Irreparable Misidentifications and Reliability: Reassessing the Threshold for Admissibility of Eyewitness Identification

Abstract

To be admitted at trial, an eyewitness identification resulting from a police-conducted procedure must be "reliable" notwithstanding any suggestivity in the identification process, a point emphatically reaffirmed by the Court in Perry v. New Hampshire. While great attention has been focused on what factors are to be weighed in determining reliability, little discussion has been had regarding the level of reliability, i.e., how sure a reviewing judge must be that the identification claim of "that’s the man" is indeed accurate. While the Court in the past has identified this as an "evidentiary" claim, to be evaluated on whether the identification has possible validity, it has simultaneously linked that determination to two criteria – that what must be avoided are "irreparable" mistaken identifications and that the evidence must be such that a jury can intelligently weigh it. Because DNA exonerations and ample research have shown that factfinders – both jurors and judges – often are incapable of discerning when an identification is erroneous, this Article proposes a sliding scale Due Process test for quantifying reliability. Even where a reviewing court must apply the traditional reliability criteria, the sliding scale test requires a suppression court judge to assess – in light of the jurisdiction’s safeguards such as expert testimony and science-based jury instructions – whether a jury will have enough information to intelligently weigh the identification testimony and avoid an irreparable mistaken identification. The fewer tools available to the jury, the more stringent the reliability determination must be to ensure the Due Process mandate.