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Wrongful Conviction: The Dangers of Eyewitness Testimony

There are currently close to two million American citizens behind bars. This number is unsettling, even under the assumption that the entire two million are truly guilty of the crimes for which they have been convicted and incarcerated. But what if there was one of them, just one, who was living in filth, bondage and constant danger- as punishment for a crime he or she did not commit?

Sadly, this has been the unfortunate experience of numerous citizens who have served time and subsequently been proven innocent- as well as undetermined numbers of current American inmates of the United States Department of Corrections. In the last twenty years there have been 265 post-conviction DNA exoneration rulings in the United States. And while DNA testing is a progressive means of clearing wrongfully convicted citizens, what about those convicts who are as innocent as those given DNA exonerations, but whose cases are not subject to the absolution that DNA evidence provides? For example, of the 265 DNA exonerated persons, 75% of them were convicted due to eyewitness misidentification testimony. Simply stated, the identifying witness was WRONG.

Wrongful conviction due to eyewitness misidentification has been a subject of social and legal controversy since the early 1900’s. Before DNA testing and the accuracy of modern technological forensics, individuals questioning the absolute precision of human recollection led to the 1911 release of Andrew Toth- a PA steelworker and victim of faulty eyewitness testimony who spent 20 years in prison for a murder he did not commit. Twenty years later Yale law professor Edwin Borchard wrote, Convicting the Innocent, a provocative work in which he chronicled 65 cases of wrongful convictions, 39 of which resulted from incorrect eyewitness testimony. That is an astonishing 60% wrongful conviction due to witness misidentification, in the early 1930’s.

With millions currently incarcerated, and the availability of DNA testing exonerating over two hundred since 1989, how many innocent Americans are doing time as a result of faulty witness identification and testimony in 2010? The American criminal justice system’s unquestioning acceptance of eyewitness testimony as solid evidence is becoming increasingly irresponsible. Considering the high percentage of proven misidentification cases as related to DNA exonerations, policy improvement in the eyewitness identification and testimony process is long overdue.

Organizations like The Justice Project http://www.thejusticeproject.org are working to reform the system by pushing for better policies and procedures, including adopting sequential line-ups and “double blind” administration, in which the suspect is not known to the administrator. These initiatives serve to take pressure off the witness, helping to insure a proper identification - if there is one to be made.

In the U.S. Supreme Court case of Manson vs. Brathwaite, an under-cover officer and an informant purchased heroin from a suspected narcotics dealer. The suspect was charged with dealing heroin. However, no line-up was ever conducted and the respondent was identified on the strength of but one photograph. No objection to the identification procedure was registered by the defense during trial, but after sentencing the Court of Appeals reversed the District Court’s denial of a writ for habeas corpus.

Subsequently, this case allowed the suppression of tainted eyewitness testimony in American courts rare, and has inaccurately remained controlling case law despite mounting scholarly research refuting the Brathwaite court’s views on human memory.

Consistent unreliability in a procedure so integral to the determination of limitations or termination of the freedoms of American citizens is unacceptable. In addition to pure human error, the margin for pre trial identification evidence obtained by suggestive and unnecessary police procedures is far too wide. The witness identification and testimony process of the American judicial system was considered flawed and questionable as early as 1911- yet has since remained largely unchanged, if not less scrutinized. From capital murder to car accidents witness identification is far too influential in the outcome of cases to continue in its unquestioned status in American criminal law. Wrongful conviction is a traumatic, devastating mistake that takes years from its victims lives, ruins families and causes irreparable damage. Eyewitness misidentification is responsible for more than half of all wrongful conviction cases. This statistic alone, justifies radical reformation.

Indeed, in New Jersey retired appellate judge Geoffrey Gaulkin was appointed by the New Jersey Supreme Court to study the reliability of eyewitness testimony and procedures. Gaulkin’s report called for extensive reforms given the potential unreliability of the practice. www.nytimes.com/2010/06/22/nyregion/22witness.html; http://www.criminallawlibraryblog.com/2010/06/new_jersey_report_of_the_speci_1.html.

Organizations like The Innocence Project and The Justice Project are pioneering real change. Click on the links to learn more, or donate to their efforts.

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