Identification: Best Practices and State Approaches

Best Practices and Modern State Approaches

The Supreme Court’s eyewitness identification jurisprudence has remained virtually unchanged for the past 40 years.94  In the next two cases, students will observe how two state courts have dealt with eyewitness identification evidence in light of a plethora of scientific research showing how it can be unreliable.

Notes, Comments, and Questions 

The Supreme Court of Connecticut focused on how a defendant might educate a jury about the unreliability of eyewitness identification, ameliorating the negative consequences of unreliable evidence. Students who have taken Evidence may recognize similarities between this kind of testimony and other forms of hotly-disputed expert testimony. For example, testimony about “battered woman syndrome” and “rape trauma syndrome” may be helpful to the jury in some cases. For example, a woman who kills her abusive boyfriend may wish to offer syndrome evidence in support of a self-defense theory. But such testimony is valuable only to the extent it is based on sound scientific research. Also, when such testimony is admissible, courts normally are careful to limit its scope. For example, in a rape case, the defense might argue that the alleged victim’s behavior is not consistent with that of a “real” rape victim (if, for example, she voluntarily spent time with the defendant after the alleged rape). A prosecution expert might help the jury understand that somewhat counterintuitive behavior is actually within the range of normal behavior observed among victims. The expert normally may not, however, speculate about whether any particular complaining witness was or was not raped.

Notes, Comments, and Questions 

Connecticut and New Jersey are two examples of states that have endeavored to incorporate evidence-based recommendations into eyewitness identification practices.  In 2009, The New York State Justice Task Force was created to “eradicate the systemic and individual harms caused by wrongful convictions, and to promote public safety by examining the causes of wrongful convictions and recommending reforms to safeguard against any such convictions in the future.” In 2011, the task force made the following recommendations


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