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MCNAMARA - FINAL 5/20/2009 5:17 PM 772 WISCONSIN LAW REVIEW criminal justice system, and have been the focus of reforms across the country. 47 These reforms have included avoiding multiple identification procedures with the same suspect; 48 instructing eyewitnesses prior to a lineup that the real culprit may or may not be present; 49 using doubleblind lineups in which the administrator is unaware of the identity of the suspect; 50 using sequential lineups, in which the participants are shown to the eyewitness one at a time, as opposed to simultaneous lineups, in which all participants are shown to the eyewitness at the same time; 51 and not giving feedback to eyewitnesses after they make a selection. 52 So far, reforms have focused largely on the identification itself, rather than procedures leading up to the identification, such as the development of suspects through the use of facial composites. 53 The factors that affect the reliability of eyewitness identifications are not always intuitive, and are often counterintuitive. 54 Studies show 47. See, e.g., Gary L. Wells, Eyewitness Identification: Systemic Reforms, 2006 WIS. L. REV. 615, 616 n.9, 634–35, 641–43 [hereinafter Wells, Systemic Reforms ] (describing eyewitness-identification reforms in California, Iowa, Massachusetts, Minnesota, New Jersey, North Carolina, Virginia, and Wisconsin); Gary L. Wells et al., From the Lab to the Police Station: A Successful Application of Eyewitness Research, 55 AM. PSYCHOLOGIST 581, 589–95 (2000) (describing the U.S. Department of Justice’s development of national guidelines for the collection and preservation of eyewitness evidence in response to the role of mistaken eyewitness identifications in wrongful convictions). 48. See OFFICE OF THE ATTORNEY GEN., WIS. DEP’T OF JUSTICE, MODEL POLICY AND PROCEDURE FOR EYEWITNESS IDENTIFICATION 6 (2005). Witnesses who may recognize a suspect they have seen in another procedure believe that it suggests the suspect is the culprit, or the witness may unconsciously recognize the suspect from the earlier procedure rather than the original event. Id. 49. Wells & Olson, supra note 41, at 286. Studies show that when witnesses are given this instruction there is a considerable reduction in mistaken identifications and little effect on accurate identifications. Id. 50. Id. at 289. Lineup administrators who are unaware of the identity of the suspect are unable to provide clues, whether consciously or not, to the eyewitness. Id. 51. Id. at 288. Sequential lineups discourage witnesses from engaging in relative judgment, a process in which people select the participant who most resembles their memory of the culprit. Id. at 286. Simultaneous lineups are particularly dangerous when the nonsuspect participants in the lineup, known as fillers, differ from the written description of the culprit because they can be easily eliminated, particularly if the suspect is the only participant with a poignant detail, such as a scar or facial hair. See Wells, Systemic Reforms, supra note 47, at 623–24. 52. See Wells, Systemic Reforms, supra note 47, at 621. Feedback can inflate a witness’s confidence in his or her selection. Id. 53. See Roberts, supra note 24. 54. Tanja Rapus Benton et al., Has Eyewitness Testimony Research Penetrated the American Legal System? A Synthesis of Case History, Juror Knowledge, and Expert Testimony, in 2 HANDBOOK OF EYEWITNESS PSYCHOLOGY: MEMORY FOR PEOPLE, supra note 36, at 453, 475–85 (concluding that many eyewitness issues are not common sense to jurors, despite widespread belief that they are); James
MCNAMARA - FINAL 5/20/2009 5:17 PM 2009:763 Eyewitness-Identification Procedures 773 that jurors, and to a lesser extent judges, tend to place undue reliance on the ability of eyewitnesses to accurately perceive and retain memories. 55 In particular, jurors tend to place considerable reliance on the confidence of an eyewitness, which has little or no correlation to accuracy. 56 Alternatively, jurors tend to underestimate the value of recent identification reforms, such as the administration of the lineup and selection of lineup fillers. 57 Even if experts testify about indicators of reliability, jurors may still believe eyewitness identifications over convincing alibis. 58 B. Due Process Applied: The Manson v. Brathwaite Standard Due-process concerns with reliability of eyewitness identifications began in the 1960s, when the rights of defendants gained considerable attention in the courts—years before DNA testing was available. 59 In United States v. Wade, 60 the Supreme Court first expressed concern M. Doyle, Legal Issues in Eyewitness Evidence, in PSYCHOLOGICAL METHODS IN CRIMINAL INVESTIGATION AND EVIDENCE, supra note 38, at 125, 127 (“[C]ommonsense principles, such as confidence means accuracy or stress enhances alertness [are questioned by research.]”). 55. Benton et al., supra note 54, at 484–87 (stating that laypeople have an underlying belief that eyewitnesses in general tend to be accurate, even when they are inaccurate). 56. Boyce et al., supra note 36, at 510; Brian R. Clifford & Graham Davies, Procedures for Obtaining Identification Evidence, in PSYCHOLOGICAL METHODS IN CRIMINAL INVESTIGATION AND EVIDENCE, supra note 38, at 47, 80 (noting that some studies have found that confidence is correlated to accuracy, although the correlation is low). 57. Boyce et al., supra note 36, at 514–15. This may be because the public is generally unaware of the research on the importance of police procedures on reducing misidentifications. Id. at 516. 58. See Woocher, supra note 35, at 970. Steven Avery, convicted of sexual assault, had sixteen alibi witnesses testify that he was pouring concrete when the crime occurred. Penny Beerntsen, Speech at the Benjamin N. Cardozo School of Law Symposium: Reforming Eyewitness Identification: Convicting the Guilty, Protecting the Innocent (Sept. 12–13, 2004), in 4 CARDOZO PUB. L. POL’Y & ETHICS J. 239, 245 (2006). The victim positively identified Avery, and he was sentenced to thirty-two years in prison. Id. Wilton Dedge, convicted of sexual assault, had six alibi witnesses testify that he was in another city at the time of the crime. AFTER INNOCENCE (Showtime Independent Films 2005). The victim positively identified Dedge, and he was sentenced to two concurrent life sentences. Id. Tim Durham, convicted of rape and robbery, had eleven upstanding alibi witnesses testify that he was participating with his father in a skeet-shooting contest 250 miles away in another state. SIMON, supra note 17, at 32. The victim positively identified Durham, and he was sentenced to 3220 years in prison. Id. Avery, Dedge, and Durham were all exonerated by DNA testing. Innocenceproject.org, supra note 17. 59. See Doyle, supra note 54, at 133. 60. 388 U.S. 218 (1967).
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