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33 Law & Hum. Behav. 1 (2009)

handle is hein.journals/lwhmbv33 and id is 1 raw text is: Law Hum Behav (2009) 33:1-24 DOI 10.1007/s10979-008-9130-3 ORIGINAL ARTICLE Suggestive Eyewitness Identification Procedures and the Supreme Court's Reliability Test in Light of Eyewitness Science: 30 Years Later Gary L. Wells - Deah S. Quinlivan Published online: 27 February 2008 © American Psychology-Law Society/Division 41 of the American Psychological Association 2008 0 0 o C) 0 0a 0 H H- the suspect before conducting a lineup, telling a potentially non-confident eyewitness that his or her choice was correct, or conducting a second lineup procedure in which the only person in common was the suspect. The defense argument for suppressing the identification in light of even the most highly suggestive procedures almost never prevails (Loftus and Doyle 1997). Instead, courts end up ruling that the suggestiveness of the procedure is outweighed by the reliability test articulated by the U.S. Supreme Court in Manson v. Braithwaite (1977). Manson v. Braithwaite is, in effect, the law of the land on eyewitness identification. Although some state courts have tweaked the reliability test in Manson, the core idea remains largely as it was laid out in 1977. Interestingly, it was around the time of Manson that psychological scientists began to conduct programmatic experiments on eyewitness identification with a strong emphasis on suggestive identification procedures (Wells 1978). Since that time, hundreds of eyewitness experiments have been published in peer-reviewed journals, many of which bear on issues in Manson. Overall, the empirical data indicate that eyewitness identification evidence is not performing very well (Penrod 2005). In addition, since the time of Manson, forensic DNA testing was developed and has been used to test claims of innocence. More than 200 exonerations based on post-conviction DNA testing reveal that mistaken identification was involved in more of these DNA exonerations (over 75%) than all other causes com- bined (see Connors et al. 1996; Scheck et al. 2000; Wells et al. 1998; see innocenceproject.org/for an up-to-date count of these cases). All the DNA exoneration cases had the benefit of Manson when they were tried,' which is at 1 Or the benefit of the nearly identical ruling, Neil v. Biggers (1972), on which Manson was based. 1 Springer Abstract The U.S. Supreme Court's ruling concerning suggestive eyewitness identification procedures (Manson v. Braithwaite, 1977, 432 U.S. 98) has not been revisited by the Court in the intervening 30+ years. Meanwhile, scien- tific studies of eyewitnesses have progressed and DNA exonerations show that mistaken identification is the pri- mary cause of convictions of the innocent. We analyzed the two-inquiry logic in Manson in light of eyewitness science. Several problems are discussed. Ironically, we note that suggestive identification procedures (determined in the first inquiry) boost the eyewitnesses' standing on three of the five criteria (used in the second inquiry) that are used to decide whether the suggestive procedures were a problem. The net effect undermines safeguards intended by the Court and destroys incentives to avoid suggestive procedures. Keywords Eyewitness Lineups - Suggestive identification procedures Expert eyewitness testimony Every day in the United States courts entertain arguments in pre-trial hearings that challenge eyewitness identifica- tion evidence based on suggestive eyewitness identification procedures. The arguments are familiar and the suggestive aspects common. They include using a show-up procedure (the suspect alone presented to the witness) when police could have conducted a lineup (embedding the suspect among fillers), conducting a lineup in which the suspect stood out, failing to tell the eyewitness that the culprit might not be in the lineup, showing the witness a photo of G. L. Wells (®) - D. S. Quinlivan Department of Psychology, Iowa State University, West 112 Lago, Ames, IO 50011, USA e-mail: glwells@iastate.edu

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