The dramatic moment when an eyewitness takes the stand and points to the defendant in the courtroom can be pivotal in a criminal trial. That piece of theater, however compelling to jurors, is staged: it is obvious where the defendant is sitting, and, importantly, the memory of the eyewitness should have been tested before trial using photo arrays or lineups. Such courtroom displays have been accepted for so long that their role in the U.S. Supreme Court’s due process jurisprudence regulating eyewitness identifications has been neglected. The due process test that regulates tens of thousands of eyewitness identifications each year admits at-trial identifications that resulted from suggestive pretrial procedures — long known to increase the dangers that the innocent may be misidentified — if the judge decides that those identifications are otherwise “reliable.” In this Article, I uncover an approach — use of an independent source rule — that has been adopted by the vast majority of courts, but whose importance has not been appreciated. This approach short-circuits the already malleable due process inquiry. Even if a prior lineup was suggestive and illegal, judges will nonetheless allow a subsequent courtroom identification by citing to its supposed “independent source.” This approach to exclusion of eyewitness identifications has it backwards. It is the courtroom identification that should be excluded. In contrast, flaws in prior procedures used to test the eyewitness’s memory should be fully aired before the jury. As efforts to improve eyewitness identification procedures gain traction in response to DNA exonerations and social science research establishing the fragility of eyewitness memory, lawmakers and judges should revisit the entrenched problem of the courtroom identification. If courtroom identifications are not per se excluded in cases with a prior identification, judges may circumvent crucial efforts to safeguard the accuracy of eyewitness procedures.
Brandon L. Garrett, Eyewitnesses and Exclusion, 65 Vanderbilt Law Review 451-506 (2012)