Judicial gatekeeping of police-generated witness testimony

Journal of Criminal Law and Criminology

Volumn 102, Issue 2, 2012, Pages 329-396

  Thompson, Sandra Guerra ^a  

^a UNIVERSITY OF HOUSTON   (United States)

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EID: 84870282504     PISSN: 00914169     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (347)

1. As of this writing, a total of 300 men have been exonerated by means of DNA evidence. News and Information: Facts on Post-Conviction DNA Exoneration, Innocence Project, http://www.innocenceproject.org/Content/Facts_on_PostConviction_DNA_Exonerations.php (last visited October 10, 2012).
2. 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. 435, 440-41 (2009).
3. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
4. Misleading and false forensic evidence is also a contributing factor in a significant number of wrongful conviction cases. See Understand the Causes: Unreliable or Improper Forensic Science, Innocence Project, http://www.innocenceproject.org/understand/Forensic-Science-Misconduct.php (last visited Jan. 20, 2012).
5. For purposes of this Article, I will refer to three types of evidence-confessions, informant testimony, and eyewitness identification testimony-as "police-generated" evidence. There are clearly other types of testimonial evidence that may be generated by the police, such as alibi-negating witnesses or witnesses offering forensic evidence. This Article only compares three such types of evidence that have received the most attention from scholars and reformers. In addition, to avoid confusion, I do not refer to the persons making the statements that have evidentiary value as "witnesses. " In the case of confessions and informants, it is generally the police interrogator or informant who testifies to the incriminating statements, not the defendant who actually makes the incriminating statements. Thus, the "witness" in the case of confessions or informants is the police officer or informant. With eyewitness identifications, the person making the statements is also the witness in court.
6. 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. 435, 440-41 (2009).
7. 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. 435, 440-41 (2009).
8. 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. 435, 440-41 (2009).
9. Illinois had a unique provision that allowed a trial court to decertify a case as a capital case "if the court finds that the only evidence supporting the defendant's conviction is the uncorroborated testimony of an informant witness... concerning the confession or admission of the defendant or that the sole evidence against the defendant is a single eyewitness or single accomplice without any other corroborating evidence. " 720 Ill. Comp. Stat. 5/9-1(h-5) (2011). The provision is no longer needed in Illinois since the death penalty was recently repealed. See Illinois Pub. Act 096-1543, available at http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=096-1543. Nonetheless, the corroborating evidence requirement provides a useful exemplar. In Maryland, a person may not be sentenced to death based solely on the testimony of eyewitnesses. The State must present the court or jury with (i) biological evidence or DNA evidence that links the defendant to the act of murder.
10. 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. 435, 440-41 (2009).
11. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
12. Concerns about the failures of Daubert in criminal cases and the admission of unreliable forensic evidence abound. See Comm. on Identifying the Needs of the Forensic Science Cmty., Nat'l Research Council of the Nat'l Acads. et al., Strengthening Forensic Science in the United States: A Path Forward (2009) (finding that a wide range of forensic disciplines lack validity) [hereinafter Strengthening Forensic Science].
13. "Surveys and case law have demonstrated that judges have a poor judicial understanding of the Daubert factors, which in many ways requires an unrealistic working knowledge of the philosophy of science. " Edward K. Cheng, Independent Judicial Research in the Daubert Age, 56 Duke L. J. 1263, 1270 (2007).
14. "Surveys and case law have demonstrated that judges have a poor judicial understanding of the Daubert factors, which in many ways requires an unrealistic working knowledge of the philosophy of science. " Edward K. Cheng, Independent Judicial Research in the Daubert Age, 56 Duke L. J. 1263, 1270 (2007).
15. Daubert, 509 U.S. at 592-93.
16. Daubert, 509 U.S. at 592-93.
17. Daubert, 509 U.S. at 592-93.
18. Daubert, 509 U.S. at 592-93.
19. Daubert, 509 U.S. at 592-93.
20. Daubert, 509 U.S. at 592-93.
21. Daubert, 509 U.S. at 592-93.
22. Fed. R. Evid. 102.
23. See generally James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries 25-44 (2006) (discussing the fact-finding role of the jury and the role of the judge in determining questions of law).
24. See generally James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries 25-44 (2006) (discussing the fact-finding role of the jury and the role of the judge in determining questions of law).
25. See generally James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries 25-44 (2006) (discussing the fact-finding role of the jury and the role of the judge in determining questions of law).
26. Oliver Wendell Holmes, Jr., argued in his classic work, The Common Law, that even though facts "do not often repeat themselves in practice, " yet "cases with comparatively small variations from each other do, " and when this happens, "A judge who has long sat at nisi prius ought gradually to acquire a fund of experience which enables him to represent the common sense of the community in ordinary instances far better than an average jury. "
27. See generally James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries 25-44 (2006) (discussing the fact-finding role of the jury and the role of the judge in determining questions of law).
28. See generally James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries 25-44 (2006) (discussing the fact-finding role of the jury and the role of the judge in determining questions of law).
29. See generally James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries 25-44 (2006) (discussing the fact-finding role of the jury and the role of the judge in determining questions of law).
30. See generally James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries 25-44 (2006) (discussing the fact-finding role of the jury and the role of the judge in determining questions of law).
31. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
32. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
33. See D. Michael Risinger, Tragic Consequences of Deadly Dilemmas: A Response to Allen and Laudan, 40 Seton Hall L. Rev. 991, 1020 (2010) ("Viewing the state as having more responsibility for harm done directly to the immediate subjects of its acts than for harm done indirectly by its failures to act [i.e., to convict the guilty], or by its choices to act one way rather than another, has a long tradition, especially in situations where the latter harm is done by the subsequent choice of an independent human agent. ").
34. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993) (explaining the trial judge's responsibility to assess expert scientific testimony under 104(a).
35. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993) (explaining the trial judge's responsibility to assess expert scientific testimony under 104(a).
36. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993) (explaining the trial judge's responsibility to assess expert scientific testimony under 104(a).
37. See Sandra Guerra Thompson, Eyewitness Identifications and State Courts as Guardians Against Wrongful Conviction, 7 Ohio St. J. Crim. L. 603, 621-31 (2010) [hereinafter Eyewitness Identifications].
38. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
39. See Dan Simon, The Limited Diagnosticity of Criminal Trials, 64 Vand. L. Rev. 143, 147 (2011).
40. See Russell D. Covey, Mass Exoneration Data and the Causes of Wrongful Convictions (2011) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1881767.
41. See Dan Simon, The Limited Diagnosticity of Criminal Trials, 64 Vand. L. Rev. 143, 147 (2011).
42. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
43. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
44. New concerns about protecting the innocent have caused several scholars to write critically of the American adversarial system of law enforcement. See, e.g., Mary Sue Backus, The Adversary System is Dead.
45. See Dan Simon, The Limited Diagnosticity of Criminal Trials, 64 Vand. L. Rev. 143, 147 (2011).
46. For the definitive article on the topic, see Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wisc. L. Rev. 291.
47. For the definitive article on the topic, see Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wisc. L. Rev. 291.
48. For the definitive article on the topic, see Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wisc. L. Rev. 291.
49. For the definitive article on the topic, see Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wisc. L. Rev. 291.
50. For the definitive article on the topic, see Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wisc. L. Rev. 291.
51. For the definitive article on the topic, see Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wisc. L. Rev. 291.
52. For the definitive article on the topic, see Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wisc. L. Rev. 291.
53. See Lisa R. Pruitt & Beth A. Colgan, Justice Deserts: Spatial Inequality and Local Funding of Indigent Defense, 52 Ariz. L. Rev. 219, 300-01 (2010).
54. For the definitive article on the topic, see Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wisc. L. Rev. 291.
55. For the definitive article on the topic, see Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wisc. L. Rev. 291.
56. For the definitive article on the topic, see Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wisc. L. Rev. 291.
57. For the definitive article on the topic, see Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wisc. L. Rev. 291.
58. For the definitive article on the topic, see Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wisc. L. Rev. 291.
59. Studies of identification practices show that the police generally use these procedures only after they have targeted a particular person as a "suspect. " See, e.g., Bruce W. Behrman & Sherrie L. Davey, Eyewitness Identification in Actual Criminal Cases: An Archival Analysis, 25 Law & Hum. Behav. 475, 475-478 (2001) (providing archival analysis of real cases and various factors that affected "suspect identification rates, " or rates at which eyewitnesses identified persons who police had singled out as suspects).
60. Sandra Guerra Thompson, What Price Justice? The Importance of Costs to Eyewitness Identification Reform, 41 Tex. Tech L. Rev. 33, 53-54 (2008) [hereinafter What Price Justice?] (noting that show-ups may be the most commonly used identification procedure).
61. A person is considered to be in police "custody" if that person "has been... deprived of his freedom of action in any significant way. " Miranda v. Arizona, 384 U.S. 436, 444 (1966).
62. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
63. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
64. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
65. Typically, the police use photo arrays or live lineups as a means of having an eyewitness confirm the identification of a suspect who is already in police custody or who is a target of the investigation. Scientists analogize these identification procedures to scientific experiments. In these experiments, "[p]olice investigators are like researchers who have a hypothesis (i.e., that the suspect is the culprit), the officer conducting the lineup is like an experimenter who administers the materials and 'runs,' the eyewitness through the procedure.... " Gary L. Wells & Eric P. Seelau, Eyewitness Identification: Psychological Research and Legal Policy on Lineups, 1 Psychol. Pub. Pol'y & L. 765-67 (1995).
66. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
67. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
68. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
69. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
70. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
71. Mentally ill persons may confess falsely even without the use of coercive or suggestive practices. Regardless of the reason, it is clear that the confessions of the mentally ill are not generally reliable. See Claudio Salas, Note: The Case for Excluding the Criminal Confessions of the Mentally Ill, 2004 Yale J.L. & Human. 243, 268-69 (arguing for exclusion of all confessions by the mentally ill or mentally disabled persons who are not capable of comprehending the Miranda warnings).
72. See generally Morgan Cloud et al., Words Without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects, 69 U. Chi. L. Rev. 495 (2002) (presenting empirical study showing that mentally retarded suspects do not comprehend the Miranda warnings that are designed to protect them and that they have a proclivity to confess falsely).
73. Joshua A. Tepfer, Laura H. Nirider & Lynda M. Tricarico, Arresting Development: Convictions of Innocent Youth, 62 Rutgers L. Rev. 887, 904-05 (2010). The study of 103 DNA exonerees who were juveniles showed that while 31.1% of all youth exonerees falsely confessed, only 17.8% of the 214 adult exonerees had falsely confessed. In addition, the study found that the incidence of false confessions increases as the age of the child decreases.
74. See Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051, 1064 (2010).
75. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
76. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
77. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
78. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
79. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
80. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
81. See Andrea L. Dennis, Collateral Damage? Juvenile Snitches in America's "Wars" on Drugs, Crime, and Gangs, 46 Am. Crim. L. Rev. 1145, 1171-75, 1181-83 (2009) (addressing the harms and dangers to children from acting as police informants and advocating for an approach that requires government agents to adopt the best-interests-of-the-child standard when using a child as an informant).
82. See Andrea L. Dennis, Collateral Damage? Juvenile Snitches in America's "Wars" on Drugs, Crime, and Gangs, 46 Am. Crim. L. Rev. 1145, 1171-75, 1181-83 (2009) (addressing the harms and dangers to children from acting as police informants and advocating for an approach that requires government agents to adopt the best-interests-of-the-child standard when using a child as an informant).
83. Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.2(b), at 289 (4th ed. 2004).
84. Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.2(b), at 289 (4th ed. 2004).
85. Sandra Guerra Thompson, What Price Justice? The Importance of Costs to Eyewitness Identification Reform, 41 Tex. Tech L. Rev. 33, 53-54 (2008) [hereinafter What Price Justice?] (noting that show-ups may be the most commonly used identification procedure).
86. See Amy Bradfield Douglass & Nancy Steblay, Memory Distortion in Eyewitnesses: A Meta-Analysis of the Post-Identification Feedback Effect, 20 Applied Cognitive Psychol. 859, 860 (2006).
87. Lise Olsen, Did Texas Execute an Innocent Man? The Cantu Case: Death and Doubt; Eyewitness Says He Felt Influenced by Police To Identify the Teen as the Killer, Hous. Chron., Nov. 20, 2005, at A1.
88. Lise Olsen, Did Texas Execute an Innocent Man? The Cantu Case: Death and Doubt; Eyewitness Says He Felt Influenced by Police To Identify the Teen as the Killer, Hous. Chron., Nov. 20, 2005, at A1.
89. Lise Olsen, Did Texas Execute an Innocent Man? The Cantu Case: Death and Doubt; Eyewitness Says He Felt Influenced by Police To Identify the Teen as the Killer, Hous. Chron., Nov. 20, 2005, at A1.
90. Lise Olsen, Did Texas Execute an Innocent Man? The Cantu Case: Death and Doubt; Eyewitness Says He Felt Influenced by Police To Identify the Teen as the Killer, Hous. Chron., Nov. 20, 2005, at A1.
91. Lise Olsen, Did Texas Execute an Innocent Man? The Cantu Case: Death and Doubt; Eyewitness Says He Felt Influenced by Police To Identify the Teen as the Killer, Hous. Chron., Nov. 20, 2005, at A1.
92. Lise Olsen, Did Texas Execute an Innocent Man? The Cantu Case: Death and Doubt; Eyewitness Says He Felt Influenced by Police To Identify the Teen as the Killer, Hous. Chron., Nov. 20, 2005, at A1.
93. Guerra v. Collins, 916 F. Supp. 620, 637 (S.D. Tex. 1995), aff'd sub nom. Guerra v. Johnson, 90 F.3d 1075 (5th Cir. 1996).
94. Guerra v. Collins, 916 F. Supp. 620, 637 (S.D. Tex. 1995), aff'd sub nom. Guerra v. Johnson, 90 F.3d 1075 (5th Cir. 1996).
95. Guerra v. Collins, 916 F. Supp. 620, 637 (S.D. Tex. 1995), aff'd sub nom. Guerra v. Johnson, 90 F.3d 1075 (5th Cir. 1996).
96. Guerra v. Collins, 916 F. Supp. 620, 637 (S.D. Tex. 1995), aff'd sub nom. Guerra v. Johnson, 90 F.3d 1075 (5th Cir. 1996).
97. Guerra v. Collins, 916 F. Supp. 620, 637 (S.D. Tex. 1995), aff'd sub nom. Guerra v. Johnson, 90 F.3d 1075 (5th Cir. 1996).
98. Guerra v. Collins, 916 F. Supp. 620, 637 (S.D. Tex. 1995), aff'd sub nom. Guerra v. Johnson, 90 F.3d 1075 (5th Cir. 1996).
99. Guerra v. Collins, 916 F. Supp. 620, 637 (S.D. Tex. 1995), aff'd sub nom. Guerra v. Johnson, 90 F.3d 1075 (5th Cir. 1996).
100. See Garrett, Characteristics of Eyewitness Misidentifications in DNA Exonerees' Trials, in Convicting the Innocent: Where Criminal Prosecutions Go Wrong, available at http://www.law.virginia.edu/pdf/faculty/garrett/convicting_the_innocent/garrett_eyewitness_appendix.pdf. (cases include Habib Abdal, Ulyssess Rodriguez Charles, Thomas Doswell, Jerry Lee Evans, and Michael Evans, among others).
101. See Garrett, Characteristics of Eyewitness Misidentifications in DNA Exonerees' Trials, in Convicting the Innocent: Where Criminal Prosecutions Go Wrong, available at http://www.law.virginia.edu/pdf/faculty/garrett/convicting_the_innocent/garrett_eyewitness_appendix.pdf. (cases include Habib Abdal, Ulyssess Rodriguez Charles, Thomas Doswell, Jerry Lee Evans, and Michael Evans, among others).
102. See Garrett, Characteristics of Eyewitness Misidentifications in DNA Exonerees' Trials, in Convicting the Innocent: Where Criminal Prosecutions Go Wrong, available at http://www.law.virginia.edu/pdf/faculty/garrett/convicting_the_innocent/garrett_eyewitness_appendix.pdf. (cases include Habib Abdal, Ulyssess Rodriguez Charles, Thomas Doswell, Jerry Lee Evans, and Michael Evans, among others).
103. See Garrett, Characteristics of Eyewitness Misidentifications in DNA Exonerees' Trials, in Convicting the Innocent: Where Criminal Prosecutions Go Wrong, available at http://www.law.virginia.edu/pdf/faculty/garrett/convicting_the_innocent/garrett_eyewitness_appendix.pdf. (cases include Habib Abdal, Ulyssess Rodriguez Charles, Thomas Doswell, Jerry Lee Evans, and Michael Evans, among others).
104. See Garrett, Characteristics of Eyewitness Misidentifications in DNA Exonerees' Trials, in Convicting the Innocent: Where Criminal Prosecutions Go Wrong, available at http://www.law.virginia.edu/pdf/faculty/garrett/convicting_the_innocent/garrett_eyewitness_appendix.pdf. (cases include Habib Abdal, Ulyssess Rodriguez Charles, Thomas Doswell, Jerry Lee Evans, and Michael Evans, among others).
105. See Garrett, Characteristics of Eyewitness Misidentifications in DNA Exonerees' Trials, in Convicting the Innocent: Where Criminal Prosecutions Go Wrong, available at http://www.law.virginia.edu/pdf/faculty/garrett/convicting_the_innocent/garrett_eyewitness_appendix.pdf. (cases include Habib Abdal, Ulyssess Rodriguez Charles, Thomas Doswell, Jerry Lee Evans, and Michael Evans, among others).
106. See Garrett, Characteristics of Eyewitness Misidentifications in DNA Exonerees' Trials, in Convicting the Innocent: Where Criminal Prosecutions Go Wrong, available at http://www.law.virginia.edu/pdf/faculty/garrett/convicting_the_innocent/garrett_eyewitness_appendix.pdf. (cases include Habib Abdal, Ulyssess Rodriguez Charles, Thomas Doswell, Jerry Lee Evans, and Michael Evans, among others).
107. Guerra v. Collins, 916 F. Supp. 620, 624 (S.D. Tex. 1995), aff'd sub nom. Guerra v. Johnson, 90 F.3d 1075 (5th Cir. 1996).
108. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
109. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
110. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
111. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
112. It is obvious that a person's physical and mental condition is affected by intoxicants and some medications such as painkillers. Courts nonetheless have allowed witnesses who observed assailants under these conditions to give eyewitness testimony. See Sandra Guerra Thompson, Judicial Blindness to Eyewitness Misidentification, 93 Marq. L. Rev. 639, 653 (2009) [hereinafter Judicial Blindness].
113. Typically, the police use photo arrays or live lineups as a means of having an eyewitness confirm the identification of a suspect who is already in police custody or who is a target of the investigation. Scientists analogize these identification procedures to scientific experiments. In these experiments, "[p]olice investigators are like researchers who have a hypothesis (i.e., that the suspect is the culprit), the officer conducting the lineup is like an experimenter who administers the materials and 'runs,' the eyewitness through the procedure.... " Gary L. Wells & Eric P. Seelau, Eyewitness Identification: Psychological Research and Legal Policy on Lineups, 1 Psychol. Pub. Pol'y & L. 765-67 (1995).
114. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
115. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
116. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
117. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
118. See John Kleinig, The Ethics of Policing 224-29 (1996) (describing the protective culture within police departments which leads to constant attempts to circumvent mandates imposed from outside the organization).
119. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
120. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
121. Sandra Guerra Thompson, What Price Justice? The Importance of Costs to Eyewitness Identification Reform, 41 Tex. Tech L. Rev. 33, 53-54 (2008) [hereinafter What Price Justice?] (noting that show-ups may be the most commonly used identification procedure).
122. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
123. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
124. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
125. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
126. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
127. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
128. Sandra Guerra Thompson, What Price Justice? The Importance of Costs to Eyewitness Identification Reform, 41 Tex. Tech L. Rev. 33, 53-54 (2008) [hereinafter What Price Justice?] (noting that show-ups may be the most commonly used identification procedure).
129. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
130. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
131. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
132. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
133. This author and a few others addressed the admissibility of identification testimony relating solely to reliability and urged procedural reforms. See, e.g., Noah Clements, Flipping a Coin: A Solution for the Inherent Unreliability of Eyewitness Identification Testimony, 40 Ind. L. Rev. 271 (2007) (proposing blanket exclusion of eyewitness identification testimony in criminal cases due to unreliability).
134. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
135. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
136. The most comprehensive and influential reports by law enforcement pertain to eyewitness identifications. They include: Nat'l Inst. of Justice, U.S. Dep't of Justice, Eyewitness Evidence: A Guide for Law Enforcement (1999), available at http://www.ncjrs.gov/pdffiles1/nij/178240.pdf.
137. See Reforms by State, Innocence Project, http://www.innocenceproject.org/news/LawView3.php (providing links to state legislation on eyewitness identification reforms).
138. See Reforms by State, Innocence Project, http://www.innocenceproject.org/news/LawView3.php (providing links to state legislation on eyewitness identification reforms).
139. See, e.g., Reforms by State, Innocence Project, http://www.innocenceproject.org/news/LawView5.php (last visited Jan. 24, 2012) (showing only eleven states with state-wide eyewitness identification reforms).
140. It is obvious that a person's physical and mental condition is affected by intoxicants and some medications such as painkillers. Courts nonetheless have allowed witnesses who observed assailants under these conditions to give eyewitness testimony. See Sandra Guerra Thompson, Judicial Blindness to Eyewitness Misidentification, 93 Marq. L. Rev. 639, 653 (2009) [hereinafter Judicial Blindness].
141. Sandra Guerra Thompson, What Price Justice? The Importance of Costs to Eyewitness Identification Reform, 41 Tex. Tech L. Rev. 33, 53-54 (2008) [hereinafter What Price Justice?] (noting that show-ups may be the most commonly used identification procedure).
142. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
143. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
144. Sandra Guerra Thompson, What Price Justice? The Importance of Costs to Eyewitness Identification Reform, 41 Tex. Tech L. Rev. 33, 53-54 (2008) [hereinafter What Price Justice?] (noting that show-ups may be the most commonly used identification procedure).
145. Typically, the police use photo arrays or live lineups as a means of having an eyewitness confirm the identification of a suspect who is already in police custody or who is a target of the investigation. Scientists analogize these identification procedures to scientific experiments. In these experiments, "[p]olice investigators are like researchers who have a hypothesis (i.e., that the suspect is the culprit), the officer conducting the lineup is like an experimenter who administers the materials and 'runs,' the eyewitness through the procedure.... " Gary L. Wells & Eric P. Seelau, Eyewitness Identification: Psychological Research and Legal Policy on Lineups, 1 Psychol. Pub. Pol'y & L. 765-67 (1995).
146. Miranda v. Arizona, 384 U.S. 436, 444 (1966).
147. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
148. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
149. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
150. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
151. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
152. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
153. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
154. One may view the Supreme Court's recognition of a right to counsel at lineups as an attempt to provide a prophylactic remedy for possible police suggestion. See United States v. Wade, 388 U.S. 218, 236-38 (1967).
155. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
156. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
157. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
158. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
159. Sandra Guerra Thompson, What Price Justice? The Importance of Costs to Eyewitness Identification Reform, 41 Tex. Tech L. Rev. 33, 53-54 (2008) [hereinafter What Price Justice?] (noting that show-ups may be the most commonly used identification procedure).
160. Sandra Guerra Thompson, What Price Justice? The Importance of Costs to Eyewitness Identification Reform, 41 Tex. Tech L. Rev. 33, 53-54 (2008) [hereinafter What Price Justice?] (noting that show-ups may be the most commonly used identification procedure).
161. See Russell D. Covey, Mass Exoneration Data and the Causes of Wrongful Convictions (2011) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1881767.
162. See Russell D. Covey, Mass Exoneration Data and the Causes of Wrongful Convictions (2011) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1881767.
163. See Russell D. Covey, Mass Exoneration Data and the Causes of Wrongful Convictions (2011) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1881767.
164. Sandra Guerra Thompson, What Price Justice? The Importance of Costs to Eyewitness Identification Reform, 41 Tex. Tech L. Rev. 33, 53-54 (2008) [hereinafter What Price Justice?] (noting that show-ups may be the most commonly used identification procedure).
165. Sandra Guerra Thompson, What Price Justice? The Importance of Costs to Eyewitness Identification Reform, 41 Tex. Tech L. Rev. 33, 53-54 (2008) [hereinafter What Price Justice?] (noting that show-ups may be the most commonly used identification procedure).
166. See generally Clifford R. Shaw & Henry D. McKay, Juvenile Delinquency in Urban Areas (1942).
167. The ABA Criminal Justice Section's proposals address all three types of evidence. The report addresses the discretion exercised by courts to allow testimony by experts on eyewitness identification and to give cautionary jury instructions on identifications and jailhouse informants.
168. See Reforms by State, Innocence Project, http://www.innocenceproject.org/news/LawView3.php (providing links to state legislation on eyewitness identification reforms).
169. See Sandra Guerra Thompson, Eyewitness Identifications and State Courts as Guardians Against Wrongful Conviction, 7 Ohio St. J. Crim. L. 603, 621-31 (2010) [hereinafter Eyewitness Identifications].
170. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
171. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
172. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
173. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
174. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
175. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
176. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
177. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
178. It is obvious that a person's physical and mental condition is affected by intoxicants and some medications such as painkillers. Courts nonetheless have allowed witnesses who observed assailants under these conditions to give eyewitness testimony. See Sandra Guerra Thompson, Judicial Blindness to Eyewitness Misidentification, 93 Marq. L. Rev. 639, 653 (2009) [hereinafter Judicial Blindness].
179. See also Margery Malkin Koosed, Reforming Eyewitness Identification Law and Practices to Protect the Innocent, 42 Creighton L. Rev. 595, 633-39 (2009) (addressing the Maryland identification law, as well as efforts to adopt similar corroboration requirements in Illinois, Massachusetts, and Britain).
180. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
181. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
182. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
183. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
184. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
185. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
186. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
187. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
188. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
189. Paul Marcus, It's Not Just About Miranda: Determining the Voluntariness of Confessions in Criminal Prosecutions, 40 Val. U. L. Rev. 601, 609-11 (2006) (discussing Colorado v. Connelly, 479 U.S. 157, 163 (1986).
190. Paul Marcus, It's Not Just About Miranda: Determining the Voluntariness of Confessions in Criminal Prosecutions, 40 Val. U. L. Rev. 601, 609-11 (2006) (discussing Colorado v. Connelly, 479 U.S. 157, 163 (1986).
191. Paul Marcus, It's Not Just About Miranda: Determining the Voluntariness of Confessions in Criminal Prosecutions, 40 Val. U. L. Rev. 601, 609-11 (2006) (discussing Colorado v. Connelly, 479 U.S. 157, 163 (1986).
192. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
193. Paul Marcus, It's Not Just About Miranda: Determining the Voluntariness of Confessions in Criminal Prosecutions, 40 Val. U. L. Rev. 601, 609-11 (2006) (discussing Colorado v. Connelly, 479 U.S. 157, 163 (1986).
194. Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
195. See Sandra Guerra Thompson, Eyewitness Identifications and State Courts as Guardians Against Wrongful Conviction, 7 Ohio St. J. Crim. L. 603, 621-31 (2010) [hereinafter Eyewitness Identifications].
196. See Sandra Guerra Thompson, Eyewitness Identifications and State Courts as Guardians Against Wrongful Conviction, 7 Ohio St. J. Crim. L. 603, 621-31 (2010) [hereinafter Eyewitness Identifications].
197. See Sandra Guerra Thompson, Eyewitness Identifications and State Courts as Guardians Against Wrongful Conviction, 7 Ohio St. J. Crim. L. 603, 621-31 (2010) [hereinafter Eyewitness Identifications].
198. See Sandra Guerra Thompson, Eyewitness Identifications and State Courts as Guardians Against Wrongful Conviction, 7 Ohio St. J. Crim. L. 603, 621-31 (2010) [hereinafter Eyewitness Identifications].
199. Here I refer to "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal,... and the length of time between the crime and the confrontation. " Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
200. Biggers, 409 U.S. at 199.
201. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
202. See Sandra Guerra Thompson, Eyewitness Identifications and State Courts as Guardians Against Wrongful Conviction, 7 Ohio St. J. Crim. L. 603, 621-31 (2010) [hereinafter Eyewitness Identifications].
203. See Sandra Guerra Thompson, Eyewitness Identifications and State Courts as Guardians Against Wrongful Conviction, 7 Ohio St. J. Crim. L. 603, 621-31 (2010) [hereinafter Eyewitness Identifications].
204. See Sandra Guerra Thompson, Eyewitness Identifications and State Courts as Guardians Against Wrongful Conviction, 7 Ohio St. J. Crim. L. 603, 621-31 (2010) [hereinafter Eyewitness Identifications].
205. See Sandra Guerra Thompson, Eyewitness Identifications and State Courts as Guardians Against Wrongful Conviction, 7 Ohio St. J. Crim. L. 603, 621-31 (2010) [hereinafter Eyewitness Identifications].
206. To confabulate means to "fill in the details from the imagination in order to make an answer more coherent and complete. " Rock v. Arkansas, 483 U.S. 44, 60 (1987).
207. See Daniel R. Webert, Note, Are the Courts in a Trance? Approaches to the Admissibility of Hypnotically Enhanced Witness Testimony in Light of Empirical Evidence, 40 Am. Crim. L. Rev. 1301, 1304-06 (2003). One expert testified that hypnotized subjects display the same degree of suggestibility and the same tendency to confabulate or to develop unwarranted confidence in their memories as witnesses who undergo traditional interrogation techniques.
208. Rock, 483 U.S. at 47.
209. Rock, 483 U.S. at 47.
210. Rock, 483 U.S. at 47.
211. Rock, 483 U.S. at 47.
212. Rock, 483 U.S. at 47.
213. Rock, 483 U.S. at 47.
214. Rock, 483 U.S. at 47.
215. Rock, 483 U.S. at 61.
216. See generally Ashish S. Joshi, Taint Hearing: Scientific and Legal Underpinnings, 34 Champion 36 (2010) (arguing that courts should determine the admissibility of child-witness testimony on the basis of Rule 602, which disqualifies a witness who does not testify from personal knowledge).
217. See Russell D. Covey, Mass Exoneration Data and the Causes of Wrongful Convictions (2011) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1881767.
218. See Stephen J. Ceci & Richard D. Friedman, The Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell L. Rev. 33, 71 (2000) (summarizing data showing a broad consensus that young children are highly suggestible and vulnerable to strongly suggestive questioning).
219. See Myrna S. Raeder, Distrusting Young Children Who Allege Sexual Abuse in Criminal and Maltreatment Cases: Why Stereotypes Don't Die and Ways to Facilitate Child Testimony, 16 Widener L. Rev. 239, 242-46 (2010) (addressing changes to protocols that have eliminated suggestive questioning of children and highlighting research that refutes other studies on the unreliability or suggestibility of young children).
220. See generally Ashish S. Joshi, Taint Hearing: Scientific and Legal Underpinnings, 34 Champion 36 (2010) (arguing that courts should determine the admissibility of child-witness testimony on the basis of Rule 602, which disqualifies a witness who does not testify from personal knowledge).
221. See generally Ashish S. Joshi, Taint Hearing: Scientific and Legal Underpinnings, 34 Champion 36 (2010) (arguing that courts should determine the admissibility of child-witness testimony on the basis of Rule 602, which disqualifies a witness who does not testify from personal knowledge).
222. See generally Ashish S. Joshi, Taint Hearing: Scientific and Legal Underpinnings, 34 Champion 36 (2010) (arguing that courts should determine the admissibility of child-witness testimony on the basis of Rule 602, which disqualifies a witness who does not testify from personal knowledge).
223. See generally Ashish S. Joshi, Taint Hearing: Scientific and Legal Underpinnings, 34 Champion 36 (2010) (arguing that courts should determine the admissibility of child-witness testimony on the basis of Rule 602, which disqualifies a witness who does not testify from personal knowledge).
224. See Stephen J. Ceci & Richard D. Friedman, The Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell L. Rev. 33, 71 (2000) (summarizing data showing a broad consensus that young children are highly suggestible and vulnerable to strongly suggestive questioning).
225. See generally Myrna S. Raeder, Finding the Proper Balance in Hearsay Policy: The Uniform Rules Attempt to Stem the Hearsay Tide in Criminal Cases Without Prohibiting All Nontraditional Hearsay, 54 Okla. L. Rev. 631, 634, 639-41 (2001) (arguing that courts have read hearsay exceptions like excited utterances and medical statements in order to allow children's statements to be heard and advocating for the Uniform Rules of Evidence approach, which provides better guidance to courts and better assures trustworthiness).
226. See generally Myrna S. Raeder, Finding the Proper Balance in Hearsay Policy: The Uniform Rules Attempt to Stem the Hearsay Tide in Criminal Cases Without Prohibiting All Nontraditional Hearsay, 54 Okla. L. Rev. 631, 634, 639-41 (2001) (arguing that courts have read hearsay exceptions like excited utterances and medical statements in order to allow children's statements to be heard and advocating for the Uniform Rules of Evidence approach, which provides better guidance to courts and better assures trustworthiness).
227. Other authors have noted the apparent bias in admitting prosecution evidence and excluding defense evidence. See, e.g., Yvette J. Bessent, Not So Fast: Admissibility of Polygraph Evidence and Repressed Memory Evidence When Offered by the Accused, 55 U. Miami L. Rev. 975, 975-76 (2001) (finding a "strong indication" that admittance depends on which party seeks to offer the evidence and that courts admit polygraph evidence when offered by the prosecution but exclude it when offered by the defense).
228. Other authors have noted the apparent bias in admitting prosecution evidence and excluding defense evidence. See, e.g., Yvette J. Bessent, Not So Fast: Admissibility of Polygraph Evidence and Repressed Memory Evidence When Offered by the Accused, 55 U. Miami L. Rev. 975, 975-76 (2001) (finding a "strong indication" that admittance depends on which party seeks to offer the evidence and that courts admit polygraph evidence when offered by the prosecution but exclude it when offered by the defense).
229. A defendant in a criminal case ostensibly enjoys a special due process right to offer evidence, deriving from the Compulsory Process or Confrontation Clauses of the Sixth Amendment. See Holmes v. South Carolina, 547 U.S. 319, 324 (2006).
230. Other authors have noted the apparent bias in admitting prosecution evidence and excluding defense evidence. See, e.g., Yvette J. Bessent, Not So Fast: Admissibility of Polygraph Evidence and Repressed Memory Evidence When Offered by the Accused, 55 U. Miami L. Rev. 975, 975-76 (2001) (finding a "strong indication" that admittance depends on which party seeks to offer the evidence and that courts admit polygraph evidence when offered by the prosecution but exclude it when offered by the defense).
231. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
232. As offered by the prosecution, the informant's testimony about the defendant's own statement is admissible under the hearsay rules as an "[o]pposing [p]arty's [s]tatement. " See Fed. R. Evid. 801(d)(2)(A).
233. See Fed. R. Evid. 804(b)(3)(B).
234. The rules considered by the Court over the years vary from categorical exclusion of certain types of defense evidence to rules that require certain guarantees of trustworthiness for the evidence to be admitted. See Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973) (holding that a defendant's right to present a defense is violated by hearsay rules that combined to exclude defense witnesses who would testify to a third-party's confession and prevented the defense from cross-examining that same third party).
235. For the definitive article on the topic, see Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wisc. L. Rev. 291.
236. Other authors have noted the apparent bias in admitting prosecution evidence and excluding defense evidence. See, e.g., Yvette J. Bessent, Not So Fast: Admissibility of Polygraph Evidence and Repressed Memory Evidence When Offered by the Accused, 55 U. Miami L. Rev. 975, 975-76 (2001) (finding a "strong indication" that admittance depends on which party seeks to offer the evidence and that courts admit polygraph evidence when offered by the prosecution but exclude it when offered by the defense).
237. See D. Michael Risinger, Tragic Consequences of Deadly Dilemmas: A Response to Allen and Laudan, 40 Seton Hall L. Rev. 991, 1020 (2010) ("Viewing the state as having more responsibility for harm done directly to the immediate subjects of its acts than for harm done indirectly by its failures to act [i.e., to convict the guilty], or by its choices to act one way rather than another, has a long tradition, especially in situations where the latter harm is done by the subsequent choice of an independent human agent. ").
238. See D. Michael Risinger, Tragic Consequences of Deadly Dilemmas: A Response to Allen and Laudan, 40 Seton Hall L. Rev. 991, 1020 (2010) ("Viewing the state as having more responsibility for harm done directly to the immediate subjects of its acts than for harm done indirectly by its failures to act [i.e., to convict the guilty], or by its choices to act one way rather than another, has a long tradition, especially in situations where the latter harm is done by the subsequent choice of an independent human agent. ").
239. For the definitive article on the topic, see Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wisc. L. Rev. 291.
240. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
241. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
242. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
243. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
244. 27 A.3d 872 (N.J. 2011).
245. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
246. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
247. Henderson, 27 A.3d at 915, 918-19 (making this argument in the limited context of identification testimony).
248. Henderson, 27 A.3d at 915, 918-19 (making this argument in the limited context of identification testimony).
249. 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. 435, 440-41 (2009).
250. See generally Stephanos Bibas et al., New Perspectives on Brady and Other Disclosure Obligations: Report of the Working Groups on Best Practices, 31 Cardozo L. Rev. 1961 (2010) (reporting on the recommendations of working groups of academics, judges, social science experts, and practitioners regarding best practices for criminal discovery).
251. See generally Stephanos Bibas et al., New Perspectives on Brady and Other Disclosure Obligations: Report of the Working Groups on Best Practices, 31 Cardozo L. Rev. 1961 (2010) (reporting on the recommendations of working groups of academics, judges, social science experts, and practitioners regarding best practices for criminal discovery).
252. See, e.g., Henderson, 27 A.3d at 923 (noting that by expanding upon the factors courts should consider when reviewing the admissibility of eyewitness identifications, the court had effectively broadened the defense right to pretrial discovery).
253. For the definitive article on the topic, see Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wisc. L. Rev. 291.
254. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
255. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
256. See Fed. R. Evid. 104(c).
257. See Fed. R. Evid. 104(c)(3).
258. See Fed. R. Evid. 104(c)(3).
259. See Fed. R. Evid. 104(c)(3).
260. Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579 (1993).
261. Fed. R. Evid. 702.
262. Daubert, 509 U.S. at 589-93.
263. Daubert, 509 U.S. at 589-93.
264. Daubert, 509 U.S. at 594-95.
265. Daubert, 509 U.S. at 594-95.
266. Daubert, 509 U.S. at 594-95.
267. Lay witnesses are defined as all witnesses who are not expert witnesses. See Fed. R. Evid. 701. In the common parlance of trial practice, these are considered "fact witnesses" in that they provide the testimony proving the facts of the case.
268. See Fed. R. Evid. 701.
269. See Fed. R. Evid. 602.
270. The Advisory Committee's Notes contemplated that statements of identity and other estimates of matters such as size, weight, and distance would normally be admissible as opinions under Rule 701. See Fed. R. Evid. 701 advisory committee's note (2000 Amendment).
271. State v. Chen, 27 A.3d 930, 937 (N.J. 2011).
272. Aviva Orenstein, Deviance, Due Process, and the False Promise of Federal Rule of Evidence 403, 90 Cornell L. Rev. 1487, 1512 (2005).
273. Aviva Orenstein, Deviance, Due Process, and the False Promise of Federal Rule of Evidence 403, 90 Cornell L. Rev. 1487, 1512 (2005).
274. See McCormick on Evidence, § 185 at 279 (John W. Strong ed., 5th ed. 1999).
275. Aviva Orenstein, Deviance, Due Process, and the False Promise of Federal Rule of Evidence 403, 90 Cornell L. Rev. 1487, 1512 (2005).
276. Fed. R. Evid. 102.
277. See Fed. R. Evid. 403 advisory committee's note ("In reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction. ").
278. See Fed. R. Evid. 801(c).
279. See Fed. R. Evid. 801(d)(2)(A).
280. See Fed. R. Evid. 801(d)(1)(C).
281. See Fed. R. Evid. 801(c) ("'Hearsay' means a statement that: (1) the declarant does not make while testifying at the current trial or hearing.
282. See Fed. R. Evid. 801(c) ("'Hearsay' means a statement that: (1) the declarant does not make while testifying at the current trial or hearing.
283. See McCormick on Evidence, § 185 at 279 (John W. Strong ed., 5th ed. 1999).
284. See McCormick on Evidence, § 185 at 279 (John W. Strong ed., 5th ed. 1999).
285. See McCormick on Evidence, § 185 at 279 (John W. Strong ed., 5th ed. 1999).
286. See McCormick on Evidence, § 185 at 279 (John W. Strong ed., 5th ed. 1999).
287. Aviva Orenstein, Deviance, Due Process, and the False Promise of Federal Rule of Evidence 403, 90 Cornell L. Rev. 1487, 1512 (2005).
288. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
289. See generally Brandon L. Garrett, Eyewitnesses and Exclusion, 65 Vand. L. Rev. 451, 462-63 (2012) (discussing the traditional preference for evidence of out-of-court identification, as opposed to in-court identification testimony).
290. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
291. See Fed. R. Evid. 801(d)(1)(C) advisory committee's note.
292. See generally Kenneth A. Deffenbacher et al., Forgetting the Once-Seen Face: Estimating the Strength of an Eyewitness's Memory Representation, 14 J. Experimental Psychol: Applied 139, 142 (2008) (providing a meta-analysis of fifty-three "facial memory studies" showing that memory strength weakens as time passes).
293. See generally Kenneth A. Deffenbacher et al., Forgetting the Once-Seen Face: Estimating the Strength of an Eyewitness's Memory Representation, 14 J. Experimental Psychol: Applied 139, 142 (2008) (providing a meta-analysis of fifty-three "facial memory studies" showing that memory strength weakens as time passes).
294. Aviva Orenstein, Deviance, Due Process, and the False Promise of Federal Rule of Evidence 403, 90 Cornell L. Rev. 1487, 1512 (2005).
295. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
296. See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).
297. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993).
298. 519 U.S. 172, 177-78 (1997).
299. 519 U.S. 172, 177-78 (1997).
300. Cf. General Electric Co. v. Joiner, 522 U.S. 136, 149 (1997) (Breyer, J., concurring) (discussing the importance of judicial gatekeeping in toxic tort cases in order that "courts administer the Federal Rules of Evidence... to achieve the 'end[s]' that the Rules themselves set forth, not only so that proceedings may be 'justly determined,' but also so 'that the truth may be ascertained'").
301. For the definitive article on the topic, see Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wisc. L. Rev. 291.
302. For the definitive article on the topic, see Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wisc. L. Rev. 291.
303. 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. 435, 440-41 (2009).
304. 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. 435, 440-41 (2009).
305. 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. 435, 440-41 (2009).
306. See Iris Blandon-Gitlin, Katheryn Sperry & Richard A. Leo, Jurors Believe Interrogation Tactics Are Not Likely to Elicit False Confessions: Will Expert Testimony Inform Them Otherwise?, 16 Psychol., Crime & L. 1 (2010).
307. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 1003 (2004).
308. Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. Crim. L. & Criminology 429 (1998).
309. On confessions, see Richard A. Leo, Police Interrogation and American Justice 237-68 (2008).
310. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
311. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
312. Rule 104(a) provides: "The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. " Fed. R. Evid. 104(a).
313. See Fed. R. Evid. 803(2).
314. See Fed. R. Evid. 803(2).
315. Fed. R. Evid. 803(2) advisory committee's note.
316. See, e.g., Bugh v. Mitchell, 329 F.3d 496, 504 (6th Cir. 2003).
317. See, e.g., Bugh v. Mitchell, 329 F.3d 496, 504 (6th Cir. 2003).
318. Aviva Orenstein, Deviance, Due Process, and the False Promise of Federal Rule of Evidence 403, 90 Cornell L. Rev. 1487, 1512 (2005).
319. Aviva Orenstein, Deviance, Due Process, and the False Promise of Federal Rule of Evidence 403, 90 Cornell L. Rev. 1487, 1512 (2005).
320. See State v. Henderson, 27 A.3d 872, 920-21 (N.J. 2011).
321. Henderson, 27 A.3d at 921-22.
322. Henderson, 27 A.3d at 921-22.
323. Henderson, 27 A.3d at 921-22.
324. Henderson, 27 A.3d at 921-22.
325. Henderson, 27 A.3d at 921-22.
326. Henderson, 27 A.3d at 921-22.
327. Henderson, 27 A.3d at 922-23.
328. Henderson, 27 A.3d at 922-23.
329. Henderson, 27 A.3d at 922-23.
330. See John Guinther, The Jury in America at xiii (1988) ("Thomas Jefferson and others have seen [the jury] as the public's line of defense against the state when it acts oppressively, and Jefferson, for that reason, once declared that the right to a trial by jury was more precious to the maintenance of a democracy than even the right to vote. ").
331. American Bar Association, Principles for Juries & Jury Trials, princ. 1 & cmt. B, at 1-3 (2005).
332. American Bar Association, Principles for Juries & Jury Trials, princ. 1 & cmt. B, at 1-3 (2005).
333. See Stephen J. Ceci & Richard D. Friedman, The Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell L. Rev. 33, 71 (2000) (summarizing data showing a broad consensus that young children are highly suggestible and vulnerable to strongly suggestive questioning).
334. See Stephen J. Ceci & Richard D. Friedman, The Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell L. Rev. 33, 71 (2000) (summarizing data showing a broad consensus that young children are highly suggestible and vulnerable to strongly suggestive questioning).
335. This Article addresses police informants generally, as opposed to in-custody or "jailhouse" informants, who are the sole focus of some statutes and reform proposals. The problems surrounding the use of police informants are as important for those not in custody, and perhaps even more so. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 177-78 (2009).
336. See Sandra Guerra Thompson, Eyewitness Identifications and State Courts as Guardians Against Wrongful Conviction, 7 Ohio St. J. Crim. L. 603, 621-31 (2010) [hereinafter Eyewitness Identifications].
337. New concerns about protecting the innocent have caused several scholars to write critically of the American adversarial system of law enforcement. See, e.g., Mary Sue Backus, The Adversary System is Dead.
338. Creating a coherent body of law with mandatory appellate review was one of the goals that animated the development of the Federal Sentencing Guidelines. See Susan R. Klein & Sandra Guerra Thompson, DOJ's Attack on Federal Judicial "Leniency, " the Supreme Court's Response, and the Future of Criminal Sentencing, 44 Tulsa L. Rev. 519, 521-22 (2009).
339. See Sandra Guerra Thompson, Eyewitness Identifications and State Courts as Guardians Against Wrongful Conviction, 7 Ohio St. J. Crim. L. 603, 621-31 (2010) [hereinafter Eyewitness Identifications].
340. See Sandra Guerra Thompson, Eyewitness Identifications and State Courts as Guardians Against Wrongful Conviction, 7 Ohio St. J. Crim. L. 603, 621-31 (2010) [hereinafter Eyewitness Identifications].
341. See Sandra Guerra Thompson, Eyewitness Identifications and State Courts as Guardians Against Wrongful Conviction, 7 Ohio St. J. Crim. L. 603, 621-31 (2010) [hereinafter Eyewitness Identifications].
342. See generally David R. Dow, America's Prophets: How Judicial Activism Makes America Great (2009).
343. John Council, Witnesses to the Prosecution: Current and Former ADAs Who Helped Convict Exonerated Men Reflect, Tex. Law., June 9, 2008, at 1 (quoting former Dallas prosecutor James Fry).
344. Not surprisingly, wrongly convicted persons receive apologies from judges, mistaken eyewitnesses, and even the true perpetrators. See, e.g., Jennifer Peltz, Imprisoned Man Falsely Accused of Rape Wins Release and Apology from Judge, N.Y. L.J., Dec. 11, 2009, at 1, available at http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202436239965&Imprisoned_Man_Falsely_Accused_of_Rape_Wins_Release_and_Apology_From_Judge.
345. See Deanna Bellandi, Lawmakers: Ill. Governor. to Abolish Death Penalty, ABC News (Mar. 9, 2011), http://abcnews.go.com/US/wireStory?id=13091185 (reporting that Illinois had abolished the death penalty and noting that New Mexico had done the same in 2009).
346. See Deanna Bellandi, Lawmakers: Ill. Governor. to Abolish Death Penalty, ABC News (Mar. 9, 2011), http://abcnews.go.com/US/wireStory?id=13091185 (reporting that Illinois had abolished the death penalty and noting that New Mexico had done the same in 2009).
347. See e.g., N.Y. State Just. Task Force, http://www.nyjusticetaskforce.com/mission.html (last visited Feb. 14, 2012) (including in their mission statement "public safety" and recognizing in their task force description that "[w]rongful convictions... allow the actual perpetrator of the crime to go unpunished").