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Eyewitness testimony is the swayer of juries, the bane of criminal defense attorneys and, for prosecutors, often the key to convictions. But after scores of wrongful convictions based on mistaken identity and studies showing the ease with which witness memories can be manipulated, the accuracy of eyewitness testimony is under attack as never before. On May 8, the influential New York Court of Appeals, the state’s highest court, lent its heft to the debate, joining the federal courts and a handful of other states in enabling judges to allow testimony by expert witnesses about why eyewitnesses can be unreliable. “The court is not operating in a vacuum,” says Laurence Marshall, legal director of the Center on Wrongful Convictions at Northwestern University School of Law. “They recognize there are some serious problems and that there are reforms that need to be done.” Historically, defense counsel have assailed the fairness of police lineups and photo arrays, saying faulty procedures prompt witnesses to choose the closest candidate when the actual criminal isn’t present. On the other hand, prosecutors and judges assail the “science” of witness credibility, saying it’s not generally accepted and has no place in the courtroom. “The science is flawed,” says Casper, Wyo., District Attorney Kevin P. Meenan, president-elect of the National District Attorneys Association. “There are an equal number of experts out there who will challenge it.” Until recently, most courts barred such testimony, saying it intruded on the realm of the jury. But the Center on Wrongful Convictions issued a report on May 2 saying that of 86 cases of legally exonerated death row inmates, eyewitness testimony played a role in the convictions of 46 and constituted the entire prosecution case in 33. In states that do not allow scientific testimony on eyewitness reliability, defense attorneys are limited to cross-examination and closing arguments to raise doubts about witness credibility, and then they can only skirt the scientific issues, Marshall notes. “Juries think the most important factor in assessing witness credibility is the witness’s level of certainty,” he says, pointing to studies of witness credibility. “But we now know that the amount of certainty is a function of witness personality, not their credibility.” EYEWITNESSES AND DNA Some defense lawyers view the New York ruling as especially significant in light of the recent use of DNA evidence to exonerate a number of people convicted of crimes. “DNA presents a window into the fallibility of the system, which is manifested in many shortcomings, including mistaken eyewitness testimony,” says H. Scott Wallace, director of defender legal services for the National Legal Aid and Defender Association. Rulings such as New York’s are “like the other shoe dropping,” the first solid reform to help avoid wrongful convictions, he says. “This ruling is immensely important in confirming the major prong of the fallibility of the system.” Judge Victoria A. Graffeo wrote for the New York court in People v. Lee that “courts should be wary not to exclude such testimony merely because, to some degree, it invades the jury’s province.” But Wallace says that the ruling won’t mean a flood of business for forensic psychologists just yet. As in other states that allow such testimony, New York judges are obligated only to consider it, not to accept it automatically. In a 1998 article in the Cumberland Law Review, U.S. Magistrate Judge Robert P. Murrian wrote that rather than declare a witness unreliable, forensic psychologists may testify “regarding factors surrounding the identification which may have affected the eyewitness’ perception in making his identification.” Such factors include the similarity between stand-ins and a suspect in a police photo array or lineup, questions asked of the witness after the crime, the suspect’s race, the amount of time between incident and identification, and even whether a gun was involved in the crime. Scientists say these factors can alter witness memory. In the New York case, which upheld a conviction because the trial judge considered allowing expert testimony, eight months had passed between the night Anthony Lee stole a car at gunpoint and the day that the owner picked Lee out of a photo array. Prosecutor Meenan remains skeptical, though he concedes that such expert testimony should be allowed in extreme cases. “This has been raised by defense counsel for years,” he says. “The defense attorney is going to have to first present a scientific basis that justifies the credibility of their expert. Even in the states that allow it, the attempt is usually unsuccessful because they can’t lay the necessary foundation.” Meenan says that few experts have credentials that prosecutors wouldn’t challenge. Wallace adds that, even with an expert acceptable to all sides, judges may not be willing to approve the funds for indigent defense lawyers to pay them. The initial defense challenge to witness credibility “can’t just be speculative,” says Wallace. “Judges will probably be very circumspect about [questioning] the reliability of the eyewitness testimony.” But Marshall is already thinking of the next step. To protect innocent defendants from arrest and conviction, he says, police should be compelled to employ “sequential” lineups, showing witnesses one photo or one person at a time, with no knowledge of how many they will see. Since many witnesses choose the person who looks “closest” when faced with a group, sequential lineups, Marshall says, will result in fewer wrongful identifications.

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