State v. Higgins

SEILER, Judge,

concurring in result.

I concur in result, as there is evidence linking defendant to the crime other than eyewitness identification which has a strong aspect of police suggestion to it. The example of this case, however, impels me to say something about eyewitness identification in general. Of the three eyewitnesses, one, Mr. Agee, did not identify defendant as the gunman and tentatively identified someone other than defendant. Mrs. Agee at first agreed with her husband in the tentative identification of someone else as the gunman and then when shown more photographs she and her husband still were not able to make a positive identification.

Miss Bowman, according to officer Rid-dell’s own testimony, was probably told by him when he prepared to show her the photographs that the police had in mind a suspect who was arrested the night of the homicide, February 11, 1977. In the five photographs shown Miss Bowman, defendant’s picture was the only one bearing the date 2-11-77. The figures stand out prominently in the photograph. They are about the same size as the length of the suspect’s nose. As soon as she picked out defendant’s photograph, the officer made “an exclamation of happiness,” as she put it, and confirmed the fact that this was the suspect the police had in mind. This provided strong reinforcement for her opinion from an authority figure. Miss Bowman, incidentally, was unable to say whether there was any hair on the face of the man she saw come out of the store with the gun in his hand — no beard or moustache as she related it to the police. Yet the photograph she selected shows defendant with a beard and moustache. The composite sketch of the suspect, which Miss Bowman helped create, showed a man with a beard and moustache. To some the sketch looks like defendant’s photograph, to others it might not at all.

It is true that the requirements of the Wade-Gilbert-Stovall cases have been limited to apply to post-indictment lineups, but the concern which gave rise to those opinions is the “very real danger of mistaken identification as a threat to justice.” United States v. Telfaire, 152 U.S.App.D.C. 146, 149 , 469 F.2d 552, 555 (D.C. Cir. 1972). That danger can exist before as well as after indictment. In the Wade case, the majority opinion quoted Mr. Justice Frankfurter as saying “ ‘What is the worth of identification testimony even when uncon-tradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials.’ ” The opinion goes on to say: “A major factor contributing to the high incidence of miscarriage of justice from mistaken' identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification . . . Suggestion can be created intentionally or unintentionally in many subtle ways . . .”, United States v. Wade, 388 U.S. 218, 228-29 , 87 S.Ct. 1926, 1933 , 18 L.Ed.2d 1149 (1967).

A note in a recent law review, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan.L.Rev. 969 (1977) discusses the psychology of testimony *164 and scientific studies on the fallibility of perception, the unreliability of memory and the inaccuracy of eyewitness testimony. It discusses perceptual selectivity, time perception, poor observation conditions, stressful situation, expectancy, personal needs and biases, cross-racial identification, memory decay over time, filling gaps in memory, inadequacy of verbal descriptions, suggestion in the composition and administration of an identification test, and social psychological influences.

I believe it is worthwhile to quote certain • concluding passages of the article (29 Stan. L.Rev. at 1028-29):

For years, members of the legal community have suspected that mistaken eyewitness identifications often send innocent people to prison and even death. Psychological research data amassed over the past 80 years confirm the unreliability of much eyewitness testimony: Psychologists can now point to a large number of cognitive and social factors that subtly but powerfully distort a witness’ perception, memory and recall of an event. Moreover, many of these factors repeatedly arise in criminal cases yet do not suggest themselves intuitively to jurors as causes for doubting the reliability of identification evidence. In fact, jurors often rely unquestioningly on eyewitness identifications as the most trustworthy evidence available.

Although courts long have recognized these dangers, they have done little to reduce the likelihood of such miscarriages of justice. The Supreme Court tackled only a relatively minor portion of the problem when, in the landmark Wade trilogy, it afforded the right to counsel and due process protection to pretrial identification procedures. Moreover, in the years since those decisions, the Court has qualified the principles they embodied so thoroughly that the protection now offered to the criminal defendant is minimal at best.

Other safeguards that the criminal justice system provides also fail adequately to protect the defendant from wrongful conviction due to inaccurate eyewitness testimony. No amount of cross-examination can reveal the numerous suggestive influences that subtly bias the recollections of an honest but mistaken witness, and even the most eloquent of closing arguments will not persuade a jury to disregard sincere and apparently truthful eyewitness testimony. Similarly, cautionary jury instructions, even when they effectively focus the jurors’ attention on the identification issue, do not provide them with any information with which to evaluate its worth. The remedies of exclusion and corroboration, on the other hand, go too far and undoubtedly would lead to the acquittal of many truly guilty defendants.

This Note proposes another safeguard: the admission at trial of expert testimony on the cognitive and social factors affecting the reliability of eyewitness identification evidence. When used in conjunction with the traditional devices of cross-examination, closing argument and jury instructions, the psychologist’s testimony can help the trier of fact to apply the scientific information on the process of perception, memory and recall to the case at hand in order to evaluate meaningfully the eyewitness evidence.

Finally, the psychologist’s expert testimony satisfies the traditional standards and principles governing the admission of expert testimony. In fact, the amount and quality of psychological research in this area has progressed to the point at which courts can no longer afford to ignore totally the development of experimental psychology as a science, at least when the liberty and even lives of criminal defendants hang in the balance. 1

. A footnote at this point in the article gives use of radar in speed detection devices as an example of the evolutionary process in use of evidence of scientific nature. At first the courts were unwilling to accept the devices as having sufficient scientific accuracy. Now many courts take judicial notice that radar is sufficiently reliable so as to dispense with proof of its general scientific reliability.