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A Miscarriage of Justice in Massachusetts: Eyewitness Identification Procedures, Unrecorded Admissions, and a Comparison with English Law

24 Pages Posted: 29 Mar 2004  

Stanley Z. Fisher

Boston University School of Law

Ian K. McKenzie

Independent Forensic Psychologist


Like many other states, Massachusetts has recently known a number of acknowledged miscarriages of justice. This article examines one of them, the Marvin Mitchell case, in order to ask two questions: "What went wrong?" and "What systemic reforms might have prevented this injustice?" In seeking ideas for reform, we look to English law.

In 1990 Marvin Mitchell was convicted of rape in Massachusetts. Seven years later he became the first Massachusetts prisoner to be exonerated by DNA testing. In this article we describe the two key factors leading to Mitchell's wrongful conviction: faulty eyewitness identification procedures, and inadequate safeguards surrounding the recording and disclosure of Mitchell's allegedly incriminating statements to the police. We then ask how English prosecutors and courts would have responded to a police investigation conducted in the same way as Massachusetts police handled Mitchell's case. After describing the English safeguards applicable to eyewitness identification procedures and to the taking of suspects' statements to the police, we conclude that the investigatory flaws in Mitchell's case would have led to a radically different result in England: it is unlikely that Mitchell would even have been prosecuted, let alone convicted, for the crime with which he was charged.

In view of the fact that a number of Massachusetts miscarriages of justice have resulted from unreliable eyewitness identification procedures, and from eleventh-hour revelations of previously undisclosed incriminating statements by defendants, we argue that Massachusetts should consider adopting stronger safeguards to protect the innocent from police error or abuse. In doing so, the state should look to English experience for plausible models.

Keywords: miscarriage of justice, criminal law, eyewitness, identification procedures, police interrogation procedures, comparative law, English law, DNA exoneration

JEL Classification: K14, K4, K42

Suggested Citation

Fisher, Stanley Z. and McKenzie, Ian K., A Miscarriage of Justice in Massachusetts: Eyewitness Identification Procedures, Unrecorded Admissions, and a Comparison with English Law. Boston University Public Interest Law Journal, Forthcoming. Available at SSRN:

Stanley Fisher (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
(617) 353-3124 (Phone)

Ian McKenzie

Independent Forensic Psychologist ( email )

No Address Available

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