Implementing the Lessons from Wrongful Convictions: An Empirical Analysis of Eyewitness Identification Reform Strategies

78 Pages Posted: 12 Jan 2016 Last revised: 19 Jul 2016

Keith A. Findley

University of Wisconsin Law School

Date Written: January 11, 2016

Abstract

Learning about the flaws in the criminal justice system that have produced wrongful convictions has progressed at a dramatic pace since the first innocent individuals were exonerated by postconviction DNA testing in 1989. Application of that knowledge to improving the criminal justice system, however, has lagged far behind the growth in knowledge. Likewise, while considerable scholarship has been devoted to identifying the factors that produce wrongful convictions, very little scholarly attention has been devoted to the processes through which knowledge about causes is translated into reform. Using eyewitness misidentification -- one of the leading contributors to wrongful convictions and the most thoroughly and scientifically studied of those contributors -- as the focus, this Article begins to fill that void by empirically analyzing a variety of approaches to eyewitness identification reform that have been attempted. This Article establishes a taxonomy of reform efforts ranging from top-down, command-and-control legislation, to entirely bottom-up, essentially laissez-faire approaches, to a hybrid that builds on emerging notions of democratic experimentalism -- a form of "new governance" -- to foster bottom-up experimentation by imposing obligations on police while giving them the freedom to develop their own locally tailored responses to the problem of eyewitness error. The bulk of the empirical analysis assesses the effects of the bottom-up experimentalist approaches to reform, as a contrast to command-and-control approaches. The analysis draws on previously collected national survey data as well as data from a few individual states, most prominently new data developed for this Article on the attempt to foster bottom-up eyewitness identification reform in Wisconsin. While more research is required before one can draw conclusions about which approach works best, the data suggest that the democratic experimentalist model shows promise for considerable, albeit imperfect, implementation of social-science-based eyewitness identification reforms.

Keywords: eyewitness identification, innocence, wrongful conviction, criminal justice reform, democratic experimentalism, new governance, innocence movement, double-blind sequential, policing

JEL Classification: K42

Suggested Citation

Findley, Keith A., Implementing the Lessons from Wrongful Convictions: An Empirical Analysis of Eyewitness Identification Reform Strategies (January 11, 2016). 81 Missouri Law Review 377, 2016; Univ. of Wisconsin Legal Studies Research Paper No. 1372. Available at SSRN: https://ssrn.com/abstract=2713963

Keith A. Findley (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States
608-262-4763 (Phone)
608-263-3380 (Fax)

HOME PAGE: http://www.law.wisc.edu/facstaff/biog.php?iID=269

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