Document Type
Article
Publication Date
2022
Abstract
Eyewitness evidence crucially depends on visual perception and memory, which are quite fallible. The potential inaccuracy of eyewitness memory has been long demonstrated in cases of wrongful conviction. Today, decades of scientific research on visual perception and memory have identified key causes of error and methods for improving eyewitness performance. Eyewitness evidence, where identification procedures themselves involve experiments, lends itself to scientific research as do few other areas in law. As a result, eyewitness evidence has become a testing ground for the use of science to inform the law. This Article examines how legal actors—state and federal courts, state lawmakers, and police agencies—have responded to this body of research. While Supreme Court rulings have set a constitutional floor, we find that it largely does not inform eyewitness evidence law. State courts have increasingly incorporated eyewitness memory science to decrease misidentifications, as we describe in a detailed fifty-state survey of rulings. Second, we explore how state lawmakers have done still more, in an analysis of twenty-four state statutes regulating eyewitness identification procedures. Third, policing agencies have embraced revised identification practices, including through model policy adopted in twenty-nine states.
Based on these findings, we call into question top-down, stare decisis-bound, and federal court-centric accounts that dominate constitutional criminal procedure. Further, we describe how research continues to progress; a new generation of research promises to further improve the accuracy of eyewitness procedures. While constitutional criminal procedure changes slowly, we expect local actors will continue to harness research developments. We conclude by asking why, in the eyewitness area, criminal investigation and procedure have been so receptive to research. We suggest rather than adopting a precedent-based system, police practices, courts, and statutes employ a scientific framework that can incorporate new discoveries. This account points towards a dynamic framework for the use of science in the legal system.
Citation
Thomas D. Albright & Brandon L. Garrett, The Law and Science of Eyewitness Evidence, 102 Boston University Law Review 511-629 (2022)
Library of Congress Subject Headings
Eyewitness identification, Witnesses, Administration of criminal justice
Included in
Available at: https://scholarship.law.duke.edu/faculty_scholarship/4402
