The LA Times had a somewhat hysterical editorial regarding an 8-1 decision by the USSC that makes it harder for defendant to challenge eyewitness testimony that is mistaken or flawed. Instead of allowing judges to rule on this, the SC said that juries should be the arbiters of whether these eyewitness accounts are reliable.
According to the LA Times “Statistics show that 76% of 250 convictions overturned since 1989 because of DNA evidence involved mistaken eyewitness identification. A host of factors can lead to mistakes. Most are attributable to manipulation by the police, such as lineups or photo arrays in which the suspect is grouped with people who look nothing like him.”
Assuming the statistic cited is true (and that’s a big assumption, considering where the Times sources its material), the statement that most are attributable to police malfeasance is made up baloney. I’ve participated in a hundred of these photo lineups, known as “6 Packs”. I haven’t seen or been involved in any where the suspect is grouped with others who look nothing like him. In fact, the challenge is finding five other suspects who don’t look too much like him, thus confusing the witness and leading to no identification.
These photo lineups have to be submitted as evidence, so there would be no point in manipulating them in the manner suggested as it simply wouldn’t be allowed in court. In fact, the prosecutor would be mightily pissed if you gave him a photo lineup like that.
Where I have worked, not only do the suspects in the lineup have to look and be dressed reasonably similarly, they have to be standing in front of a same or similar backdrop. The same sort of rules apply in actual lineups of the type we have all seen in police dramas, but are rarely used due top the expense and logistical considerations.
This new ruling does not prevent judges from excluding eyewitness testimony based on procedurally flawed police lineups. What it does do is shift the burden on judging the reliability of possibly flawed or weak civilian eyewitness testimony from the judge to the jury. Even the usually reliably liberal Justice Ruth Bader Ginsburg said that judges shouldn’t be able to suppress eyewitness testimony in cases like Perry’s because the purpose of suppression is to deter police from manipulating eyewitness identifications.
Obama affirmative action pick Justice Sonya Sotomeyer claimed a broader purpose in the previous exclusion, apparently cut from whole cloth, as she was the only one who thought it, that it was designed to prevent any miscarriage of justice, whether emanating from police misconduct or eyewitness error. The LA Times concludes that it’s disappointing that her viewpoint didn’t convince a majority of the other justices. A majority? How about just one other one?
It is the judges job to make sure the evidence is proper for presentation, and the juries job to interpret it. No brainer.