Eyewitnesses and exclusion

Vanderbilt Law Review

Volumn 65, Issue 2, 2012, Pages 451-506

  Garrett, Brandon L ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 84860171626     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (239)

1. See, e.g., Timothy P. O'Toole & Giovanna Shay, Manson v. Brathwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to Eyewitness Identification Procedures, 41 VAL. U. L. REV. 109, 122-26 (2006);
2. Charles A. Pulaski, Neil v. Biggers: The Supreme Court Dismantles the Wade Trilogy's Due Process Protection, 26 STAN. L. REV. 1097, 1104-10 (1974);
3. Benjamin E. Rosenberg, Rethinking the Right to Due Process in Connection with Pretrial Identification Procedures: An Analysis and a Proposal to Return to the Wade Trilogy's Standard, 79 KY. L. J. 259, 275-97 (1991);
4. Richard A. Wise et al., A Tripartite Solution to Eyewitness Error, 97 J. CRIM. L. & CRIMINOLOGY 807, 870 (2007);
5. David E. Paseltiner, Note, Twenty-Years of Diminishing Protection: A Proposal to Return to the Wade Trilogy's Standards, 15 HOFSTRA L. REV. 583, 589-90 (1987);
6. Dori Lynn Yob, Comment, Mistaken Identifications Cause Wrongful Convictions: New Jersey's Lineup Guidelines Restore Hope, but Are They Enough?, 43 SANTA CLARA L. REV. 213, 229-31 (2002).
7. Watkins v. Sowders, 449 U. S. 341, 352 (1981) (Brennan, J., dissenting) (emphasis in original omitted)
8. (quoting ELIZABETH F. LOFTUS, EYEWITNESS TESTIMONY (1979)).
9. See William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L. J. 1, 37-45 (1997).
10. Manson v. Brathwaite, 432 U. S. 98, 114 (1977).
11. United States v. Wade, 388 U. S. 218, 228 (1967);
12. See GEOFFREY GAULKIN, REPORT OF THE SPECIAL MASTER: STATE OF NEW JERSEY V. LARRY E. HENDERSON 9 (2010) [hereinafter HENDERSON REPORT], available at http://www.judiciary.state.nj.us/pressrel/HENDERSON%20FINAL%20BRIEF%20. PDF%20(0062 1142).PDF (the New Jersey Supreme Court instructed a special master to consider "the current validity of our state law standards on the admissibility of eyewitness identification' ").
13. See, e.g., BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO WRONG 63-72 (2011).
14. See Gary L. Wells & Amy L. Bradfield, "Good, You Identified the Suspect": Feedback to Eyewitnesses Distorts Their Reports of the Witnessing Experience, 83 J. APPLIED PSYCHOL. 360, 360 (1998).
15. See DEPARTMENT OF JUSTICE, TECHNICAL WORKING GROUP FOR EYEWITNESS EVIDENCE, NCJ 178240, EYEWITNESS IDENTIFICATIONS: A GUIDE FOR LAW ENFORCEMENT, at iii (1999), available at https://www.ncjrs.gov/pdffiles1/nij/178240.pdf ("Recent cases in which DNA evidence has been used to exonerate individuals convicted primarily on the basis of eyewitness testimony have shown us that eyewitness evidence is not infallible.").
16. See generally JAMES M. DOYLE, TRUE WITNESS: COPS, COURTS, SCIENCE AND THE BATTLE AGAINST MISIDENTIFICATION, at xi-xiii (2005).
17. See, e.g., Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55, 122-25 (2008) (describing reforms advanced and adopted to improve accuracy in criminal investigations and prosecutions).
18. 132 S. Ct. 716 (2012).
19. See GARY L. WELLS, MANCY K. STEBLAY & JENNIFER E. DYSART, AM. JUDICATURE SOC'Y, A TEST OF THE SIMULTANEOUS VS. SEQUENTIAL LINEUP METHODS, at x (2011), available at www.ajs.org/wc/pdfs/EWID-PrintFriendly.pdf (finding that using a sequential procedure, rather than simultaneous, reduces mistaken identifications with little or no reduction in accurate identifications).
20. See ELIZABETH F. LOFTUS, JAMES M. DOYLE & JENNIFER E. DYSART, EYEWITNESS TESTIMONY: CIVIL AND CRIMINAL § 8-18 (4th ed. 2007) ("[C]ourts have gone to truly extraordinary lengths to accept very limited opportunities to observe independent sources."). I have located two scholars who have written about the potential danger of such rulings. Sandra Guerra Thompson, in an important article on the role of state courts in reforming criminal procedure more generally, discusses such decisions in several states.
21. See Sandra Guerra Thompson, Eyewitness Identifications and State Courts as Guardians Against Wrongful Conviction, 7 OHIO ST. J. CRIM. L. 603, 628-31 (2010). Katherine Kruse, in an insightful analysis of reform efforts in Wisconsin, cites to the potential corrosive effect of such "independent source" rules.
22. See Katherine R. Kruse, Instituting Innocence Reform: Wisconsin's New Governance Experiment, 2006 WIS. L. REV. 645, 722 n. 367. Moreover, very few commentators have discussed in-court identifications generally. Infra note 44.
23. See 41 GEORGE E. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE & PROCEDURE § 14. 39 (2d ed. 2001) ("The Texas case law shows some tendency to interject independent source considerations into analysis of defendants' due process claims. This unfortunately confuses the differences between the two constitutional concerns at issue⋯"). Few judges have noted the flaws in such an approach, although a few dissenting judges have done so.
24. See FED. R. EVID. 801 (d) (1) (C) (stating hearsay exception for prior statement that is "one of identification of a person made after perceiving the person").
25. See, e.g., Herring v. United States, 555 U. S. 135, 137 (2009) (holding exclusionary rule did not apply to warrantless arrest caused by negligent police recordkeeping error).
26. Perry v. New Hampshire, 132 S. Ct. 716, 730 (2012).
27. See State v. Henderson, 27 A.3d 872 (N. J. 2011);
28. Alvin G. Goldstein, June E. Chance & Gregory R. Schneller, Frequency of Eyewitness Identification in Criminal Cases: A Survey of Prosecutors, 27 BULL. PSYCHONOMIC SOC'Y 71, 73 (1989). That survey is now dated, but hopefully new efforts to survey police and prosecutors will provide more complete data.
29. See, e.g., EDWIN M. BORCHARD, CONVICTING THE INNOCENT 367 (1932) (describing how, in the first collection of accounts of "criminal prosecutions and convictions of completely innocent people", that "[p]erhaps the major source of these tragic errors is an identification of the accused by the victim of a crime of violence");
30. FELIX FRANKFURTER, THE CASE OF SACCO AND VANZETTI 30 (1927) ("The identification of strangers is proverbially untrustworthy.");
31. HUGO MUNSTERBERG, ON THE WITNESS STAND: ESSAYS ON PSYCHOLOGY AND CRIME 39, 50-69 (1908) (describing early psychological research on malleability and unreliability of eyewitness memory);
32. Cf. Manson v. Brathwaite, 432 U. S. 98, 131 & n. 11 (1977) (Marshall, J., dissenting) (stating that "the greatest memory loss occurs within hours after an event" and citing a holding from the Court of Appeals for the District of Columbia that a showup four hours after the crime was not permissible);
33. Jessica Lee, Note, No Exigency, No Consent: Protecting Innocent Suspects from the Consequences of Non-Exigent Show-ups, 36 COLUM. HUM. RTS. L. REV. 755, 759-62 (2005) ("Unlike 'stationhouse' show-ups, show-ups conducted in the field are often admissible due to their spatial and temporal proximity to the crime.").
34. See Richard Gonzalez, Phoebe C. Ellsworth & Maceo Pembroke, Response Biases in Lineups and Showups, 64 J. PERSONALITY & SOC. PSYCHOL. 525 (1993) (finding subjects tested with showups only identified the perpetrator thirty percent of the time whereas when tested with lineups they correctly identified the perpetrator sixty-seven percent of the time). In addition, "there is clear evidence that showups are more likely to yield false identifications than are properly constructed lineups."
35. See Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads", 22 LAW & HUM. BEHAV. 603, 630-31 (1998) (citing multiple sources).
36. See Gary L. Wells & Deah S. Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme Court's Reliability Test in Light of Eyewitness Science: 30 Years Later, 33 LAW & HUM. BEHAV. 1, 16 (2009) (stating that a "large percentage of jurisdictions in the U. S. use only photographs and never use live lineups").
37. See Erica Goode & John Schwartz, Police Lineups Start to Face Facts: Eyes Can Lie, N. Y. TIMES, Aug. 28, 2011 http://www.nytimes.com/2011/08/29/us/ 29witness.html?-r=1&scp=1&sq= police%20linups%20start%20to%20face%20facts&st=cse (noting that the Police Executive Research Forum has begun a survey on the topic from 1, 400 randomly selected police departments). Separate questions remain as to compliance with written policies, even if they do reflect best practices on paper.
38. Michael S. Wogalter, Roy S. Malpass & Dawn E. McQuiston, A National Survey of U. S. Police on Preparation and Conduct of Identification Lineups, 10 PSYCHOL. CRIME & L. 69, 72 (2004). In addition, most officers (fifty-eight percent) reported a lack of "formal training in eyewitness identification techniques."
39. See Chelyen Davis, Panel Head Favors New Rules on Police Lineups, FREE LANCE-STAR (Fredericksburg, Va.), Sept. 9, 2010, http://fredericksburg.com/News/ FLS/2010/092010/09092010/574245. A survey of lineup procedures in Texas found only twelve percent of responding departments had any written policies; legislation requiring written policies was subsequently enacted.
40. See Tony Plohetski, Police Pen New Rules for Photo Lineups, AUSTIN AM.-STATESMAN, May 8, 2009, at A1.
41. Bruce W. Behrman & Sherrie L. Davey, Eyewitness Identification in Actual Criminal Cases: An Archival Analysis, 25 LAW & HUM. BEHAV. 475, 479 (2001) (noting that in 271 cases analyzed, 258 field showups were used; however, multiple showups could occur in each case);
42. Sandra Guerra Thompson, Judicial Blindness To Eyewitness Misidentification, 93 MARQ. L. REV. 639, 646 (2009) ("[S]how-ups constitute one of the most commonly used identification procedures.").
43. See Richard A. Wise, Clifford S. Fishman & Martin A. Safer, How to Analyze the Accuracy of Eyewitness Testimony in a Criminal Case, 42 CONN. L. REV. 450-52 (2009) (describing how eyewitness identifications are litigated in criminal cases).
44. United States v. Robertson, 19 F.3d 1318, 1323 (10th Cir. 1994) (citations omitted)
45. (quoting United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986)).
46. See, e.g., People ex rel. Blassick v. Callahan, 279 N. E.2d 1, 3 (Ill. 1972) ("We have specifically rejected the contention that on [sic] in-court identification of an accused without a lineup denies due process of law.");
47. People v. Bradley, 546 N. Y. S.2d 437, 437 (App. Div. 1989) ("A criminal defendant does not have a constitutional right to participate in a lineup whenever he requests one.");
48. People v. Grady, 506 N. Y. S.2d 922, 932 (Sup. Ct. 1986) ("[I]t is undisputed that there is no constitutional requirement that a defense-requested in-court lineup be conducted.").
49. But see Evans v. Superior Court, 11 Cal. 3d 617, 625 (1974) ("[D]ue process requires⋯ that an accused, upon timely request therefor [sic], be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate⋯ when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve.").
50. United States v. Archibald, 756 F.2d 223, 223 (2d Cir. 1984) ("[S]pecial procedures are necessary only where (1) identification is a contested issue; (2) the defendant has moved in a timely manner prior to trial for a lineup; and (3) despite that defense request, the witness has not had an opportunity to view a fair out-of-court lineup prior to his trial testimony or ruling on the fairness of the out-of-court lineup has been reserved."). Such procedures are within the discretion of the trial court.
51. Domina, 784 F.2d at 1369.
52. See Evan J. Mandery, Legal Development: Due Process Considerations of In-Court Identifications, 60 ALB. L. REV. 404-09;
53. see also State v. Smith, 512 A.2d 189, 193 (Conn. 1986) ("We know of no authority which would prohibit, as unduly suggestive, an exclusively in-court identification. "
54. (quoting Mangrum v. State, 270 S. E.2d 874, 876 (Ga. Ct. App. 1980)).
55. People v. Martinez, Nos. 6403/01, 6402/01, 2001 WL 1789315 (N. Y. Sup. Ct. Nov. 28, 2001).
56. People v. Gow, 382 N. E.2d 673, 675 (Ill. App. 1978) (describing how eyewitness identified person seated next to defense counsel);
57. Fredric D. Woocher, Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 STAN. L. REV. 969, 969 n. 3 (1977) ("A judge in New York City developed his own system to check on the frequency of mistaken identifications. In ten cases in which the identification of the accused was virtually the only evidence, the judge permitted defense attorneys to seat a lookalike alongside the defendant. In only two of the ten cases was the witness able to identify the defendant.").
58. United States v. Sabater, 830 F.2d 7, 9 (2d Cir. 1987).
59. United States v. Thoreen, 653 F.2d 1332, 1339-40 (9th Cir. 1981);
60. see People v. Simac, 641 N. E.2d 416 (Ill. 1994) (affirming conviction for direct criminal contempt of attorney who substituted the position of the defendant without permission from the judge);
61. Miskovsky v. State ex rel. Jones, 586 P.2d 1104, 1108 (Okla. Crim. App. 1978) (explaining source of the contempt finding was counsel's failure to gain permission from the court before substituting another person for the defendant). Interestingly, one judge dissented in the Illinois case, stating, "After a thorough review of the record, I believe that defense counsel was acting in good faith to protect his client from a suggestive in-court identification. "
62. Simac, 641 N. E.2d at 424 (Nickels, J., dissenting).
63. See FED. R. EVID. 801 (d) (1) (C) (hearsay exclusion for prior statement that is "one of identification of a person made after perceiving the person. ");
64. see also Gilbert v. California, 388 U. S. 263, 272 n. 3 (1967) ("It was [sic] been held that the prior identification is hearsay, and, when admitted through the testimony of the identifier, is merely a prior consistent statement. The recent trend, however, is to admit the prior identification under the exception that admits as substantive evidence a prior communication by a witness who is available for cross-examination at trial.").
65. See MICHAEL H. GRAHAM, 3 HANDBOOK OF FEDERAL EVIDENCE § 801:11 (6th ed. 2006).
66. S. REP. NO. 94-199, at 2 (1975).
67. United States v. Wade, 388 U. S. 218, 228 (1967).
68. Stovall v. Denno, 388 U. S. 293, 302 (1967).
69. See, e.g., United States ex rel. Kirby v. Sturges, 510 F.2d 397, 407 n. 32 (7th Cir. 1975).
70. Wade, 388 U. S. at 235-36.
71. Gilbert v. California, 388 U. S. 263, 272 n. 3 (1967) ("It was [sic] been held that the prior identification is hearsay, and, when admitted through the testimony of the identifier, is merely a prior consistent statement. The recent trend, however, is to admit the prior identification under the exception that admits as substantive evidence a prior communication by a witness who is available for cross-examination at trial.").
72. E.g., Moore v. Illinois, 434 U. S. 220, 231 (1977);
73. Coleman v. Alabama, 399 U. S. 1, 21 (1970) (Harlan, J., concurring in part and dissenting in part) ("The Wade rule requires the exclusion of any in-court identification preceded by a pretrial lineup where the accused was not represented by counsel, unless the in-court identification is found to be derived from a source 'independent' of the tainted pretrial viewing.").
74. See Sandra Guerra Thompson, Beyond a Reasonable Doubt? Reconsidering Uncorroborated Eyewitness Identification Testimony, 41 U. C. DAVIS L. REV. 1487, 1511 (2008) (developing "the shortcomings of an attorney's presence as a remedy").
75. United States v. Ash, 413 U. S. 300, 321 (1973).
76. Foster v. California, 394 U. S. 440, 442-43 (1969).
77. Simmons v. United States, 390 U. S. 377, 384 (1968).
78. Manson v. Brathwaite, 432 U. S. 98, 122 (1977) (Marshall, J., dissenting).
79. Neil v. Biggers, 409 U. S. 188, 199 (1972). The Court did not have occasion to rule on whether that test should supplant the Stovall test in that case, since the lineup in question predated the Court's Stovall ruling.
80. Manson, 432 U. S. at 113-14.
81. Biggers, 409 U. S. at 199-200.
82. Manson, 432 U. S. at 114.
83. ELIZABETH F. LOFTUS, EYEWITNESS TESTIMONY 52-54 (1996);
84. A. DANIEL YARMEY, UNDERSTANDING POLICE WORK: PSYCHOSOCIAL ISSUES 298-300 (1990).
85. See Melissa Pigott & John C. Brigham, Relationship Between Accuracy of Prior Description and Facial Recognition, 70 J. APPLIED PSYCHOL. 547, 547-548 (1985) (finding congruence and accuracy of eyewitness reports not highly related);
86. Gary L. Wells, Verbal Descriptions of Faces from Memory: Are They Diagnostic of Identification Accuracy?, 70 J. APPLIED PSYCHOL. 619, 623 (1985) (finding low relation between congruence and accuracy of eyewitness reports).
87. E.g., Brian L. Cutler, Steven D. Penrod & Hedy Red Dexter, Juror Sensitivity to Eyewitness Identification Evidence, 14 LAW & HUM. BEHAV. 190 (1990);
88. Samuel R. Gross, Loss of Innocence: Eyewitness Identification and Proof of Guilt, 16 J. LEGAL STUD. 395, 400-01 (1987);
89. Richard S. Schmechel, Timothy P. O'Toole, Catharine Easterly & Elizabeth F. Loftus, Beyond The Ken? Testing Jurors' Understanding of Eyewitness Reliability Evidence, 46 JURIMETRICS J. 177, 195-96 (2006);
90. Gary L. Wells, How Adequate is Human Intuition for Judging Eyewitness Testimony?, in EYEWITNESS TESTIMONY: PSYCHOLOGICAL PERSPECTIVES (Gary L. Wells & Elizabeth F. Loftus eds., 1984).
91. Amy Douglass & Nancy Steblay, Memory Distortion in Eyewitnesses: A Meta-Analysis of the Post-Identification Feedback Effect, 20 APPLIED COGNITIVE PSYCHOL. 859, 864-65 (2006) (discussing how positive post-identification feedback increases witness confidence in identification).
92. Nancy K. Steblay, Maintaining The Reliability of Eyewitness Evidence: After the Lineup, 42 CREIGHTON L. REV. 643, 647-51 (2009) (discussing data from studies of repeated lineups);
93. see, e.g., Gabriel W. Gorenstein & Phoebe C. Ellsworth, Effect of Choosing an Incorrect Photograph on a Later Identification by an Eyewitness, 65 J. APPLIED PSYCHOL. 616, 620-21 (1980) (studying commitment effect of using a photo showup before a live lineup);
94. Tiffany Hinz & Kathy Pezdek, The Effect of Exposure to Multiple Lineups on Face Identification Accuracy, 25 LAW & HUM. BEHAV. 185, 194-96 (2001) (assessing accuracy of identifications when intervening lineups occur).
95. See, e.g., Nancy K. Steblay et al., Sequential Lineup Laps and Eyewitness Accuracy, 35 LAW & HUM. BEHAV. 262, 271 (2011) (describing studies that find repeat viewings, or "laps", increase choosing rates and error rates, with particularly high error rates among witnesses who choose to view a second time).
96. Steven Penrod & Brian Cutler, Witness Confidence and Witness Accuracy: Assessing Their Forensic Relation, 1 PSYCHOL. PUB. POL'Y & L. 817, 827 (1995).
97. Gary L. Wells & D. M. Murray, What Can Psychology Say About the Neil vs. Biggers Criteria for Judging Eyewitness Identification Accuracy?, 68 J. APPLIED PSYCHOL. 347, 357-58 (1983).
98. See, e.g., Petition for a Writ of Certiorari at 3-4, Perez v. United States, 547 U. S. 1002 (2006) (No. 05-596)
99. 2005 WL 3038542 (certiorari petition seeking review of Biggers and Manson test based on new empirical studies);
100. State v. Ledbetter, 881 A.2d 290, 304-06 (Conn. 2005) (Connecticut Supreme Court rejecting constitutional challenge, citing "scientific studies" to the five factor test of Biggers and Manson).
101. Perry v. New Hampshire, 132 S. Ct. 716, 738 (2012) (Sotomayor, J., dissenting).
102. Perry, 132 S. Ct. at 728 (citing Brief for American Psychological Association as Amicus Curiae as "describing research indicating that as many as one in three eyewitness identifications is inaccurate");
103. See Neil Miller, FRONTLINE, THE BURDEN OF INNOCENCE, PROFILES (May 1, 2003), http://www.pbs.org/wgbh/pages/frontline/shows/burden/profiles/miller. html.
104. Trial Transcript at 3-14, Commonwealth v. Miller, No. 085602-04 (Mass. Sup. Ct. Dec. 18, 1990) [hereinafter Miller Trial Transcript].
105. Brief and Record Appendix for the Defendant on Appeal at 7 n. 7, Commonwealth v. Miller, 609 N. E.2d 1251
106. (Mass. App. Ct. Oct. 1992) (No. 92-P-612).
107. See Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. REV. 1, 41-42 (2009) (explaining invalid testimony concerning the phenomenon of "masking" and non-quantification in that case and others).
108. Trial Transcript at 304, State v. Avery, No. 85 FE 118 (Wis. Cir. Ct. Dec. 10, 1985).
109. See Bill Rankin, Exonerations Urge Changes for Eyewitnesses, ATLANTA J-CONST., Dec. 25, 2008, at C1 (quoting from victim's testimony).
110. Perry v. New Hampshire, 132 S. Ct. 716, 728 (2012).
111. See; State v. Smith, 512 A.2d 189, 193 (Conn. 1986) ("The manner in which in-court identifications are conducted is not of constitutional magnitude but rests within the sound discretion of the trial court");
112. Middleton v. United States, 401 A.2d 109, 132 (D. C. 1979) (noting that in-court identifications are "less threatening of the due process guarantee" than one-on-one confrontations in the police station);
113. Ralston v. State, 309 S. E.2d 135, 136 (Ga. 1983) (reasoning that in-court identifications are not scrutinized for reliability because they are under the supervision of the court);
114. State v. Clausell, 580 A.2d 221, 235 (N. J. 1990) (holding that an incourt identification was "constitutionally valid" despite the fact that the witness had not been able to identify the defendant previously in a photo array).
115. Ralston, 309 S. E.2d at 136;
116. People v. Rodriguez, 480 N. E.2d 1147, 1151 (Ill. App. Ct. 1985).
117. *8 (Mass. Super. Ct. 2003) ("Notwithstanding the suppression of the identification following the showup, the witness should be permitted to make an in court identification based on the doctrine of independent source.");
118. State v. Carlson, 611 S. E.2d 283, 290 (S. C. Ct. App. 2005) ("The in-court identification is admissible if based on information independent of the out-of-court procedure.");
119. State v. Dubose, 699 N. W.2d 582, 596 (Wis. 2005) ("The witness would still be permitted to identify the defendant in court if that identification is based on an independent source."
120. (quoting People v. Adams, 423 N. E.2d 379, 384 (N. Y. 1981))).
121. Commonwealth v. Rollins, 738 A.2d 435, 443 (Pa. 1999).
122. State v. Carlson, 611 S. E.2d 283, 290 (S. C. Ct. App. 2005)
123. (citing State v. Rogers 210 S. E.2d 604 (S. C. 1974)).
124. McCary v. Commonwealth, 321 S. E.2d 637, 645 (Va. 1984).
125. State v. Freeman, 330 S. E.2d 465, 471 (N. C. 1985).
126. Gipson v. State, 575 P.2d 782, 787 (Alaska 1978) ("The foregoing evidence of identification, which we consider overwhelming, had an 'independent source' from the tainted incourt identification which occurred at the first preliminary hearing.").
127. State v. Trammel, 92 P.3d 1101, 1110 (Kan. 2004)
128. (citing State v. Edwards, 955 P.2d 1276 (Kan. 1998)).
129. *2 (Del. Super. Ct. Dec. 18, 1991) ("A court may admit evidence based on an otherwise 'unnecessarily suggestive' identification procedure if counsel can show the independent reliability of the identification testimony.");
130. Grady v. Commonwealth, 325 S. W.3d 333, 354 (Ky. 2010) ("[T]he unduly suggestive nature of the pre-trial lineup becomes totally irrelevant if a court determines that there is an independent basis of reliability for the in-court identification. ");
131. Berry v. State, 834 P.2d 1002, 1005 (Okla. Crim. App. 1992) ("A courtroom identification will not be invalidated if it can be established that it was independently reliable under the totality of the circumstances."
132. (citing Cole v. State, 766 P.2d 538, 359 (Okla. Crim. App. 1988)));
133. State v. Patel, 949 A.2d 401, 410 (R. I. 2008) ("If the procedure is found to have been unnecessarily suggestive, the second step requires a determination of whether the identification still has independent reliability despite the suggestive nature of the identification procedure."
134. (citing State v. Camirand, 572 A.2d 290, 293 (R. I. 1990)));
135. State v. Thamer, 777 P.2d 432, 435 (Utah 1989) ("[I]f the photo array is impermissibly suggestive, then the in-court identification must be based on an untainted, independent foundation to be reliable.");
136. State v. Savo, 446 A.2d 786, 791 (Vt. 1982) ("An in-court identification, even where it has been preceded by a suggestive pretrial identification, may still be admissible where its reliability can be independently established.").
137. See, e.g., Raheem v. Kelly, 257 F.3d 122, 135 (2d Cir. 2001) (citing Manson v. Brathwaite and discussing the need to weigh factors suggesting independent reliability);
138. see also United States v. Wise, 515 F.3d 207, 215 (3d Cir. 2008) (in-court identification admissible though police showed witness photo of defendant with words "Harrisburg Police Department" printed above his head because witness had previously lived with defendant and thus in-court identification was independently reliable);
139. *1 (9th Cir. May 14, 1990) ("Because the procedure used in this case was not impermissibly suggestive, [the defendant's] due process claim fails, and inquiry into the independent reliability factors set forth in Manson v. Brathwaite is not required." (citation omitted)).
140. *9 (Tenn. Crim. App. Mar. 3, 1994) ("If a court determines that under the Biggers standard a pretrial confrontation was so impermissibly suggestive that it violated an accused's due process rights, the independent origin of the in-court identification is irrelevant. Both out-of-court and in-court identifications are automatically excluded.").
141. One Montana decision is ambiguous on this point. State v. Hedrick, 745 P.2d 355, 358 (Mont. 1987) ("The independent basis for the victim's in court identification also prevents the possibility of a substantial likelihood of irreparable misidentification. "). North Dakota had one case citing to an independent basis for admitting an in-court identification, but the case predated Manson, and, absent any more recent rulings, North Dakota was not included.
142. State v. McKay, 234 N. W.2d 853, 858 (N. D. 1975)
143. State v. Lewis, 302 N. W.2d 396, 399 (N. D. 1981).
144. See Webster v. State, 474 A.2d 1305, 1316 (Md. 1984) ("[T]he trial court] looked to the 'independent source' rule of Wade-Gilbert, but, as we have pointed out supra, that rule is concerned only with a lineup which is illegal on Sixth Amendment right to counsel grounds. It is not the test for the admissibility of identification evidence challenged on Fourteenth Amendment due process grounds.").
145. But see Barrow v. State, 474 A.2d 967, 976 (Md. Ct. Spec. App. 1984) ("Even if the State fails to satisfy the legality of a pre-trial confrontation or viewing, the State may still secure the admissibility of a courtroom identification by the same identifying witness if it establishes by clear and convincing evidence that a courtroom identification had a source independent of the prior illegal confrontation or viewing.");
146. Alston v. State, 934 A.2d 949, 967 (Md. Ct. Spec. App. 2007) (asking "whether the courtroom identification has an independent source").
147. Graham v. Solem, 728 F.2d 1533, 81549 (8th Cir. 1984) (McMillian, J., dissenting) ("[C]oncepts of 'purged taint' and 'independent origin' have been blended into, and superseded by, the two-step process of weighing reliability against suggestiveness articulated in Biggers.");
148. United States v. Batista Ferrer, 842 F. Supp. 40, 42 (D. P. R. 1994);
149. State v. McMorris, 570 N. W.2d 384, 393 (Wis. 1997) ("[T]he Wade and Biggers tests are derived from different constitutional amendments and are intended to achieve different purposes.");
150. see also Bernal v. People, 44 P.3d 184, 204-05 (Colo. 2002) (Coats, J., dissenting) ("By analogy to a violation of the Sixth Amendment right to counsel, many jurisdictions, including this one, considered the witness's independent ability to make an identification only as an 'independent source' or 'independent basis' for allowing an in-court identification, despite an 'unduly', 'impermissibly', 'unnecessarily', or 'unconstitutionally' suggestive out-of-court procedure."). The judge added: "Unlike violations of the Fourth or Sixth Amendment, from which the 'independent source' doctrine is clearly borrowed, however, the due process test applies to both the "derivative" incourt identification and the challenged pretrial identification itself⋯"
151. See, e.g., People v. Gray, 577 N. W.2d 92, 96 n. 8 (Mich. 1998) ("The remedy for a violation of the right to counsel is the same as the remedy for an unduly suggestive identification procedure: suppression of the in-court identification unless there is an independent basis for its admission. ").
152. See, e.g., Commonwealth v. Botelho, 343 N. E.2d 876, 880 (Mass. 1976) ("[T]he prosecution is limited to introducing at trial only such identifications by the witness as are shown at the suppression hearing not to be the product of the suggestive confrontation-the later identifications, to be usable, must have an independent source.");
153. State v. Iron Necklace, 430 N. W.2d 66, 84 (S. D. 1988) ("[T]he proof shifts to the State to then prove by clear and convincing evidence that the in-court identification had an independent origin. ");
154. Powell v. State, 271 N. W.2d 610, 617 (Wis. 1978) ("In cases which involve the validity of subsequent in-court identifications the rule is clear: once the defendant shows that the out-of-court identification was improper, the state has the burden of showing that the subsequent in-court identification derived from an independent source and was thus free of taint."). However, in practice courts conduct the same "totality of the circumstances" inquiry, but without considering the prior identifications as a critical part of the relevant circumstances.
155. Complex questions can be raised by assertions that the eyewitness was previously familiar with the suspect. While I do not address the subject here, I note that there are, for instance, underlying questions whether and when familiarity leads to greater reliability-or perhaps reduced reliability under some circumstances.
156. See Lisa J. Steele, Who Was That Masked Man?, 48 CRIM. L. BULL., Winter 2012 (reviewing social science literature and noting that "[f]amiliarity affects eyewitness testimony in 'nuanced, complex, and often counterintuitive ways.' " (citation omitted)). There are questions of proof as to how familiar an eyewitness really was. In addition, courts adopt a range of approaches. Some courts merely note a spectrum of familiarity; some demand strong evidence of familiarity, while others appear to find familiarity present even based on very brief prior encounters.
157. *3 (Mich. App. Nov. 8, 2003) (noting that to determine whether there is an independent basis for identification, one can look to, inter alia, "the witness's prior knowledge of the defendant.");
158. *2 (N. Y. Sup. Ct. Nov. 6, 2002) ("[T]he courts have carved out a 'confirmatory identification exception.' The rationale for this exception is premised on the principle that due to the familiarity between the witness and the suspect, there is little or no risk that police suggestion can lead to mis- identification⋯ The exception may confidently be applied where the protagonists are family members, friends, or acquaintances; at the other extreme, it clearly does not apply when the familiarity emanates from a brief encounter.");
159. see also State v. Marquez, 967 A.2d 56, 82 (Conn. 2009) (finding "independent source" where eyewitness saw defendant at parole office prior to lineup);
160. Dang v. United States, 741 A.2d 1039, 1042 (D. C. 1999) (finding enough evidence for independent basis from the witness's close contact with the robbers in adequate lighting for an extended period of time);
161. Butler v. State, 382 S. E.2d 616, 620 (Ga. Ct. App. 1989) ("In the instant case there was lengthy testimony as to the independent origin of the victim's identification of Butler; he had visited her apartment in the past, she knew him from his place of employment, she recognized his voice, and [she] got a glimpse of his face when it was lighted by the street light.");
162. State v. Tann, 273 S. E.2d 720, 726 (N. C. 1981) (holding that the "one-man show-up" and the victim's identification before the defendant was produced by the officers was ample evidence of independent origin);
163. State v. Jaeb, 442 N. W.2d 463, 465 (S. D. 1989) (upholding the lower
164. See, e.g., United States v. DeJesus, 912 F. Supp. 129, 139 (E. D. Pa. 1995) (holding that a newspaper photograph which jogged the victim's image was not unduly suggestive);
165. Utley v. State, 589 N. E.2d 232, 237-38 (Ind. 1992) (upholding the trial court's finding that a photographic array with the defendant appearing twice was not unduly suggestive);
166. People v. Whitaker, 126 A. D.2d 688, 688-89 (N. Y. App. Div. 2d Dep't 1987) (noting that identifying the assailant in a yearbook photograph was not tainted by police procedures).
167. But see State v. Atwood, 832 P.2d 593, 603 (Ariz. 1992) (upholding the trial courts determination that only two of fourteen witnesses' pretrial viewings of press coverage were unduly suggestive);
168. People v. Prast, 319 N. W.2d 627, 634-35 (Mich. Ct. App. 1982) ("Where an identification of a defendant is based upon a newspaper photograph rather than the witness's own perceptions, it should be excluded.");
169. Rogers v. State, 774 S. W.2d 247, 259-60 (Tex. Crim. App. 1989) ("Since the police procedure was not itself suggestive, the fact that several eyewitnesses were exposed to a media photo of appellant one day before attending a police lineup might, at most, be taken to affect the weight, although not the admissibility, of their trial testimony.")
170. overruled by Peek v. State, 106 S. W. 3d 72 (Tex. Crim. App. 2003);
171. see also Lynn M. Talutis, Annotation, Admissibility of In-Court Identification as Affected by Pretrial Encounter that was not Result of Action by Police, Prosecutors, and the Like, 86 A. L. R. 5th 463, Part III. B. (2001) (citing cases that allowed media identifications as admissible evidence, but also citing others that claimed the evidence was inadmissible).
172. See State v. Cannon, 713 P.2d 273, 281 (Ariz. 1985) (approving jury instruction stating, "[y]ou are instructed that you must be satisfied beyond a reasonable doubt that the in-Court identification was independant [sic] of the previous pre-trial identification or, if not derived from an independent source, you must find from other evidence in the case that the defendant is the guilty person beyond a reasonable doubt").
173. Nardone v. United States, 308 U. S. 338, 341 (1939).
174. Nix v. Williams, 467 U. S. 431, 443-44 (1984)
175. Brown v. Illinois, 422 U. S. 590, 608-10 (1975) (discussing attenuation theory).
176. WAYNE R. LAFAVE, JEROLD H. ISRAEL & NANCY J. KING, CRIMINAL PROCEDURE § 9. 3 (d), at 528-29 (5th ed. 2009).
177. Wong Sun v. United States, 371 U. S. 471, 487 (1963).
178. United States v. Crews, 455 U. S. 463, 474 (1980).
179. United States v. Calandra, 414 U. S. 338, 348 (1974) ("[T]he rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect⋯ As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.").
180. Manson v. Brathwaite, 432 U. S. 98, 112 & n. 12 (1977) ("Although the per se approach has the more significant deterrent effect, the totality approach also has an influence on police behavior.").
181. Solomon v. Smith, 645 F.2d 1179, 1188 (2d Cir. 1981) ("The tests of 'independent origin' set forth in Wade appear to be functionally identical to the reliability tests articulated in Neil v. Biggers⋯").
182. Simmons v. United States, 390 U. S. 377, 383 (1968).
183. United States v. Wade, 388 U. S. 218, 240-41 (1967).
184. *1 (Mass. App. Ct. Apr. 20, 2004).
185. Ellis v. United States, 941 A.2d 1042, 1049 (D. C. 2008) (citations omitted).
186. (quoting People v. Adams, 423 N. E.2d 379, 384 (N. Y. 1981)).
187. See, e.g., Powell v. State, 925 So. 2d 878, 884 (Miss. Ct. App. 2005) (holding that the testimony of three witnesses and the discovery of stolen property from the defendant's truck was additional independent evidence);
188. State v. Valentine, 785 A.2d 940, 943-44 (N. J. Super. Ct. App. Div. 2001) (finding evidence of independent reliability from the testimony of a witness, the retrieval of a gun from the defendant's apartment, and the defendant's flight after officers arrived constituted evidence that gave the identification independent reliability);
189. see also Suzannah B. Gambell, The Need to Revisit the Neil v. Biggers Factors: Suppressing Unreliable Eyewitness Identifications, 6 WYO. L. REV. 189, 211 (2006) (discussing states that add corroborative evidence of general guilt as a Biggers factor);
190. Brandon L. Garrett, Innocence, Harmless Error and Federal Wrongful Conviction Law, 2005 WIS. L. REV. 35, 84-85 (citing federal cases and noting, "The Supreme Court has not intervened as many of the circuits, taking the hint from Manson, have made no secret of their holdings that corroborating evidence of guilt
191. Rudolf Koch, Note, Process v. Outcome: The Proper Role of Corroborative Evidence in Due Process Analysis of Eyewitness Identification Testimony, 88 CORNELL L. REV. 1097, 1102 (2003) ("[C]orroborative evidence of general guilt should be considered only in any post-trial harmless error analysis.").
192. Laurens Walker & John Monahan, Social Frameworks: A New Use of Social Science in Law, 73 VA. L. REV. 559 (1987).
193. State v. Henderson, 27 A.3d 872, 292-93 (N. J. 2011).
194. Susan R. Klein, Identifying and (Re) Formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure, 99 MICH. L. REV. 1030, 1064-65 (2001) (discussing alternative rules that could counter injustices of unreliable identifications).
195. United States v. Greene, 591 F.2d 471, 475 (8th Cir. 1979).
196. United States v. Russell, 532 F.2d 1063, 1067 (6th Cir. 1976).
197. Manson v. Brathwaite, 432 U. S. 98, 122 (1977) (Marshall, J., dissenting).
198. See, e.g., United States v. Brown, 200 F.3d 700, 707-08 (10th Cir. 1999) (finding that, while the victim's identification of the defendants at trial was suggestive, it happened in the presence of a jury and included a full and fair cross-examination of the victim about the process).
199. See Watkins v. Sowders, 449 U. S. 341, 349 (1981)
200. N. C. GEN. STAT. ANN. § 15A-284. 52 (d) (1) (West 2008).
201. OHIO REV. CODE ANN. § 2933. 83 (C) (1) (West 2011).
202. See State v. Ramirez, 817 P.2d 774, 780-81 (Utah 1991) (altering three of the "reliability" factors to focus on effects of suggestion);
203. see also State v. Marquez, 967 A.2d 56, 69-71 (Conn. 2009)
204. Brodes v. State, 614 S. E.2d 766, 771 & n. 8 (Ga. 2005) (rejecting use of eyewitness certainty jury instruction);
205. State v. Hunt, 69 P.3d 571, 576 (Kan. 2003) (adopting Utah's five factor "refinement" of the Biggers factors);
206. Commonwealth v. Johnson, 650 N. E.2d 1257, 1261 (Mass. 1995) (adopting a per se exclusion approach to showup identifications);
207. State v. Cromedy, 727 A.2d 457, 467 (N. J. 1999) (requiring in some circumstances instruction on dangers of cross-racial misidentifications);
208. People v. Adams, 423 N. E.2d 379, 383-84 (N. Y. 1981) (adopting a per se exclusion approach to showup identifications);
209. State v. Dubose, 699 N. W.2d 582, 593-94 (Wis. 2005) ("[E]vidence obtained from an out-of-court showup is inherently suggestive and will not be admissible unless, based on the totality of the circumstances, the procedure was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array.").
210. Brodes, 614 S. E.2d at 770.
211. See Amy Klobuchar, Nancy K. Mehrkens Steblay & Hilary Lindell Caligiuri, Improving Eyewitness Identifications: Hennepin County's Blind Sequential Lineup Pilot Project, 4 CARDOZO PUB. L. POL'Y. & ETHICS J. 381, 405-410 (2006) (discussing benefits of double-blind administration and difficulties in its implementation, but not discussing exclusion of noncomplying or courtroom identifications);
212. Otto H. MacLin, Laura A. Zimmerman & Roy S. Malpass, PC Eyewitness and Sequential Superiority Effect: Computer-Based Lineup Administration, 3 LAW & HUM. BEHAV. 303, 305-308 (2005) (explaining how computer-based lineup administration can reduce administrator bias, but not discussing noncomplying or courtroom identifications);
213. See, e.g., Report of the Task Force on Eyewitness Evidence, SUFFOLK COUNTY DISTRICT ATTORNEY, July 15, 2004, http://www.suffolkdistrictattorney.com/ press-office/reports-and-officialcorrespondance/report-of-the-task-force-on- eyewitness-evidence/.
214. State v. Henderson, 27 A.3d 872, 877-79 (N. J. 2011).
215. State v. Henderson, 937 A.2d 988, 999 (N. J. Super. Ct. App. Div. 2008) ("[I]f the determinations made at the new Wade hearing require the exclusion of the out-of-court identification made by Womble, then the judge should also determine whether Womble is able to make an in-court identification of defendant from an independent source.").
216. Henderson, 27 A.3d at 925.
217. N. C. GEN. STAT. ANN. § 15A-284. 52 (d) (3) (West 2008).
218. OHIO REV. CODE ANN. § 2933. 3 (C) (3) (West 2011).
219. Watkins v. Sowders, 449 U. S. 341, 356 (1981) (Brennan, J., dissenting).
220. See BRIAN L. CUTLER & STEVE D. PENROD, MISTAKEN IDENTIFICATION: THE EYEWITNESS, PSYCHOLOGY, AND THE LAW 11, 263-64 (1995) ("[T]he experiments we have reviewed here provide little evidence that judges' instructions concerning the reliability of eyewitness identification enhance juror sensitivity to eyewitness identification evidence.").
221. See DAVID P. LEONARD, THE NEW WIGMORE: A TREATISE ON EVIDENCE SELECTED RULES OF LIMITED ADMISSIBILITY: REGULATION OF EVIDENCE TO PROMOTE EXTRINSIC POLICIES AND VALUES § 1. 11.5 (2010) (explaining that jury instructions should clearly convey both the applicable legal rules and the importance of abiding by them);
222. Shari Seidman Diamond & Neil Vidmar, Jury Room Ruminations on Forbidden Topics, 87 VA. L. REV. 1857, 1858 (2001) (discussing limits of blindfolding techniques given active nature of juries and advocating for reason-based explanatory instructions). (Pubitemid 33656668)
223. On the value of offering instructions earlier in the trial, see Joel D. Lieberman & Jamie Arndt, Understanding the Limits of Limiting Instructions: Social Psychological Explanations for the Failures of Instructions to Disregard Pretrial Publicity and Other Inadmissible Evidence, 6 PSYCHOL. PUB. POL'Y & L. 677, 705 (2000).
224. Perry v. New Hampshire, 132 S. Ct. 716, 727-28 (2012).
225. None of the examples discussed above necessarily involve absent witnesses and thus can avoid Confrontation Clause problems. The Supreme Court had earlier adopted a reliabilityoriented approach to the Confrontation Clause problem, permitting nonconfrontation of witnesses if the evidence was reliable or had "particular guarantees of trustworthiness."
226. Ohio v. Roberts, 448 U. S. 56, 66 (1980).
227. The Court rejected that approach in Crawford v. Washington, focusing instead on whether the evidence was testimonial in nature. 541 U. S. 36, 68-69 (2004).
228. However, the Court's recent ruling on the "excited utterance" and "ongoing emergency" exception to hearsay returned to a reliability rationale, noting "the prospect of fabrication" is greatly diminished when a person is seeking law enforcement help. Michigan v. Bryant, 131 S. Ct. 1143, 1157 (2011).
229. 542 U. S. 600, 608-09 (2004) (plurality opinion). In Siebert, the Court ruled that when police interrogate a suspect in custody without having given the Miranda warnings, but then after obtaining a confession, give the warnings and ask the same questions again, that the repeated statement is not admissible.
230. See Brandon L. Garrett, The Substance of False Confessions, 62 STAN. L. REV. 1051, 1109-11 (2010) (arguing that constitutional criminal procedure should consider reliability and, in particular, should assess whether suspects actually volunteered crucial facts).
231. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 38. 22 (3) (a) - (c) (West 2011) (stating that "[n]o oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless" there is an "electronic recording" made of it, although containing an exception for "any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed"). Such rules raise additional questions. For example, that Texas statute does not offer a remedy in the situation in which statements were selectively recorded.
232. See, e.g., United States v. Green, 405 F. Supp. 2d 104, 107-109, 120 (D. Mass. 2005) (limiting firearms comparison testimony to conclusions expressing similarities and, interestingly, analogizing the problem of observer bias of a firearms examiner given only a single firearm to examine to the problem of showup eyewitness identifications);
233. United States v. Hines, 55 F. Supp. 2d 62, 67-68 (D. Mass. 1999) (ruling that handwriting examiner was limited to testifying about " similarities" in documents);
234. see also Simon A. Cole, Splitting Hairs? Evaluating 'Split Testimony' as an Approach to the Problem of Forensic Expert Evidence, 33 SIDNEY L. REV. 459 (2011) (evaluating emerging approach by courts restricting testimonial claims of forensic experts);
235. Jennifer L. Mnookin, The Courts, the NAS, and the Future of Forensic Science, 75 BROOK. L. REV. 209, 1242 (2010) (arguing that as an "interim solution" courts limit fingerprint evidence "by restricting it to description of similarities and differences" rather than permit individualization claims);
236. Jennifer L. Mnookin et al., The Need for a Research Culture in the Forensic Sciences, 58 UCLA L. REV. 725, 750 (2011) ("Forensic analysts have often failed to recognize the limits of what conclusions are actually warranted by a given research result.");
237. David M. Siegel et al., The Reliability of Latent Print Individualization: Brief of Amici Curiae submitted on Behalf of Scientists and Scholars by The New England Innocence Project, Commonwealth v. Patterson, 42 CRIM. L. BULL. art. 2 (2006) ("[T]estimony in terms of 'individualization' or 'matches', without the underlying study of the base rates of the characteristics from which such conclusions are ostensibly drawn, or proficiency tests data for examiners, is misleading and fundamentally unsound. This does not mean that testimony detailing the comparison of prints by examiners would have to be excluded.");
238. cf. Simon A. Cole, Where the Rubber Meets the Road: Thinking About Expert Evidence as Expert Testimony, 52 VILL. L. REV. 803, 838 (2007) ("[J]udges and legal scholars need to shift their focus from the admissibility of evidence to control of testimony.").
239. Perry v. New Hampshire, 132 S. Ct. 716, 727 (2012).