Convicting with Our Eyes Open: Regulation of Eyewitness Identification in the United States and England and Wales

48 Pages Posted: 30 Mar 2015 Last revised: 19 Jan 2016

See all articles by Marco Wong

Marco Wong

Columbia Journal of Transnational Law; Columbia University, Law School, Students

Date Written: March 27, 2015

Abstract

This Note considers whether the United States Supreme Court’s current standard for regulating eyewitness identification evidence is satisfactory. Many years of research have shown that this type of evidence can be dangerous to our criminal justice system by contributing to mistaken convictions. Yet because eyewitness evidence can be probative and is readily available, we tolerate its continued use so long as safeguards are in place to minimize risk of error. This Note looks at what these safeguards entail, and argues that what we presently have is grossly inadequate.

Part I compares the Supreme Court’s approach to evaluating eyewitness evidence with that of the United Kingdom, and finds that the former is significantly less stringent. Part II examines how states have responded to the federal standard, discovering that a growing number has departed, some more subtly than others, from the federal benchmark. Even among those states that have devotedly followed Supreme Court precedent, a handful has expressed deep concern with the federal standard. Part III suggests that the Supreme Court should, in light of the British experience, post-Manson case law, and psychological research, revise the federal standard. The court should replace its current standard with a new standard, taking the form of a penalty default, that asks two independent and equally weighted questions: (1) do conditions surrounding the observation make the observation of the identification unreliable; and (2) were suggestive procedures used in the identification process? If the answer to either question is “yes”, then the resultant evidence should be excluded.

Suggested Citation

Wong, Marco, Convicting with Our Eyes Open: Regulation of Eyewitness Identification in the United States and England and Wales (March 27, 2015). Columbia Journal of Transnational Law, Vol. 54, 2015, Available at SSRN: https://ssrn.com/abstract=2586217

Marco Wong (Contact Author)

Columbia Journal of Transnational Law ( email )

435 West 116th Street
New York, NY 10027
United States

Columbia University, Law School, Students ( email )

435 West 116th Street
New York, NY 10025
United States

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