The Unreliable Case Against the Reliability of Eyewitness Identifications: A Response to Judge Alex Kozinski
16 Pages Posted: 2 Nov 2015 Last revised: 6 Oct 2016
Date Written: October 31, 2015
Judge Alex Kozinski’s recent critique of our criminal justice system begins by positing that jurors believe that eyewitnesses are highly reliable, and arguing that this belief is “undermined” by social scientific research showing that eyewitnesses are, in fact, “highly unreliable.” Hon. Alex Kozinski, Criminal Law 2.0, 44 Geo. L.J. Ann. Rev. Crim. Proc. iii (2015). In so doing, Judge Kozinski joins the defense bar, the Innocence Project, many social scientists and legal academics, the media, and an increasing number of courts in treating claims that juries pervasively accept unreliable eyewitness evidence as if they are firmly grounded in the rigorous testing of social science. To the contrary, this essay argues that (1) there is no reliable evidence that jurors routinely over-rely on eyewitness evidence; (2) there is no reliable basis in social science for generalizations about eyewitness identifications being unreliable; (3) eyewitness identification scholarship is often distorted by agenda-driven advocacy; (4) exonerations do not show that eyewitnesses are generally unreliable; (5) courts have uncritically adopted measures of questionable benefit regarding eyewitness evidence; and (6) reliable social science does not support the adoption of the “reforms” suggested by Judge Kozinski.
Keywords: criminal law, evidence, eyewitness identification
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