dada_floridamisidentification_final - UDC Law Review

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confrontations. The factors to be considered are set out in Biggers. Theseinclude the opportunity of the witness to view the criminal at the time ofthe crime, the witness’ degree of attention, the accuracy of his priordescription of the criminal, the level of certainty demonstrated at theconfrontation, and the time between the crime and the confrontation.Against these factors is to be weighed the corrupting effect of thesuggestive identification itself. 69In Brathwaite, the Supreme Court <strong>final</strong>ly clarified a test for the courts to apply inweighing identification evidence. It has been at least thirty years since the decision andthere is some indication that the test might not always be effective on a state level. “Yetonly a handful of state supreme courts have endeavored to fill the void, doing so in avariety of ways, most of which constitute minor improvements to the Supreme Court’stest.” 70 This gap in the due process standard, at statewide levels, can be attributed to lackof legislation directed at the reliability of eyewitness identification procedures.ii. Issues of the Two-Prong AnalysisThe problems with the federal due process standard of identification evidence rest inboth prongs of the analysis. Initially, the courts must weigh police suggestiveness. 71 Ifthere is no indication of police suggestion, the courts will not apply the Due Process testto identification procedures. 72 The test does account for system variables (such as policesuggestion and post event information), however, the test does account for estimatorvariables. 73 Estimator variables are “factors inherent to the eyewitness (age, lighting,weapon focus, cross race bias, etc.).” 74 Thus, if the witness misidentifies based estimatorvariables, it will not qualify under the Due Process standard.Moreover, the first prong is satisfied, the evidence can still be admitted if it passes thesecond “reliability” prong based on the Biggers’ five factors. The problem with admittingevidence obtained through suggestive practices is that it can “produce falseidentifications, it can distort a person’s memory of the events, and it can artificiallyheighten the witness’s degree of confidence in the identification.” 75The second factor of the dual analysis is heavily determinative on the reliability of theeyewitness’ memory. The Supreme Court declared that courts should look at the “totalityof the circumstances” also known as the five factors determined in Neil v. Biggers. 76 Thefive factors include: 1) the opportunity of the witness to view the criminal at the time ofthe crime, 2) the witness’ degree of attention, 3) the accuracy of his prior description of69 Id. at 114.70 Sandra G. Thompson, Eyewitness Identifications and State Courts as Guardians AgainstWrongful Conviction, 7 OHIO ST. J. CRIM. L. 603, 605 (2010).71 Id. at 610.72 Id.73 Id.74 Id.75 Thompson, supra note 69, at 611.76 Neil v. Biggers, 409 U.S. 188, 199-200 (1972), cited with approval in Manson, 432 U.S. at 114.10
the criminal, 4) the level of certainty demonstrated at the confrontation, and 5) the timebetween the crime and the confrontation.” 77 The Biggers factor fail in two ways inassessing the totality of the circumstances. The factors rely heavily on the correlationbetween the certainty of the eyewitness and the accuracy of the identification. 78 Asindicated prior, with cognitive biases in place and estimator variables the certainty doesnot correlate with accuracy. 79 Furthermore, although this prong of the test does includecertain estimator variables, there are other estimator variables that are not exclusive to thefive factors such as weapons-focus. 80The Brathwaite analysis is a good starting point but requires a very low threshold foradmission of identification evidence and does not account for all the variables that canaffect the human memory.II. STATE PROFILE: FLORIDA, THE EYEWITNESS IDENTIFICATION ANOMALYThe criminal justice system in Florida is a bit of an anomaly. The state is one ofthirty-five states to impose the death penalty and it is the leader in exonerations for deathrow inmates. Yet the system lacks any uniform procedural safeguards for lawenforcement departments and imposes a more restrictive standard of proof than thefederal due process test. These contradictions in the system explain the number of highprofile cases affected by misidentification in the jurisdiction, including the unfortunatestory of Frank Lee Smith. The story is integral to the eyewitness identification analysisabout the jurisdiction because it demonstrates the flawed nature of the entire system andalso indicates the lack of effort in the reformation of the system.A. Frank Lee Smith: A Miscarriage of JusticeAs guardians of the justice system, law enforcement personnel, prosecutors, andjudges are charged with ensuring that the laws enforced and criminals punished forwrongdoing. Most of these professionals never anticipate punishing the wrongfullyconvicted. Unfortunately, in Florida there have been several high profile miscarriages ofjustice involving eyewitness identification.One particularly egregious account of misidentification in Florida was the wrongfulconviction of Frank Lee Smith. Smith’s entire life story was that of providence andmisfortune. Born to a 14-year-old mother in on July 20, 1947 he was automaticallythrusted into a world of poverty and segregation in the deep south of Georgia. 81Not shortly after his birth, his father became involved in criminal activity and waskilled by the police. 82 Unable to support the family, his mother uprooted them to Fort77 Id.78 Thompson, supra note 69, at 610.79 Id.80 Id. at 611.81 Jeff Walsh, Frank Lee Smith’s Long Hard Life, Frontline: REQUIEM FOR FRANK LEE SMITH,http://www.pbs.org/wgbh/pages/frontline/shows/smith/etc/longhard.html (published April 2002).82 Id.11
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