Eyewitness identification law reform: the need for persistence
Freckelton, I.
Journal of Law and Medicine 20(3): 503-511
2013
ISSN/ISBN: 1320-159X PMID: 23600185 Document Number: 667626
The overturning of many convictions, including by DNA evidence, and an extensive body of experimental psychology evidence have demonstrated unequivocally the dangers of eyewitness identification evidence. In many countries this risk has been marked by procedures mandating identification parades, judges' warnings, discretionary exclusion of such evidence and heightened awareness of the dangers on the part of trial lawyers. In the United States there has also been an additional check and balance--the due process check. In the Supreme Court decision of Perry v New Hampshire 132 S Ct 716; 181 L Ed 2d 694 (2012) the majority declined to extend the ambit of the check, determining that it should only be enlivened when police misconduct is established. Such an approach failed to acknowledge in a significant way the core risk of unreliability of such evidence when identifications are contaminated by factors such as suggestion. However, rather than bemoaning another failure of the law to draw adequately upon the fruits of social science, the quest should continue internationally to find ways to build upon the knowledge generated by experimental psychology in order to reduce the risks of miscarriages generated by misidentifications.