by Valena Elizabeth Beety

How do we correctly identify the culprit of a crime? DNA testing exposes wrongful convictions, and scientific studies increasingly examine and evaluate evidence as data: either accurate or inaccurate. In the past five years, the National Academy of Sciences (NAS) has produced two seemingly divergent reports examining courtroom evidence and accuracy. One report concerns forensic science, the other eyewitness identifications; one on science and one on humans.

Their separation is not so simple; indeed, the eyewitness who saw the culprit is often compared to the analyst examining trace forensic evidence. Both put forward vital evidence in a criminal trial, and prosecutors subject both the testifying eyewitness and the lab technician to the pressure of “getting it right.” Yet their binding connection in the NAS reports is of getting it wrong: presenting unreliable evidence in court that leads to wrongful convictions. Forensic fraud and eyewitness misidentification are the two leading causes of wrongful conviction in DNA exonerations. The NAS reports on each arise from the groundwork of the innocence movement and the reports criticize the current practices on gathering and using eyewitness testimony and forensic evidence in criminal cases.

Over five years have passed since the National Academy of Sciences released Strengthening Forensic Science in the United States: A Path Forward (“A Path Forward”). The criticisms at the core of A Path Forward have dynamically changed the relationship between law and forensic sciences. Due to the findings of this critical report, the Department of Justice has now established broad oversight of forensic crime labs. In addition, some states are removing crime labs from police control. The Federal Bureau of Investigation (FBI) is leading a national reopening of closed cases involving hair analysis—admitting to misleading testimony by agents. Most important, exonerations due to these changes continue to expose false findings in forensic science disciplines.

A Path Forward questioned whether forensic science results are reliable or even valid when used in criminal trials. Indeed the report, questioning even fingerprint evidence, found only DNA evidence to be completely infallible. A Path Forward garnered the attention of the legal community to the importance of the forensic sciences, particularly in innocence litigation. Now, will similar reform be implemented in regard to eyewitness identification?

In Manson v. Brathwaite, the United States Supreme Court created a test to determine whether eyewitness identifications should be admitted as evidence. The Court held that the reliability of an eyewitness identification was the most important factor in determining its admissibility. That was in 1977. Almost forty years later, hundreds of research projects and papers have shown exactly how unreliable the Court’s admissibility test is.

The ineffectiveness of the Manson test may be due to the Supreme Court’s willingness to remain “content to rely upon the good sense and judgment of American juries.” In its opinion, “[j]uries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” Unfortunately, the current admissibility test provides little guidance to jurors. The Manson test’s five factors—the witness’s opportunity to view the criminal during the crime, degree of attention, accuracy of prior description, level of certainty, and the length of time between incident and identification––are poor indicators of a witness’s reliability.

The National Academy of Sciences’ new report, Identifying the Culprit: Assessing Eyewitness Identification (“Identifying the Culprit”), may be the impetus needed to change the national governing standard. The report takes readers above and beyond the current Manson test. Identifying the Culprit may have a national impact on our executive, judicial, and legislative branches similar to that of A Path Forward. The Supreme Court could wisely use the NAS findings to completely overhaul the current test for admissibility of eyewitness testimony.

Will the changes recommended by Identifying the Culprit endanger what could potentially be the most powerful evidence presented in a case? A confident victim who identifies a perpetrator can often convince a jury to convict, even without corroborating physical evidence. As prominent eyewitness scholar Dr. Elizabeth F. Loftus put it, “[E]yewitness testimony is likely to be believed by jurors, especially when it is offered with a high level of confidence, even though the accuracy of an eyewitness and the confidence of that witness may not be related to one another at all.”

Identifying the Culprit calls into question the human capacity to accurately remember events. The report challenges “the malleable nature of human visual perception, memory, and confidence; the imperfect ability to recognize individuals.” More damning, the report identifies and disparages the current law enforcement policies and procedures that “can result in mistaken identifications with significant consequences.” Identifying the Culprit bluntly “recommends” that state police and prosecutors overhaul their eyewitness identification protocols and procedures.

Identifying the Culprit also presciently suggests actions that are now being taken to reform police protocol. One of the report’s recommendations is to video record witness identifications. Had Identifying the Culprit been released a few months later, perhaps it would have incorporated the growing reality of body cameras for law enforcement, discussing how body cameras facilitate recording far more interactions with witnesses than was possible before. The police shootings and brutal treatment of African-American men emphasize the importance of recording interactions with civilians, rather than relying solely on the only eyewitnesses often present: the officer and the person detained.

These recommendations for reform are uncomfortable, and yet Identifying the Culprit was drafted using the input of a committee composed of law enforcement officers, prosecutors, defense attorneys, professors, and scientists. This diverse committee adopted the same purpose as articulated by the Forensics NAS Report Committee in A Path Forward: to protect the innocent from wrongful conviction and to protect society from true perpetrators of crimes. Both reports seek to bring together the scientific, legal, and law enforcement communities to pursue these noble goals.

Finally, the overarching issue of prosecutorial pressure for specific testimony must be addressed with both eyewitness and forensic evidence. Prosecutors may encourage witnesses to testify with absolute confidence that the defendant is the perpetrator. Yet, forensic science is often not capable of an exact match to a defendant, and eyewitness identification can be influenced by suggestive techniques that create false confidence.

Both NAS reports ultimately concern themselves with reliability and accuracy. Forensic findings and eyewitness testimony are both incredibly influential in the courtroom. However, errors have inculpated many innocent men and women. Both reports address the potency of these types of evidence. The committee that was appointed to draft Identifying the Culprit looked to scientific studies spanning 30 years—most of which had been completed since the last authoritative ruling by the Supreme Court on eyewitness identifications. The committee also heard presentations from fellow scientists, police officers, and members of the legal community. Identifying the Culprit is useful both for its amalgamation of data as well as for its projection of change for criminal justice, inside and outside of the courtroom.

This piece begins with a sketch of A Path Forward and the impact it has had on all branches of government. My discussion of the growing influence of that report and the resulting reform of the fields of forensic science then leads to questions about the reliability of eyewitness evidence. After discussing Identifying the Culprit, this article culminates in addressing the impact these reports have had in cases of innocence, and discussing the problem of prosecutorial pressure in shaping and distorting forensic and eyewitness testimony. Both reports can influence the criminal justice system and thereby attain their joint goal of identifying the true perpetrator.


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