dada_floridamisidentification_final - UDC Law Review

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experiments indicate that about four out of five mistaken identifications were believed bymock jurors based on the confidence of the eyewitness at trial. 138iv. Double-Blind Lineups and Photo ArraysIn double blind administration of lineups and photo arrays, the administrator isunaware of the identity of the suspect. Studies indicate that when the administrator hasknowledge of the identity of the suspect in the lineup they can intentionally orunintentionally lead the witness to the suspect through verbal and non-verbal cues. 139 “Acue can be a statement to the witness or even an administrator’s posture or facialexpression. 140 Verbal and non-verbal cues are examples of suggestive procedures that cansuggest to the witness where a suspect is in the lineup. 141 Consequently, the observer in adouble blind test has to rely solely on recollection without law enforcement implication.v. Sequential Line UpsOne of the most effective ways to reduce eyewitness error is through the use ofsequential lineup as opposed to group lineup techniques. “A sequential procedure is onein which the eyewitness views one lineup member at a time, deciding whether or not thatperson is the culprit before seeing the remaining line up members.” 142 Having the viewthe line up suspect one at time requires the eyewitness to rely less on their relativejudgment and more on the absolute judgment. 143 “A sequential lineup is more likely toprompt the eyewitness to compare each participant in the lineup to the eyewitness’smemory of the perpetrator of the crime (i.e. make an absolute judgment), rather thancompare the participant to each other (i.e. make a relative judgment).” 144 It is vitalhowever, that sequential lineups should be conducted through blind administration.[R]esearchers have shown that the sequential presentation, if implementedin tandem with the double-blind procedure, results in fewer falseidentifications. It is important to note that if the administrator is not“blind,” however, the sequential procedure can actually produce higherrates of false identifications, as witnesses may be more susceptible tounintentional feedback from the administrator when considering onelineup member at a time. 145In essence, the sequential technique relieves external pressure on the eyewitness tomake the selection based upon external pressures like law enforcement, friends, andrelatives as well as internal pressures of feeling like a failure if they do not chose asuspect.138 Id.139 Id.140 Id. at 7.141 Wells et al., supra note 31, at 12-13.142 Id. at 13.143 Id.144 Id.145 The Justice Project, supra note 133, at 7.18
B. Judicial RecommendationsLegislative adoption of procedural rules in law enforcement practices will onlypartially alleviate the eyewitness misidentification. The state judiciaries are charged withensuring that every defendant receives the procedural and substantive due process of thelaw ensured by the Constitution. Federal courts apply the Brathwaite analysis as theConstitutional minimum required for identification evidence at trial. Although statecourts cannot adopt rules that are more restrictive on Constitutional rights of thedefendant, they can adopt more restrictive rules on government practices in keeping withthe Constitution. Two methods the judiciary can adopt to assure proper procedure is the“Per Se” rule to exclude highly suggestive evidence and an independent source ofanalysis for identification evidence.i. “Per Se” Rule of ExclusionThe adoption of a procedural “Per Se” rule would exclude all identification evidencethat was a result of highly suggestive police practice. 146 In Brathwaite, the SupremeCourt rejected this idea, reasoning that it would result in the loss of valuableidentification evidence. 147 The Supreme Court theorized that the highly suggestivepractices can still produce reliable evidence and the two-prong analysis would serve asadequate deterrence to suggestive practices. 148 However, the Supreme Court did notaccount for the fact that suggestive evidence “can produce false identification, it candistort a person’s memory of the events, and it can artificially heighten the witness’sdegree of confidence in the identification.” 149 Thus, once the states adopt lawenforcement practices that reduce identification mishaps then the courts should be alsoimplement the “Per Se” rule and exclude all suggestive evidence.Several different states have already taken the initiative of adopting this type of rulebased on extensive studies and research indicating the damage that can result when suchevidence is admitted at trial. 150 The effect is that,[O]ver time, a per se exclusionary rule for unnecessarily suggestiveidentification practices tends to create through a case-by-case method, aset of best practices, although it does so in reverse fashion. By indicatingdisapproval of certain practices, the courts implicitly require police to dothe opposite, thus effectively creating a set of rules for obtainingidentification evidence in a non-suggestive manner. 151146 Thompson, supra note 69, at 612147 Id.148 Id.149 Id. at 611.150 Id. at 621-627.151 Thompson, supra note 69, at 624.19
Page 1: EYEWITNESS MISIDENTIFICATION AND TH
Page 4 and 5: There are three biases that studies
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Page 10 and 11: confrontations. The factors to be c
Page 12 and 13: Lauderdale, Florida where she turne
Page 14 and 15: asic training course, regulated by
Page 16 and 17: Pre-emptive, cost effective measure
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