Decisions like LeGrand (PDF), and the Third Circuit’s superb decision last summer in United States v. Brownlee (PDF), 454 F.3d 131 (3d Cir. 2006), suggest that courts are starting to warm up to the idea that the social science research can help limit the role mistaken eyewitness testimony has played in creating wrongful convictions. I think it’s likely that these cases will hasten the day when expert testimony of this sort is routine in cases that rely primarily on eyewitness testimony. I also think this is important: For too long, the judicial system has virtually ignored this important research. Courts ignore science at their peril.
But it is also not enough. There are not enough experts, there never will be enough experts, and expert testimony will often be limited even in cases where it does occur. And even if expert testimony perfectly assesses the identification and its reliability (or unreliability), that will still not always be enough to counteract a witness who genuinely but mistakenly looks across the courtroom and says: “That’s him! I’ll never forget that face as long as I live.”
So where else do we go from here? Quite apart from expert testimony, we need to improve ways of selecting, educating and instructing jurors throughout the trial. The legal system also can reform itself in other ways. Gary Wells, for example, has suggested that the legal system should prevent “lineup jeopardy” (the risk of mistakenly being accused of a crime simply by virtue of being placed in a lineup) by limiting the ability of police to place someone in a lineup or photo spread — through a requirement that police independently make some showing of individualized suspicion probable cause (PDF) before an identification procedure occurs.
But probably the most important piece of the reform puzzle will occur outside the courtroom, since it involves preventing eyewitness evidence from becoming unnecessarily “tainted” BEFORE it makes its way into court. That is, by adopting police procedures that prevent misidentifications from occurring at all, rather than trying to blunt or diminish their effect afterwards.
The legal system can do a lot to shape the procedures police use to handle eyewitness evidence, and we now know a lot about which police identification procedures work and which do not. A lot of what we know has even been compiled into guidelines (PDF) by the Department of Justice. Some police departments will choose to follow them on their own, and will provide sufficient training so that officers can professionally handle eyewitness evidence in every case (see, e.g., Hennepin County, Minnesota, and Northampton, Massachusetts (PDF)). The more police that adopt this sort of reform on their own the better because other solutions are more complicated and will take more time.
But inevitably some jurisdictions will lag behind and resist. In those jurisdictions, some form of mandate will be required. Some states will go the legislative route, as West Virginia, Maryland, Virginia and others have done. Others will go the executive branch route, as New Jersey has done. And still other states will require the judicial route, with courts forcing police to change by excluding eyewitness evidence infected by shoddy and outdated police practices.
Some have said that reforms like these cannot be legislated or directed by courts; police need to want to change their conduct before reforms can take hold. Many reform-minded police officers would say otherwise. A good example has arisen in the debate involving recorded interrogations. Many police departments and officers vigorously opposed recording interrogations, usually on the ground that it would deter statements. Our police in Washington D.C. said the same thing when they fought recording legislation. But now that the results are in, police I have spoken with (including police here) love recording interrogations because it produces evidence they can be confident in — confident in their own minds that any confession is reliable and confident that the evidence will hold up to any challenge in court when scrutinized by judges, lawyers and jurors.
The same thing will eventually happen with eyewitness procedures — once the bias in favor the status quo is broken, police will see how reformed eyewitness procedures are just another example of how simple, smart police reform can make the system tougher, smarter and fairer for everyone involved.
That’s where we’re headed. It’s just a matter of time.