The Dangers of Eyewitness Identification: A Call for Greater State Involvement to Ensure Fundamental Fairness

IntroductionIn 1985, a prosecutor posed the question, "Jennifer, are you abso- lutely sure that Ronald Junior Cotton is the man?"1 Jennifer Thomp- son, a rape victim, answered yes with confidence.2 Because of this iden- tification, Ronald Cotton spent more than ten years in prison for a crime that he did not commit.3 Jennifer Thompson identified a man who she believed was her rapist.4 She identified Mr. Cotton in a photo array, a lineup, and at trial; she was mistaken all three times.5 Later, when she saw her actual rapist sitting in a courtroom, she did not rec- ognize him.6 The judge presiding over Mr. Cotton's trial followed pro- cedures that the Supreme Court has outlined to evaluate the reliability of eyewitness identification testimony and its admissibility.7Jennifer Thompson and Ronald Cotton's story is not unique.8 Eyewitness misidentifications plague the American criminal justice sys- tem.9 In 2012, the U.S. Supreme Court decided Perry v. New Hampshire, its first case on eyewitness identification since 1977, and held that the Due Process Clause does not require a preliminary judicial assessment of the reliability of an identification unless the identification was pro- cured under unnecessarily suggestive circumstances orchestrated by law enforcement.10 Since the Court decided United States v. Wade in 1967, the scientific community has thoroughly researched the reliability of eyewitness identification and highlighted the dangers of misidentifica- tion.11 A number of studies indicate that eyewitness identifications are often unreliable.12 Experts have called for police and judicial reform to counter the frailties inherent in eyewitness identification and ensure fairness at criminal proceedings.13 Under the Due Process Clause of the Fourteenth Amendment, defendants have a right to a fundamentally fair proceeding.14 Unreliable eyewitness identifications undermine this judicial safeguard.15This Note argues that to ensure fundamental fairness and to pro- tect a defendant's due process rights, additional safeguards must be implemented regarding the admissibility of eyewitness identifications.16 The Supreme Court's decision in Perry eliminated due process claims when the police do not suggestively orchestrate an identification pro- cedure.17 Moreover, the Court failed to confront the scientific data highlighting the unreliability of eyewitness identification.18 In light of Perry and the Supreme Court's unwillingness to revisit its eyewitness identification jurisprudence, this Note argues that states should grant greater protections under their own constitutions to exclude unreliable identifications.19 The New Jersey Supreme Court did this in 2011, and other state courts should adopt New Jersey's approach.20Part I of this Note outlines the concept of fundamental fairness guaranteed by the Due Process Clause of the Fourteenth Amendment, its impact on the admissibility of eyewitness identifications, scientific research on eyewitness identification, and past and current trends in state and federal eyewitness identification jurisprudence.21 Part II ana- lyzes the relationship between scientific data, reliability, and eyewitness identification, and identifies two problems with the Supreme Court's approach in Perry.22 Part III then argues that in light of Perry, state courts should interpret their constitutions more liberally than the Four- teenth Amendment to exclude unreliable identifications and imple- ment a test that takes science into account.23 Part III calls for states to adopt the New Jersey Supreme Court's approach, articulated in Hender- son, as the best way to ensure fundamental fairness at trial.24I. The Constitution and Eyewitness IdentificationThis Part discusses the history surrounding the constitutionality of eyewitness identification testimony.25 Section A describes the concept of fundamental fairness embodied in the Due Process Clause of the Four- teenth Amendment.26 Section B describes scientific studies conducted since 1977 that emphasize the unreliability of eyewitness identification through exoneration data and psychological research. …