Monday, July 23, 2012

Eyewitness Identification

There have been interesting developments in the legal treatment of eyewitness identification evidence and I hope to discuss them here shortly. In the meantime keep several things in mind:

1. Although bad news is more striking than good news, keep in mind that eyewitness identifications are sometimes correct. In fancier parlance: the frequency of "hits" as well as of false positives is germane to the question of the appropriate legal treatment of eyewitness identifications.

2. A generation or two ago Dean McCormick said that a brick is not a wall. As far as I know, this remains true. Hence, to make a case for exclusion of eyewitness identification evidence in a specific case it is not sufficient to say or show that the challenged evidence has little probative value. There may be other evidence in the case and the other evidence may have probative value; and when the eyewitness identification evidence is added to the other evidence in the case about identity, all of the evidence taken together it may amount to quite a lot.

3. Some of the ailments of the criminal process may be traced to the usual lack of financial resources of the defense. One question to consider -- a difficult question -- is whether and to what extent the flaws generated by this lack of resources can be compensated for by rules of evidence requiring exclusion of evidence at trial or other trial remedies such as jury instructions.

4. We generally do not identify people only by their facial appearance. We also rely on matters such as gait.

5. Is it possible to empirically verify all of the factors that affect the accuracy of eyewitness identifications and the magnitude of the effect of such factors? If not, so what?  What follows?


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