications as evidence - evidence that often makes or breaks a case. Of approximately 250 cases since the late 1980s in which the defendant was later exonerated through DNA evidence, 190, or 76% of those cases were decided primarily upon erroneous eyewitness identifications. Clearly the process for admission of evidence based on eyewitness identifications is flawed and it is time for the court to address related shortcomings. Hopefully, when the nine justices promulgate any new guidelines based upon their review of Perry, they will take note of the recent New Jersey Supreme Court decision in State v. Larry R. Henderson, (A-9-09)(062218), decided August 24, 2011. Henderson is a decision I believe represents a much needed, and long anticipated, step in the right direction toward necessary reform.

A few brief excerpts from the syllabus to the NJ Supreme Court’s decision in Henderson are illustrative as to why:

Rodney Harper was shot to death in a Camden apartment early in the morning on January 1, 2003. James Womble was present when two men forcefully entered the apartment, seeking to collect money from Harper. Womble knew one of the men, co-defendant, George Clark, but the other man was a stranger. According to the State’s evidence, Clark shot Harper while the stranger held a gun on Womble in a small, dark hallway. Thirteen days later, police showed Womble a photo array from which he identified defendant as the stranger. That identification lies at the heart of this decision.

… the identification procedure was presided over by a detective who was not a primary investigator in the case. Nonetheless, when Womble was unable to make a final identification, the two investigating officers intervened and encouraged him to "do what you have to do and we’ll be out of here." Womble followed by identifying defendant. Womble never recanted the identification, but during the Wade hearing he testified that he felt as though Detective Weber was "nudging" him to choose defendant’s photo, and that there was pressure to make a choice.

At the conclusion of the hearing, the trial court found that the officers’ behavior was not impermissibly suggestive and ruled that evidence of the identification was admissible. The trial court applied the two-part Manson/Madison test to evaluate the admissibility of the eyewitness identification. See Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Madison, 109 N.J. 223 (1988). The test requires courts to determine first if police identification procedures were impermissibly suggestive; if so, courts then weigh five reliability factors to decide if the identification evidence is nonetheless admissible. The court found that there was "nothing in this case that was improper, and certainly nothing that was so suggestive as to result in a substantial likelihood of misidentification at all." The court also noted that Womble displayed no doubts about his identification, that he had the opportunity to view defendant at the crime scene, and that Womble fixed his attention on defendant "because he had a gun on him."

At trial, additional evidence relevant to Womble’s identification was adduced. This included Womble’s testimony about his ingestion of crack cocaine and alcohol on the night of the shooting; that the lighting was dark in the hallway where Womble and defendant interacted; and that Womble remembered looking at the gun pointed at his chest. Womble also admitted that he smoked about two bags of crack cocaine each day from the time of the shooting until speaking with police ten days later. Womble also testified that when he first looked at the photo array, he did not see anyone he recognized. To make a final identification, Womble said that he "really had to search deep." He was nonetheless "sure" of his identification. Womble identified defendant from the witness stand.

Neither Clark nor defendant testified at trial. The primary evidence against defendant was Womble’s identification and the detective’s testimony about defendant’s post-arrest statement. At the close of trial, the court relied on the existing model jury charge on eyewitness identification. Defendant did not object to the charge. The jury acquitted defendant of murder and aggravated manslaughter charges, and convicted him of reckless manslaughter, aggravated assault, and weapons charges. He was sentenced to an aggregate eleven-year term subject to a parole ineligibility period of almost six years.

HELD: The current legal standard for assessing eyewitness identification evidence must be revised because it does not offer an adequate measure for reliability; does not sufficiently deter inappropriate police conduct; and overstates the jury’s ability to evaluate identification evidence. Two modifications to the standard are required. First, when defendants can show some evidence of suggestiveness, all relevant system and estimator variables should be explored at pretrial hearings. Second, the court system must develop enhanced jury charges on eyewitness identification for trial judges to use.

…"[m]isidentification is widely recognized as the single greatest cause of wrongful convictions in this country." Most misidentifications stem from the fact that human memory is malleable; they are not the result of malice. An array of variables can affect and dilute eyewitness memory. The recent scientific studies that were examined in this record prove that the possibility of mistaken identification is real, and the consequences severe.

The current standards for determining the admissibility of eyewitness identification evidence derive from the principles the United States Supreme Court set forth in Manson in 1977. New Jersey formally adopted Manson’s framework in Madison. The Manson/Madison test entails a two step process. First, the court must decide whether the identification procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification."

Research that has emerged in the years since Manson was decided reveals that an array of variables can affect and dilute memory and lead to misidentifications. The variables are divided into two categories: system variables, which are factors like lineup procedures that are within the control of the criminal justice system; and estimator variables, which are factors related to the witness, the perpetrator, or the event itself – like distance, lighting, or stress – over which the legal system has no control… Among the Court’s findings on system variables are the following: where the identification procedures are administered by someone who knows the identity of the suspect there is an increased likelihood of misidentification; feedback by administrators affects the reliability of identification and should be avoided; and the record casts doubt on the reliability of showups, or single-person lineups conducted more than two hours after the event. Regarding some of the estimator variables, the Court finds that the reliability of an identification can be affected by: high levels of stress on the eyewitness; when the interaction is brief, the presence of a visible weapon; cross-racial recognition; and witness interaction with non-State actors like co-witnesses and other sources of information. In addition, the studies reveal generally that people do not intuitively understand all of the relevant scientific findings. As a result, there is a need to promote greater juror understanding of those issues.

The remand hearing revealed that Manson/Madison does not adequately meet its stated goals: it does not provide a sufficient measure for reliability, it does not deter, and it overstates the jury’s innate ability to evaluate eyewitness testimony. Remedying the problems with the current Manson/Madison test requires an approach that addresses its shortcomings: one that allows judges to consider all relevant factors that affect reliability in deciding whether an identification is admissible; that is not heavily weighted by factors that can be corrupted by suggestiveness; that promotes deterrence in a meaningful way; and that focuses on helping jurors both understand and evaluate the effects that various factors have on memory. Two principal changes to the current system are needed. First, the revised framework should allow all relevant system and estimator variables to be explored and weighed at pretrial hearings when there is some actual evidence of suggestiveness. Second, courts should develop and use enhanced jury charges to assist jurors in evaluating eyewitness identification evidence. Under our revised approach, to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification. The State must then offer proof to show that the proffered eyewitness identification is reliable, accounting for system and estimator variables. However, the court can end the hearing at any time if it finds from the testimony that defendant’s threshold allegation of suggestiveness is groundless. The ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification. If, after weighing the evidence presented, a court finds from the totality of the circumstances that defendant has demonstrated a very substantial likelihood of irreparable misidentification, the court should suppress the identification evidence. If the evidence is admitted, the court should provide appropriate, tailored jury instructions.

In sum, the New Jersey Supreme Court, despite it too having adopted and relied upon the standards enunciated by the U.S. Supreme Court in Manson for decades, has identified numerous problems with the continued reliance on the Manson standards and made an effort to remedy those deficiencies - a decision I completely agree with.

Possible police contamination and the employment of suggestive methodologies during eyewitness identifications are issues I routinely deal with in my own practice. Even more frequently, a defendant whose charges hinge upon eyewitness identification routinely must fight just to have the court consider commonplace elements that may have affected an ID - whether it was dark, how far away the witness was, the amount of time the witness allegedly saw the defendant, whether a weapon was present, whether drugs or alcohol had been used by the witness, what state of mind/stress the witness was under, etc. etc. - the list goes on. Ultimately though, the issue that arises most frequently is the reliability of the witness’ memory, itself.

Most people don’t remember where they were or what they were doing a month ago, and yet at trial, the prosecution will ask a jury to convict a defendant primarily on very specific details of what a witness remembers from several months or even years ago. Studies have shown that human memory is very malleable and that time can have a significant effect as to what and how we remember. When cross-examining an eyewitness, I often ask the question, "Is your memory of those events clearer now, or was it clearer then?" Inevitably, the answer is "then", yet without the court’s proper instruction to the jurors, this detail is easily overlooked and dismissed as source of reasonable doubt.

Ultimately, if a defendant raises credible questions as to the accuracy or legitimacy of eyewitness identification, Due Process and other Constitutional safeguards require an examination of those concerns, and every opportunity to raise the requisite reasonable doubt with the jury. More than that though, it will require the crafting of explicit jury instructions regarding how eyewitness testimony should be considered (e.g., how much weight to give it, etc.). In this last regard alone, Henderson, is a bold step in the right direction.

Our judicial system is, to a large extent a self-governing entity and our criminal justice system needs constant care and revision to ensure the effective administration of justice. I agree with many others that we still need to make improvements such as greater access to DNA testing, expanded preservation of evidence, recordings of any interrogations resulting in self-incriminating statements, and more. However, the Supreme Court will soon have an opportunity to at least address the issues surrounding the evidentiary standards regarding eyewitness identifications. It’s my hope that they follow in the steps of the New Jersey Supreme Court in Henderson and I.D. the long-standing problem with I.D.’s.

If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828