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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
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

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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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