By James M. Doyle

Comments: 3

Eyes Wide Shut

The U.S. Supreme Court
Photo by Klearchos via Google

In 1977, the U.S. Supreme Court ruled in Manson v. Braithwaite that  allowing juries to use identification evidence  generated by rigged  pretrial  show-ups, photo-arrays and lineups  violates  the due process clause of the federal Constitution..

Manson left a question open:  what if the circumstances surrounding the pretrial identification unfairly pointed to a suspect, but were not the fault of the police? 

Suppose the pretrial confrontation was pure accident, or arranged by private parties.   Could evidence from those non-police events be presented to jurors? Or does the due process clause reach even pretrial identifications for which the police could not be blamed?

The Court waited until last month’s decision in Perry v. New Hampshire to resolve that issue.  In Perry, the Court held that only “police-arranged” pretrial confrontations are subject to exclusion.

The Perry opinion (written by Justice Ruth Bader Ginsburg) is not surprising as a matter of doctrine.  The current membership of the court is hostile to the extension of federal constitutional protections to the conduct of private, unofficial actors.

Editor’s note: see Doyle’s commentary from October, “Less Than Meets the Eye.”

The text itself is dry and workmanlike.  It seems to adhere to routine conventions of  judicial opinion writing:  to say the minimum necessary to decide the case, and nothing more. 

The startling thing about the Perry opinion is the fact that Perry could have been written the  same day as Manson in 1977.  A lot has happened during the 35 years since Manson was decided, but you wouldn’t know that from the Perry opinion.

The Perry court maintained a disciplined silence about any lessons that the intervening 35 years might have taught it.  

There are times when silence speaks very loudly. 

Exonerations? What Exonerations?

Between the Manson decision and the Perry opinion DNA evidence has exonerated over 200 men wrongly convicted by the testimony of mistaken eyewitnesses. During the same period psychologists have published hundreds of studies explaining the mechanisms of human memory that contributed to these miscarriages of justice. 

Legal commentators and social scientists have published numerous careful articles dissecting the vulnerability of the adversary trial processes that failed to catch the errors.  

A Supreme Court opinion that ignores facts as glaring as these might be designed to whisper.  But it is heard as a shout. This one shouts that the wrongful convictions and the proven impotence of the legal machinery that was supposed to prevent them just don’t matter very much. 

According to Justice Ginsburg the courts have the eyewitness situation well in hand, and always have.  If a non-police pre-trial identification is questionable,  we can leave it to the juries to sort it out during the trial, as we traditionally have.  

Justice Ginsburg begins the court’s opinion with a catalogue of the protections against eyewitness error that the traditional adversary tool-box affords. Then, she writes about them as though they actually worked. 

For example, she points to jury instructions like one suggested by the hoary case of Telfaire v. United States, decided in 1974, as proof that jury instructions prevent miscarriages of justice without noting that at least one study (by Professor Edith Greene) showed that the Telfaire instruction actually raised the conviction rate in eyewitness trials. 

Justice Ginsburg then stresses the protections offered by the participation of counsel and the potential of cross-examination exactly as if those weapons had not been tried and had not failed in every exoneration case on the DNA list. 

And Justice Ginsburg ignores what any trial lawyer (and any scholar who has looked at the issue) would tell you:  cross-examination and lawyers’ arguments are fundamentally incapable of discrediting honest but mistaken eyewitnesses. 

One experiment showed that jurors believed mistaken and accurate eyewitness (in roughly the same viewing conditions) at the same rate.  Another indicated that cross-examinations that showed that the eyewitness was legally blind decreased the conviction rate by a whopping three percent. 

The fact is, cross-examining lawyers can always ask questions and generate specific data, but that specific data is no help because many jurors will apply mistaken “common sense” principles in using that data.  It is easy enough, for example, for a lawyer to show that an eyewitness victim was under extreme stress, a factor which researchers know degrades reliability.  

But many jurors believe that stress actually enhances accuracy.  So, defending lawyers who show stress during a trial will have hurt their clients, not protected them.  Lawyers can easily show that a witness is confident in the correctness of his or her choice. But the jurors will believe that “common sense” teaches that confident testimony indicates accuracy, while researchers have shown that by the time of testimony confidence and accuracy are largely unrelated. 

Over 100 years ago,  in his pioneering book,  On The Witness Stand, Hugo Munsterburg, pointed out that everyone—industrialists, educators, and physicians—except the lawyers had learned what psychologists have to teach us about the vulnerable three-stage process of encoding, storage, and retrieval that we call “memory. “ 

Everyone, that is, except the courts. 

The ‘Obdurate’ Lawyer

“The lawyer alone is obdurate,” Munsterburg complained. 

Today’s Supreme Court may not be obdurate, but it is shockingly complacent.  It is one thing to say that the due process clause of the federal constitution is the wrong solution to the problem of eyewitness error.   It is quite another thing to pretend, as the Perry court does, that there was never a problem in the first place, or—in the face of the tragic lessons of the DNA cases—that the problem is already solved.

It may be that Perry is the price we pay for a Supreme Court whose membership is drawn more from the faculty lounge than from the cutting floors of the ordinary criminal courts.  

Only Justice Sonia Sotomayor, whose experience as a New York prosecutor apparently provided some insight into how the trial process actually works—and doesn’t work—resisted the comforting fiction that the judges can now prevent error. 

Watch a few actual criminal trials and complacency becomes hard to sustain.  Read the DNA exoneration lists, and it is harder to shut your eyes to the price of your smugness. 

Out on the sharp end of the system, the police are modernizing their eyewitness identification procedures, and working groups and task forces of prosecutors, defenders, and trial judges are working on improving the adversary mechanisms that inspect the police results.  

There are signs that their collaborations might improve things.  But the practitioners on the frontlines are swimming upstream against hundreds of years of legal tradition, and they could have used a little leadership and support from the Supreme Court. 

In Perry v. New Hampshire, the court, eyes shut tight against evidence of the legal system’s imperfection, failed to provide it.  By refusing to take a step forward, the court took a step back.

James Doyle is a Boston attorney and the author of True Witness: Cops, Courts, Science and the Battle Against Misidentification (Palgrave 2005) a history of the clash between eyewitness science and legal traditions. He is a 2012 Visiting Fellow at the National Institute of Justice. The opinions expressed here are his own. He welcomes comments from readers.

Email this post »