Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
Soon, the single greatest cause of the conviction of the innocent — mistaken eyewitness identification — will be significantly redressed by a series of historic reforms: We will see photo arrays and lineups conducted by a blinded examiner (the person running the procedure doesn’t know the identity of the suspect); proper admonitions to witnesses that the real perpetrator may not be present; proper selection of fillers so they meet the description of the perpetrator, not the suspect; confidence statements from witnesses at the time of identification in their own words; and sequential presentation at identification procedures with an adequate number of fillers (at least five). Based on strong scientific proof that these reforms substantially reduce error and increase the capacity of police to find the real assailant, courts, legislatures, and prosecutors will adopt them because it’s just good law enforcement. But they will also act because there is a constitutional imperative at work: The heart of the Supreme Court’s due process jurisprudence in this area is to prohibit systemic practices that unnecessarily increase error.
These reforms will move on three different tracks simultaneously. On one track, state and federal courts will reverse and revise Manson v. Braithwaite, instructing juries that failure to follow procedures that demonstrably reduce error must be held against the prosecution. Similarly, courts at pre-trial hearings will consider expert testimony and assess the taint from improper suggestiveness in light of new scientific evidence. On a second track, where trains are already in motion, police and prosecutors will voluntarily implement these reforms, following the lead of New Jersey, North Carolina, Minneapolis, Boston, Santa Clara (Calif.), and Northhampton (Mass.). And finally, state legislatures and Congress will follow the lead of Illinois, as well as suggestions from the American Bar Association, and enact bills funding pilot projects, research, and training.
NACDL — in partnership with the National Legal Aid and Defender Association (NLADA), the Innocence Project, social scientists, and police and prosecutors across the country — has a crucial part to play in making sure eyewitness reform proceeds symbiotically on all these tracks, forming a true national movement for justice. At our recent seminar in Atlanta on October 16, working together with NLADA, we not only presented a faculty of the leading social science experts and lawyers in the area of eyewitness evidence, but put them together with selected leaders in the public defender community and the private bar. Attendees left with an understanding of how to build collaborations and strengthen alliances to promote reform efforts in their states. Hundreds of lawyers from across the country, those who work cases in the trenches, were trained on the latest scientific developments as well as new techniques and methods for pretrial investigation, discovery, cross-examination at admissibility hearings and trials, use of defense experts, unique motions in limine, new voir dire, and constitutional challenges to Manson.
But you did not have to be there to take part in this burgeoning movement. NACDL and NLADA are collaborating to establish Web pages where our respective members can get transcripts and briefs to help in these eyewitness identification reform efforts. In addition, the Innocence Project, which in the course of reviewing the nation’s 153 post-conviction DNA exonerations, found that the vast majority of those wrongful convictions involved mistaken eyewitness identifications, will soon be posting eyewitness ID resources and articles on its Web site.
Finally, please keep an eye out for the March edition of The Champion, which will be dedicated mostly to eyewitness identification. Not only will you hear from the nation’s leading legal and scientific experts on the issue, but you’ll find the materials presented at our Atlanta meeting and much more. The trains are moving out of the station. Get aboard. n
