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100 Denver L. Rev. F. 1 (2023)

handle is hein.journals/dnvrlwfv100 and id is 1 raw text is: AVOIDING MISIDENTIFICATION: IMPROVING BEST PRACTICES CAN REDUCE INCIDENTS OF WRONGFUL CONVICTION Andrew J. Fishman1 Abstract: In May 2021, newly tested DNA evidence appeared to exonerate Ledell Lee, who had spent almost thirty years in prison for a murder he did not commit. Although this new evidence should have been a great relief to Mr. Lee and his family, it was not. The State of Arkansas had executed Mr. Lee almost four years earlier. Mr. Lee's wrongful conviction was, in part, based on an unreliable eyewitness identification. Unfortunately, mistaken eyewitness identification is the most common factor in wrongful convictions. The manner in which eyewitness evidence is collected can have a significant impact on its reliability. This paper explores eyewitness identification collection procedures and examines best practices adopted by different states. Learning from recent developments in New Jersey and Massachusetts, this paper suggests two best practices for collecting eyewitness evidence which states can adopt to decrease the likelihood of misidentification and wrongful conviction. INTRODUCTION In a criminal trial, eyewitness identification is often a crucial factor in convincing the jury to convict the defendant. Emotional testimony by a sympathetic victim or an innocent bystander-with no ulterior motive other than the pursuit of justice-can be the evidence the jury needs to leave no reasonable doubt of the defendant's guilt. Eyewitness identification, however, is far from infallible. Juries have place significant trust in eyewitnesses' identifications, despite scientific studies showing high rates of unreliability.2 Eyewitness identification relies on the witness's memory 1 Judicial Law Clerk, U.S. District Court for the Eastern District of Pennsylvania. J.D. Boston College Law School; B.S. Trinity College. I would like to thank Mark S. Brodin, Zygmunt Plater, E. Joan Blum, and George D. Brown for their insight, mentorship, and support. I want to express my deep gratitude to the staff of the Denver Law Review Forum for their exceptional work preparing this Article for publication. I would also like to thank my wife, Rayna Fishman, my mother, Laura Fishman, my father Mark Fishman, and my brother Daniel Fishman. I could not have done any of this without you. Any errors are mine alone.

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