n% of false convictions involved X; therefore ...?

In Benn v. United States the District of Columbia Court of Appeals comes close to embracing the following argument: "X% of false convictions resulted from cases in which eyewitness identification evidence was given; therefore, eyewitness identification should be [limited] [regulated]." See id., 2009 WL 2778266, *6 n. 49 (September 3, 2009) (draft opinion).

Dear Reader, does the following logic hold?:

(i) 100% of false convictions resulted from cases in which judges were involved; therefore, the use of judges in criminal cases should be [abolished] [limited] [regulated].

(ii) A high percentage of false convictions resulted from cases in which defense counsel were involved; therefore, the use of defense counsel in criminal cases should be [abolished] [regulated] [limited].

(iii) 100% of false convictions resulted from cases in which evidence was involved; therefore, the use of evidence in criminal cases should be [abolished] [regulated] [limited].

Can we agree that while it might (or might not) be a good idea to abolish, regulate, or limit the use of eyewitness identifications, judges, defense counsel, or evidence simpliciter in criminal cases, the statistics cited above do nothing to support the proposition that any of the suggested things should be done in any of the the above situations. Isn't that true? (It is.)

Incidentally: constitutional considerations aside, if the above statistics show or suggest that the use of eyewitness identification evidence should be [further] regulated or limited, does this thesis also hold when the eyewitness identification evidence is offered by a criminal defendant? If not, why not?

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Inanities of the sort mentioned above sometimes make me think it's time for me to retire. Is it really necessary to re-learn, re-teach, and re-hash basic principles of evidence to the judiciary? (E.g.: "Children, remember that a brick does not a wall make. And keep in mind that sometimes the cases come out the way they should. Don't we need to know how often that happens? Yes, children....") I grow weary.

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Undoubtedly I would feel differently if I had been convicted of a crime as a result of mistaken eyewitness identification evidence. Therefore?

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This is not to say that there are no things that could be done (at an acceptable price) to improve the accuracy of eyewitness identification evidence and reduce the frequency of false verdicts.

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Did the Government Prove that the 80 Year-Old Defendant Was Four Years Older than the Child Victim?

Oliver v. United States, 711 A.2d 70, 71 n.2 (D.C. App. 1998) (per curiam):

Mr. Oliver contends that the government failed to prove he was four years older than the children he was accused of enticing. He was eighty years old at the time of his sentencing, and the child he was convicted of enticing was nine years old at the time of trial. Viewing the evidence in the light most favorable to the government, as we must, not only was it obvious to the jurors that Mr. Oliver was at least four years older than the child, but also the evidence showed that he had been taking children on camping trips for approximately twenty years.

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Cf. demeanor of persons in courtroom but not testifying and "Are courtroom events or statements not formally introduced 'evidence'?"

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New Case Favoring Expert Testimony about Eyewitness Identification

See the as-yet unpublished opinion in Benn v. U.S. --- A.2d ----, 2009 WL 2778266 (D.C., Sept 3, 2009). The first paragraph of the opinion states:

Raymond Benn appeals his convictions, after a second jury trial, for the armed kidnapping of Charles "Sean" Williams on December 1, 1992. This appeal raises an issue we have grappled with before, the admission of expert testimony on the potential unreliability of eyewitnesses. For the first time, however, we do not affirm the trial court's exclusion of the proffered expert testimony. In excluding the expert testimony proffered by appellant, the trial court applied incorrect legal principles. It came dangerously close to employing a per se rule of exclusion and made a determination that contravened a holding of this court following the first trial. Moreover, the court did not follow the analysis established in Dyas v. United States, [FN2] which requires the trial court to consider three distinct factors in determining whether to admit expert testimony on the reliability of eyewitness identifications, and to do so in the context of the proffered expert testimony and evidence in the particular case. Because we cannot say that exclusion of the expert testimony proffered here was harmless, in a case that depended exclusively on the identification of eyewitnesses, we remand for further proceedings consistent with the analysis set forth in Dyas and this opinion.

I have not yet read the opinion but it looks to be an attempt at a comprehensive analysis of the general and much-mooted question of the admissibility of expert testimony about the reliability or unreliability of eyewitness identification.

The expert involved was Steven Penrod.

Stay tuned for possible further discussion of this opinion.

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Go to Spindle Law's Evidence Module for legal rules and principles governing expert evidence about eyewitness identification.

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Rape Case Now before Mixed Court in Japan

The new mixed court system in Japan -- a system in which six lay judges and three professional judges sit in each trial -- is becoming almost routine now. A case that includes rape charges is now being considered. The only issue before the court is punishment; the defendant has admitted guilt. See "First rape trial with lay judges begins," Japan Times Online (September 3, 2009).

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