New Jersey’s Supreme Court recently issued a landmark ruling reforming the state’s approach to assessing the reliability of eyewitness evidence. Similar reforms in other jurisdictions could save countless defendants from wrongful conviction; the Innocence Project reports that eyewitness misidentification contributed to the convictions of more than 75% of the 273 prisoners now proved innocent by DNA, and many other innocents certainly languish in prison for crimes in which DNA evidence has not been produced, collected or preserved.
But unless the U.S. Supreme Court updates the constitutional standard for evaluating eyewitness evidence, other jurisdictions will certainly continue to follow the outdated framework the Court adopted 34 years ago in Manson v. Brathwaite. In Manson, the Court held that in cases involving unnecessarily suggestive identification procedures, judges determining the admissibility of contested eyewitness evidence should weigh the corrupting effect of the flawed procedure against five reliability factors: the opportunity of the witness to view the perpetrator at the time of the crime; the witness’s degree of attention; the accuracy of the witness’s prior description of the criminal; the witness’s level of certainty in his or her identification; and the time between the crime and the confrontation. But the Supreme Court has never provided guidance on the range of identification practices that increase the odds of misidentification, and courts assessing Manson‘s reliability factors regularly do so in ways that conflict with what we now know about the way human memory operates.
