Let's Go to the Tape: Science-Based Standards for Non-Eyewitness Identifications in a Surveillance World

Abstract

Eyewitnesses to an event have always been able to testify about their memory for that event. This Article concerns a less obvious phenomenon: “non-eyewitnesses,” which we define as people who did not actually perceive an event but testify about what they think a video shows about who the video depicts. Despite increased awareness of the dangers of eyewitness identifications and a growing reliance on scientific research to ensure that only reliable eyewitness identifications are admitted, non-eyewitness identifications have been treated as a completely unrelated issue, with lax standards of admissibility untouched by scientific research. This issue is particularly pressing with the proliferation of smartphones and surveillance cameras, which has led to the increased availability of video footage of crimes. Thus, non-eyewitnesses are regularly identifying people from surveillance footage in court with little procedural or substantive protections to ensure the accuracy of their identifications. Such non-eyewitnesses range from a police officer who has arrested the defendant before, to the defendant’s mother, to a person who has met the defendant only once.

This Article illustrates the problems with how these non-eyewitness identifications are being handled by courts and proposes a solution. We first review the evolution of the law governing eyewitness identifications, demonstrating the increasing embrace of scientific research into many courts’ jurisprudence. Then we review the scientific research relevant to the accuracy of non-eyewitness identifications and compare that to the jurisprudence around non-eyewitness identifications, demonstrating that the science and the law do not correspond at all. We next propose an innovative solution: a two-prong framework for assessing the accuracy of non-eyewitness identifications. In the first prong, we consider, first and foremost, the quality of the available video. Only if the available video is of adequate quality should the assessment advance to the second prong, in which we consider the plethora of situational characteristics that affect the accuracy of identifications by non-eyewitnesses. This test incorporates critical scientific findings including: (1) the quality of the image is the most important determinant of the reliability of an identification; (2) familiarity varies along a continuum; (3) expectations and outside information can contaminate non-eyewitness identifications; and (4) cross-racial non-eyewitness identifications are less accurate, just as cross-racial eyewitness identifications are. We end by applying this test to admissibility decisions and jury instructions in a variety of situations in which non-eyewitness identifications are frequently presented to courts

Note: Reprinted from Criminal Law Bulletin, 59(1), 1-59 with permission of Thomson Reuters. © 2023 Thomson Reuters/West. Further use without the permission of Thomson Reuters is prohibited.

Keywords: law, identification, eyewitness, surveillance, memory, misidentification