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12 Am. J. Crim. L. 189 (1984)
Helping the Jury Evaluate Eyewitness Testimony: The Need for Additional Safeguards

handle is hein.journals/ajcl12 and id is 199 raw text is: Helping the Jury Evaluate Eyewitness
Testimony: The Need for Additional
Safeguards
Justice would less often miscarry if all who are to weigh evi-
dence were more conscious of the treachery of human
memory.'
Throughout this century, experimental psychologists have
demonstrated with increasing clarity that, due to normal deficiencies
in the human memory process, eyewitness identification testimony is
an inherently unreliable form of evidence. This inherent unreliabil-
ity, in combination with the legal system's unwillingness to effec-
tively safeguard against its disastrous effects, poses a serious threat to
the fair and efficient administration of criminal justice in America.2
Eyewitness identification testimony is often the sole or major
evidence of guilt in criminal cases,3 yet the U.S. Supreme Court has
expressly acknowledged its unreliability.4 Most jurors, unaware that
eyewitness testimony abounds with the possibility of error,5 place
1. H. MUNSTERBERG, ON THE WITNESS STAND, 45 (1908).
2. The most comprehensive study of wrongful convictions reveals that eyewitness mis-
identification is a continuing factor in 52% of all wrongful felony convictions. C. Huff & A.
Rattner, Convicted but Innocent: False Positives and the Criminal Justice Process, (forthcom-
ing as a book chapter in MULTIDISCIPLINARY CONTRIBUTIONS TO UNDERSTANDING CRIME (J.
Scott & T. Hirschi eds. 1984)) (based on A. Rattner, Convicting the Innocent: When Justice
Goes Wrong (1983) (dissertation at Ohio State University)) [hereinafter cited as Huff &
Rattner]. Other major factors in wrongful convictions are perjury and police and prosecutorial
abuses. Huff & Rattner, 5-11 to 5-13; Rattner, 164.
See also McGowan, Constitutional Interpretation and Criminal Identifcation, 12 WM. &
MARY L. REv. 235, 238 (1970) (noting that many experts believe that misidentification
presents conceivably the greatest single threat to the achievement of our ideal that no inno-
cent man shall be punished.); Quinn, In the Wake of Wade: The Dimensions of Eyewitness
Ident fcation Cases, 42 COLO. L. REv. 135 (1970) (positing that eyewitness identification testi-
mony is the major cause of wrongful convictions.).
3. See infra notes 125-26, 130-32, 137 and accompanying text; See also Brigham, The
Accuracy of Eyewitness Evidence: How Do Attorneys See It, 55 FLA. B. J. 714, 714 (1981).
4. The vagaries of eyewitness identification are well known; the annals of criminal law
are rife with instances of mistaken identification. United States v. Wade, 388 U.S. 218, 228
(1967).
5. It would be pleasant, but unduly optimistic, to think that the danger inherent in
identification evidence by comparative strangers to the accused is now generally recognized.
The fact is that juries do not recognize its unreliable nature. G. WILLIAMS, THE PROOF OF
GUILT, 119-20 (3d ed. 1963); Deffenbacher & Loftus, Do Jurors Share a Common Understand-
ing Concerning Eyewitness Behavior 6 LAW & HUM. BEHAV. 15 (1982) (study concluding that

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