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How can courts minimize risks from false eyewitness testimony?

| Jun 11, 2015 | Criminal Defense

In today’s post, we’ll be following up on a topic we discussed last week: flawed eyewitness testimony. The New York Times recently published a story about a shooting incident involving two police officers and an African-American suspect. Security camera footage corroborated the officers’ version of events (and showed that the shooting was necessary and justified). Before that, however, two eyewitnesses gave the Times somewhat conflicting and ultimately incorrect accounts of what transpired. Both witnesses gave their accounts confidently.

Although the incident occurred on the streets of New York, it could have just as easily happened on the streets of Milwaukee or in other Wisconsin cities. If we understand the limits and liabilities of eyewitness testimony, the responsible course of action would be to place restrictions on how and when eyewitness testimony can be used in criminal cases.

In New York, the Innocence Project, The state Bar Association and the District Attorneys Association of New York are working together on creating best practices aimed at reducing the risk that mistaken eyewitness identification will lead to wrongful conviction. Under these proposed new practices, eyewitness statements would be treated the same as inconclusive physical evidence: helpful but not immune from contamination.

The changes would begin during the investigation itself. During lineups and photo lineups, witnesses are asked to identify the person who best matches their memory of the suspect. But because these lineups are often facilitated by an investigator who may already have his own leads and hunches, subtle cues may influence the witness, even if neither the witness nor the investigator realizes that this is happening.

The solution to this problem is very straightforward. This legal coalition is recommending that lineups and photo lineups should be conducted by investigators who are not involved in the case. This will all but ensure that unconscious bias is not transmitted to witnesses.

If and when a witness makes an identification, they should also be asked about how certain they are that this person is the suspect. By the time a case goes to trial, many witnesses have become certain of their choice, if only because they have received positive feedback that has strengthened their confidence. Eyewitness identification will likely be more trustworthy in cases where witnesses show certainty right away.

If these changes are enacted and prove successful, we must hope that prosecutors and courts in Wisconsin will consider implementing them here.

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