Making Eyewitness Testimony More Reliable

      James Womble brought in the new year in 2003 by drinking and smoking crack cocaine for several hours with his girlfriend and a friend, Rodney Harper. In the early morning hours, an acquaintance, George Clark, forced his way into the apartment along with another man to collect money that Harper owed him.
      Clark and Harper argued in a back room while the stranger allegedly held Womble at gunpoint in a dimly lit hallway. From the hallway, Womble heard the gunshot that left his friend Harper dead 10 days later. Clark and the stranger left after Clark warned Womble, “Don’t rat me out.”
      Womble eventually led investigators to Clark, who named Larry Henderson as his accomplice. Womble identified Henderson from an array of eight photos, but only after the investigating officer on the case overcame Womble’s professed uncertainty by telling him, “Just do what you have to do, and we’ll be out of here.”
      At trial — in a scene reminiscent of courtroom dramas both real and fictional — Womble was unshakable in identifying Henderson as his assailant. But in a landmark decision last week [Aug. 24], the New Jersey Supreme Court used Womble’s doubt-strewn identification to order sweeping new changes in the state’s court system to control the use of often unreliable eyewitness testimony.
      The New Jersey court’s unanimous ruling in State v. Henderson will make it easier for defendants to challenge and possibly suppress eyewitness testimony as unreliable. In addition, it will require stronger instructions to jurors about the possible unreliability of eyewitness testimony at the end of or, if needed, during trial.
      Eyewitness testimony is as powerful as it is — in the Supreme Court’s phrasing — “notoriously unreliable.” In one recent experiment, 500 store clerks asked to identify a customer from an array of photos within two days of having seen him were almost as likely to make an incorrect as a correct identification. And twice as many clerks made a wrong identification as those who acknowledged uncertainty.
      The doubts about eyewitness testimony indicated by a host of similar behavioral experiments are confirmed in real life in the U.S. justice system. Out of 250 wrongful convictions uncovered through DNA evidence, 190 resulted from what was belatedly recognized as faulty eyewitness testimony, according to a compilation by Brandon Garrett, a law professor at the University of Virginia, in his book Convicting the Innocent. “It is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country,” Chief Justice Stuart Rabner wrote in the New Jersey ruling last week.
      The U.S. Supreme Court has adopted limited safeguards against eyewitness error. The court in 1967 required counsel to be present at lineups conducted after a defendant’s indictment, but five years later all but nullified the decision by refusing to require counsel at the far more frequent pre-indictment lineups (United States v. Wade, Kirby v. Illinois). In 1977, the court refused to automatically bar identifications tainted by “suggestive” procedures.
      The court in Manson v. Brathwaite ruled that defendants must be allowed to challenge identifications from police lineups, “showups,” or photo arrays. But the justices required suppression of an identification only if the defendant could show “a very substantial likelihood of irreparable misidentification.”
      The New Jersey court’s ruling leaves that demanding standard in place, but gives defendants a better chance to meet it. As applied, the Supreme Court’s rulings require courts to consider whether police procedures were “impermissibly suggestive” but not to look at other circumstances that cast doubt on an identification. And testimony can be used if the witness appears to be reliable and sticks to an identification.
      As the New Jersey court points out, that approach effectively encourages police misconduct. Suggestive procedures such as the officer’s nudge to Womble in Henderson’s case will often make a witness certain of an identification that, in reality, is riddled with doubt. “Courts are encouraged to admit identifications,” Rabner explained, “that have been tainted by the very suggestive practices the test aims to deter.”
      The New Jersey court’s decision will undoubtedly be viewed by many as judicial activism. Rabner explained the decision as an exercise of the court’s supervisory authority over rules of evidence in the state court system.
      To its credit, New Jersey has rules aimed at limiting suggestive police procedures. Womble was given written instructions free of any hint or pressure to make an identification. The state attorney general’s office has guidelines that require identification procedures to be administered by someone other than the investigating officer. As in Henderson’s case, the guidelines are sometimes violated.
      Henderson is now out on parole after serving six years of a 15-year sentence for his conviction on a reduced charge of reckless manslaughter. The ruling gives him a new chance to suppress Womble’s identification and possibly overturn the conviction. The prosecution’s only other evidence was Henderson’s own statement acknowledging his presence but denying any participation in the shooting.
      The U.S. Supreme Court will also consider the use of eyewitness testimony in a case, Perry v. New Hampshire, set for argument in November. But the issue is narrow: whether the “impermissibly suggestive” rule applies to an identification made by a witness before the police investigation. And the Roberts Court majority is hardly inclined to establish safeguards to protect defendants’ rights. But all the justices ought to have an interest in ensuring the reliability of testimony used in criminal cases. That interest is less than well served by the current rules on eyewitness identifications.