Reforming Eyewitness Identification Law and Practices to Protect the Innocent

Abstract

This article discusses varying eyewitness identification reform proposals that may help to finally achieve a greater level of reliability in this critical phase of the criminal justice process. The author concludes a comprehensive reform that includes tightening exclusionary rules, along with (minimally) corroboration requirements for death-sentencing, and more appropriately, for convictions in capital and non-capital cases, with a concomitant loosening of standards for relief on appeal, hold the most promise.

The article addresses adopting best practices; assuring compliance by means of exclusion; admitting expert testimony and educating juries; instructing on the vagaries of eyewitness identification; requiring corroboration with independent and reliable evidence; and redressing unsafe verdicts. A 2002 article advocated a return to the Stovall v. Denno two-stage exclusionary rule, at least in capital cases, and beyond that, proposed a bar on execution if a suggestive identification procedure occurred. This article returns to that view, and addresses additional proposals, including those that would modify the analysis required for exclusion consistent with social science findings; require corroboration in eyewitness identification and general cases; require reliable forensic or other evidence for capital sentencing; and repeal the death penalty to assure against irrevocable errors.