Believing Without Seeing: The Problem of Eyewitness Misidentification

The Loyola University New Orleans Journal of Public Interest Law Volume 20, Fall 2018, Number 1

27 Pages Posted: 15 May 2020

See all articles by Jens Omdal

Jens Omdal

Loyola University New Orleans College of Law

Date Written: Fall 2018

Abstract

Eyewitness testimony is the primary source of evidence in over 50,000 criminal trials every year, and eyewitness misidentification is the leading cause of wrongful convictions. Eyewitness error has played a substantial role in over 70% of overturned convictions. My comment discusses the intricate malfunctions of eyewitness testimony and proposes a potential solution by incorporating an impartial third party attorney into the criminal justice system to act as a check upon the witness, questioning his confidence and his memory before he ever gets to the witness stand. The hope is that by doing so, the eyewitnesses with insecure testimonies, and those that would have made a misidentification that would lead to a wrongful conviction would be filtered out early on.

The Supreme Court in Neil v. Biggers, laid out a five-factor analysis for determining eyewitness reliability in an effort to solve the misidentification problem. These factors have been heavily scrutinized since their introduction, and it is query whether they are a reliable determinant. Other reforms could be implemented like questioning witnesses via blind administration where the officer conducting the interview is unaware who the suspect is, preventing bias. Furthermore, experts should be permitted to testify to the shortcoming of eyewitness memory. The courts are reluctant to incorporate many of these proposals, instead choosing to rely upon traditional safeguards like cross-examination. By embracing these modifications the nightmares of wrongful convictions can be put to rest once and for all.

Keywords: Criminal law, misidentification, Biggers, eyewitness misidentification, law review, journal

JEL Classification: K14, K19, K39, K40, K41, K42, K49, K

Suggested Citation

Omdal, Jens, Believing Without Seeing: The Problem of Eyewitness Misidentification (Fall 2018). The Loyola University New Orleans Journal of Public Interest Law Volume 20, Fall 2018, Number 1. Available at SSRN: https://ssrn.com/abstract=3581307

Jens Omdal (Contact Author)

Loyola University New Orleans College of Law ( email )

7214 St. Charles Ave., Box 901
Campus Box 901
New Orleans, LA 70118
United States

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