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MCNAMARA - FINAL 5/20/2009 5:17 PM 774 WISCONSIN LAW REVIEW with reliability of eyewitness identifications, noting that “identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” 61 The Court went on to acknowledge that one of the causes of mistaken identifications is “the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial investigation.” 62 Defendants have traditionally relied on crossexamination to challenge eyewitnesses and protect themselves against the risks of mistaken identifications. 63 Although cross-examination is a very important feature of a trial, it alone does not assure accuracy and reliability. 64 On the basis of these concerns, the Supreme Court provided preventative rules to minimize the risk of mistaken eyewitness identifications based on guarantees of due process provided by the Fifth and Fourteenth Amendments. 65 As set forth in Brathwaite, suggestive identification procedures violate a defendant’s guarantee of due process when there is a substantial likelihood of irreparable misidentification. 66 The remedy is the exclusion of the evidence at trial. 67 This protection embraces all forms of identification procedures, including show-ups, lineups (including both photographic and live), and in-court identifications, regardless when they occur. 68 In balancing the protection of suspects with the administration of justice, Brathwaite established that identifications arising from suggestive procedures are still admissible if they are reliable in light of 61. Id. at 228. 62. Id. 63. See Doyle, supra note 54, at 127. 64. Wade, 388 U.S. at 235. 65. See, e.g., Neil v. Biggers, 409 U.S. 188 (1972) (concluding that unnecessarily suggestive identifications violate due process unless found to be reliable under the totality of all the circumstances); Simmons v. United States, 390 U.S. 377 (1968) (holding that convictions based on in-court identifications must be set aside if based on impermissibly suggestive out-of-court procedures that give rise to a very substantial likelihood of irreparable misidentification); Stovall v. Denno, 388 U.S. 293 (1967) (finding that unnecessarily suggestive eyewitness procedures conducive to irreparable mistaken identification violate due process of law). The protections in Wade were based on the Sixth Amendment right to counsel. 388 U.S. at 224. A later ruling holding that the Sixth Amendment applies only to postindictment procedures, and not to those occurring before formal charging, Kirby v. Illinois, 406 U.S. 682 (1972), leaves many identification procedures subject only to due-process protections. See Doyle, supra note 54, at 133–34. Almost all facial composites, show-ups, and photographic and live lineups are conducted before the defendant is formally charged, leaving them without the protection of the Sixth Amendment. Id. 66. See 432 U.S. 98, 106 (1977). 67. Id. at 110. 68. Doyle, supra note 54, at 135.
MCNAMARA - FINAL 5/20/2009 5:17 PM 2009:763 Eyewitness-Identification Procedures 775 the totality of the circumstances. 69 The Supreme Court reasoned that this approach would still deter law enforcement from using suggestive procedures out of fear that identifications might be excluded as unreliable. 70 Additionally, the Court also emphasized the importance of admitting reliable evidence that might have otherwise been excluded to both protect the innocent from being wrongfully convicted and keeping the guilty from going free. 71 Courts and scholars are beginning to challenge Brathwaite; however, the criticism is largely directed toward the reliability test, and not the suggestiveness standard. 72 Most criticism directed toward the suggestiveness standard emphasizes only that it has not been sufficiently applied, or that the standard needs to be strengthened to protect the original concern of providing defendants with a fair trial when confronted with eyewitness identifications. 73 69. Brathwaite, 432 U.S. at 114. The factors used to determine reliability include the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of prior descriptions, the witness’s level of certainty, and the time between the crime and the identification. Id. These factors must be weighed against the suggestiveness of the identification. Id. 70. Id. at 112. 71. Id. 72. The challenges to Brathwaite are arising in light of the number of wrongful convictions stemming from misidentifications. See, e.g., Commonwealth v. Johnson, 650 N.E.2d 1257, 1261 (Mass. 1995); State v. Dubose, 2005 WI 126, 31, 286 Wis. 2d 143, 699 N.W.2d 582; Timothy P. O’Toole & Giovanna Shay, Manson v. Brathwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to Eyewitness Identification Procedures, 41 VAL. U. L. REV. 109 (2006); Calvin TerBeek, A Call for Precedential Heads: Why the Supreme Court’s Eyewitness Identification Jurisprudence Is Anachronistic and Out-of-Step with the Empirical Reality, 31 LAW & PSYCHOL. REV. 21, 22 (2007); Ruth Yacona, Manson v. Brathwaite: The Supreme Court’s Misunderstanding of Eyewitness Identification, 39 J. MARSHALL L. REV. 539, 541–42 (2006). The reliability test in particular is being challenged in light of socialscience research findings that the reliability factors are not actually indicative of whether or not an identification is reliable. See Gary L. Wells & Deah S. Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme Court’s Reliability Test in Light of Eyewitness Science: 30 Years Later, 33 LAW & HUM. BEHAV. 1, 9 (2009). This Comment argues that even if the reliability test were eliminated, thus allowing sufficiently suggestive procedures to be inadmissible, Brathwaite’s narrow focus on lineup procedures would still not adequately protect suspects from misidentifications if facial composites played a role in the identifications. 73. See Doyle, supra note 54, at 136–38. Brathwaite has never been expanded beyond procedures of actual identifications to include procedures involving the use of facial composites, which lead to identifications. Applying Brathwaite to the use of facial composites would help to strengthen the standard by providing more protection against unreliable identifications.
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