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110 J. Crim. L. & Criminology 181 (2020)
Eyewitness Identification and the Problematics of Blackstonian Reform of the Criminal Law

handle is hein.journals/jclc110 and id is 197 raw text is: 0091-4169/20/11002-0181 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 110, No. 2 Copyright © 2020 by Lawrence Rosenthal Printed in U.SA EYEWITNESS IDENTIFICATION AND THE PROBLEMATICS OF BLACKSTONIAN REFORM OF THE CRIMINAL LAW LAWRENCE ROSENTHAL* A substantial number of wrongful convictions are attributable to inaccurate identifications ofperpetrators, stemming from the difficulties that eyewitnesses can experience in accurately perceiving and later recalling faces. Many have argued that courts should employ prophylactic rules to prevent the admission of unreliable identification evidence. Yet, most jurisdictions continue to follow the deferential approach to the admission of eyewitness identification evidence taken by the United States Supreme Court in Manson v. Brathwaite. Commentators have universally condemned this state of affairs. This Article offers a departure from the existing commentary by taking seriously the possibility that courts have good reason for their reluctance to embrace prophylactic rules excluding evidence thought to present unduly high risks of convicting the innocent. The case for reform is rooted in Blackstone's admonition that the law should be wary of admitting evidence of guilt, preferring erroneous acquittals to wrongful convictions. It is difficult, however, to construct a Blackstonian case for the exclusion of evidence thought to be unduly likely to produce wrongful convictions. Given our limited knowledge about the error rates that inhere in most types of evidence, Blackstonian reform has no ascertainable stopping point; excluding evidence that poses what is thought to be an undue risk of wrongful conviction could result in the exclusion of virtually all evidence of guilt. To illustrate the point, this Article considers an issue on which the lower courts have split the role of corroborative * Professor of Law, Chapman University, Dale E. Fowler School of Law. The author has benefitted from the incisive comments of Kevin Cole, Donald Kochan, Scott Howe, Eric Miller, Ric Simmons, Jonathan Witmer-Rich, and those who attended the presentation of earlier drafts at Crimfest at Cardozo Law School and Southern California Criminal Justice Roundtable held at the University of California, Irvine School of Law. The author is also grateful to Rachel Cherny-Santos, Joseph Hernandez, Kaylee Sauvey, Jaime Traxler, Sherry Leysen and the staff of the Rinker Law Library for invaluable research assistance. 181

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