News 08.29.16

Connecticut Supreme Court Limits In-court Identification in Light of the Danger of Misidentification

By Shirley LaVarco and Karen Newirth

In his 1981 dissent in Watkins v. Sowders, Justice William Brennan observed: “[T]here is almost nothing more convincing than a live human who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’” While in-court identifications have long been a centerpiece of criminal trials in the United States, social science research has found them to be both inherently unreliable and highly prejudicial. Through this dangerous combination of unreliability and prejudice, in-court identifications endanger the wrongfully accused and impede the truth-seeking function of the adversarial process. Equipped with this knowledge, and in response, in part, to the Innocence Project’s friend-of-the-court brief, the Connecticut Supreme Court issued a ruling this month in State v. Dickson, holding that some in-court identifications implicate defendants’ due process rights and should therefore be subject to screening by the trial court.

Of the 344 individuals who have been exonerated by DNA testing, 71 percent were convicted, at least in part, based on mistaken identification. Of those, more than half (53 percent) were misidentified in court. Research has revealed the risk of erroneous identification to be particularly great in the courtroom, where witnesses are asked to identify the perpetrator months, or even years, after they observed a crime. This time lapse is dangerous because memory decays over time and because witness memories can be contaminated and distorted by information obtained between the crime and the trial.

Moreover, as is obvious even to a lay person, in-court identifications are highly suggestive. The defendant is often the only person in the courtroom who fits the witness’s description, and is often the only person that the witness has been exposed to in prior identification procedures. As the Second Circuit noted in U.S. v. Archibald (1989), “[a]ny witness, especially one who has watched trials on television, can determine which of the individuals in the courtroom is the defendant.” These elements of suggestiveness, coupled with the knowledge that the state believes the defendant is guilty, may lead an eyewitness to, consciously or unconsciously, conform to the state’s theory and make the sought in-court identification.

Furthermore, many witnesses appear exceptionally confident in their in-court identifications. While jurors often equate this confidence with accuracy, research shows that confidence at the time of testimony is not well-correlated with accuracy and can instead be the product of prior procedures, memory contamination, and/or the suggestiveness of the in-court identification procedure itself.  On top of all of this, research has demonstrated that cross-examination and argument by defense counsel—the traditional tools of the adversarial process—do little to counteract these effects; functioning best as tools to expose lying witnesses rather than those who are honestly mistaken, like most eyewitnesses who get it wrong.

The Court in Dickson was “hard-pressed to imagine a more suggestive identification procedure” than an in-court identification. As such, it reversed its prior decision, State v. Smith, which held that in-court identifications should only be excluded when tainted by an impermissibly suggestive out-of-court identification. In Dickson, the Court held that in-court identifications will be permitted only if the witness had previously made a positive identification in a nonsuggestive out-of-court identification procedure–determined by the court on a case-by-case basis–or there is another “good reason” to allow the in-court identification (e.g., when identity is not an issue or the eyewitness was known to the defendant). Importantly, the Court made clear that in-court identifications would not be permitted where an eyewitness previously failed to positively identify the defendant in an out-of-court procedure, finding: “The state is not entitled to conduct an unfair procedure merely because a fair procedure failed to produce the desired result.”

With Dickson, the Connecticut Supreme Court has once again demonstrated its leadership among the growing ranks of courts taking a more scientific approach to eyewitness evidence. Connecticut is now the second state to strictly limit in-court identifications, following two 2014 decisions by the Supreme Judicial Court of Massachusetts.

The Innocence Project commends the Connecticut Supreme Court for taking seriously the injustices suffered by at least 129 DNA exonerees who were wrongfully convicted based, at least in part, on erroneous in-court identifications. We recognize Dickson as an important victory in the fight for a fairer administration of justice and encourage other courts to build on its example by eliminating in-court identifications, which offer little in the way of probative evidence and much in the way of prejudice.

Related: Meet Connecticut Exoneree Miguel Roman

Leave a reply

  1. claudious aka clifton channer says:

    my name is claudious channer i was wrongly convicted by false eyewitness identification in the State of connecticut and deported to Jamaica so i have to change at the new procedures to undo the wrongs that was done to me. Picture this on a sunday when you are home with your family two people said that you were the passenger of a car that rob the. Now come a trial and these two people come in and point you out as one of the et robbers, you have not seen these people ever in your life but now they are on the witness stand pointing the finger at you.
    The chair is the court room feel like it was moving around with me when the witnesses pointed at me as one of the robbers, my father, girls friend and brother all testified as to my where about but that was not good enough i was convicted. Subsequently the two witnesses
    recanted their testimony and was found to give false testimony but the judge left the conviction in place and claim that the witnesses false testimony did not erode their positive out of court identification at the police station. The State crown witness lied under oath that he did not have a brother name Tred who show him a picture of two men who he had identified as the culpret. The jury did not get to hear that the crown witness was lying and to give weight to the false testimony the court in its own interest decided to throw out the Petitioner pro-se claim and deport the Petitioner. Now the same issues that the Petitioner was claiming, they are front line news today but i stand convicted of a robbery that the victims all claim that i was the wrong man convicted of the crime but the court does not believe so.

  2. John Davis says:

    As a prosecutor, I always viewed the “in-court” identification as a mere formality. I never placed much emphasis on its probative value.

    However, on reading this article, I can see that it can be highly, highly prejudicial, and, brings to mind some cases, in which identification was an issue, in which a false identification in court could have been vital to a wrongful conviction.

    Kudos to Connecticut for their willingness, and, insightfulness in contributing to a reform of our broken criminal “justice” system.

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