Eyewitness Identification and the Problematics of Blackstonian Reform of the Criminal Law

64 Pages Posted: 9 Apr 2019 Last revised: 25 Jun 2019

See all articles by Lawrence Rosenthal

Lawrence Rosenthal

Chapman University, The Dale E. Fowler School of Law

Date Written: March 30, 2019


A substantial number of wrongful convictions are attributable to inaccurate identifications of perpetrators, stemming from the difficulties that eyewitnesses can experience in accurately perceiving and later recalling faces. Many have argued that courts should employ prophylactic rules to prevent the admission of unreliable identification evidence. Yet, most jurisdictions continue to follow the deferential approach to the admission of eyewitness identification evidence taken by the United States Supreme Court. Commentators have universally condemned this state of affairs.

This article offers a departure from the existing commentary by taking seriously the possibility that courts have good reason for their reluctance to embrace rules excluding evidence thought to present unduly high risks of convicting the innocent.

The case for reform is rooted in Blackstone’s admonition that the law should be wary of admitting evidence of guilt, preferring the acquittal of the guilty to the conviction of the innocent. It is difficult, however, to construct a Blackstonian case for exclusion of evidence thought unduly likely to produce wrongful convictions. Given our limited knowledge about the error rates that inhere in most types of evidence, Blackstonian reform has no ascertainable stopping point; excluding evidence that poses what is thought to be an undue risk of wrongful conviction could result in the exclusion of virtually all evidence of guilt. To illustrate the point, this article considers an issue on which the lower courts have split—the role of corroborative evidence in assessing the admissibility of an eyewitness’s identification. Although Blackstonian prophylactic rules reject consideration of corroborative evidence, the reliability of most evidence cannot be assessed in isolation. Reliability can usually be assessed only in the context of all pertinent evidence. Thus, totality-of-the-circumstances tests, such as the approach reflected in the Supreme Court’s decisions on eyewitness identification, are about the best we can do. Prophylactic evidentiary rules designed to reduce rates of wrongful conviction turn out to be deeply problematic.

Keywords: Eyewitness, Identification, Blackstone Ratio, Manson v. Brathwaite

Suggested Citation

Rosenthal, Lawrence, Eyewitness Identification and the Problematics of Blackstonian Reform of the Criminal Law (March 30, 2019). Journal of Criminal Law and Criminology, Vol. 110, 2020, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3362968 or http://dx.doi.org/10.2139/ssrn.3362968

Lawrence Rosenthal (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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