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Manson lives

No, not Charles; Manson v. Brathwaite, the last US Supreme Court decision addressing the issue of eyewitness identification, which held that an in-court identification could be suppressed if it was the product of a pretrial identification process that was so suggestive it could lead to an irreparable likelihood of misidentification.  In the opinion in the latest case on that issue, last week's decision in Perry v. New Hampshire, Justice Sotomayor details the legal history of the issue -- the Supreme Court's decisions in US v. Wade, Gilbert v. California, Stovall v. Denno, and Neil v. Biggers -- in which the Court initially outlined the nature of the problems with eyewitness identification.  She then highlights the empirical research that's been done on the subject in the 30+ years since those decisions:

Study after study demonstrates that eyewitness recollections are highly susceptible to distortion by postevent information or social cues; that jurors routinely overestimate the accuracy of eyewitness identifications; that jurors place the greatest weight on eyewitness confidence in assessing identifications even though confidence is a poor gauge of accuracy; and that suggestiveness can stem from sources beyond police-orchestrated procedures.

It arguably did in Perry's case.  He was stopped for suspicion of burglary, and while he was standing in a parking lot, a black man among several police officers, one of the witnesses to the robbery looked out the window and identified him as the burglar.  There was much to discredit that identification -- she failed to pick Perry out of a photo array a month later --  but she was allowed to testify about the pretrial identification at trial, and Perry was convicted.  He appealed, claiming that due process required a trial court to reject an unreliable identification, even if there was no police impropriety in how the identification process had been arranged.

Sotomayor bought into it, and if she'd been writing the majority opinion, we'd have a good bit more to talk about here.  But she wasn't; in fact, she was the lone dissenter.

The problems with Perry's position became clear in the oral argument last November.  Perry's argument focused on the special significance that the Court had given eyewitness testimony in Wade, Stovall, and the early cases.  If mistaken eyewitness identifications were such a problem, as those decisions indicated and as decades of subsequent research demonstrated, then merely foreclosing police involvement in producing those identifications wasn't sufficient:  due process demanded that faulty identifications be suppressed, regardless of how or why they were produced.  He got resistance to that argument from the usual quarters, Scalia especially, but even from Kennedy and Breyer.  And Kagan sealed the deal by posing the question of what would happen if some other category of testimony was shown to be even more unreliable than eyewitness testimony:  would that also be excluded by a due process argument?

That was the whole problem with Perry's argument.  The Bill of Rights is a procedural guarantee, not a substantive one.  A defendant has a right to a jury trial.  As Troy Davis and numerous others have learned, that is not a guarantee that the jury will come to the right result; in fact, after a guilty verdict, the focus on appeal is not whether the jury got it right, but whether the defendant's trial was fair.  As Scalia wrote in Crawford, the 6th Amendment right of confrontation is not a substantive guarantee that evidence will be reliable; it is a procedural guarantee that the reliability of evidence will be determined in a certain manner, through cross-examination.  Perry's argument dispensed with all that:  the focus would no longer be on the procedural aspect of how the identification was procured, but on the substantive aspect of how reliable it really was.

What's more, we get into the "floodgates of litigation" argument:  if we try to make a judicial determination of whether an eyewitness identification is sufficiently reliable to be admissible, what about accomplice testimony?  That of jailhouse informants?  To be sure, there may be special instructions, especially for the former, cautioning the jury to be very circumspect about accepting such testimony, but we don't put the trial judge in the position of saying, "That guy is lying, I'm not going to allow him to testify."  Those are the decisions we entrust to jurors.

One might argue that the high rate of mistaken identifications as a cause of wrongful conviction shows that approach isn't working.  That may be, but it also may be that the times, they are a'changin'.  The number of DNA exonerations has resulted in people becoming more wary of imposing a death penalty, but when the story of an exoneration also mentions that the defendant was convicted based on eyewitness testimony, it results in people becoming more wary of those identifications.  I've had juror in voir dire mention without prompting that eyewitnesses get it wrong, and a few questions -- "Have you ever gone up to someone that you thought you knew and realized that you were mistaken?"  "Have you ever met somebody and then a week later not recognized them when you saw them again?" -- can get the point across.  Judges are more willing to allow expert testimony on various subjects, like "gun focus" (the tendence of a witness to focus on a gun, rather than the gun holder's features) or cross-racial identifications, and even allow for state funding of it.  People are more accepting of the fact that seeing isn't necessarily believing.

And after all, that's what we have juries for.

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