Amicus Curiae Brief — Perez v. United States (No. 05-596)

4

(Marshall, J, dissenting) Rather, the Biggers Court

intimated that “the factors to be considered in evaluating the

likelihood of misidentification” were drawn from ithe

common law, “as indicated by [the Court's] cases.” 409 U S.

at 199. Without citing any specific legal precedents or

scientific basis, the Biggers Court simply announced five

external indicia that it perceived to be analytically effective

in measuring the reliability of eyewitness testimony.”

Indeed, a witness's level of certainty was considered a

questionable indicator of accuracy even prior to Biggers.

See, e.g., Clemons v. United States, 408 F.2d 1230, 1242

(D.C. Cir 1968) (“although the positiveness of the witness

_. is a relevant factor, it is to be weighed warily and in the

realization that the most assertive witness is not invariably

the most reliable one”). As Justice Marshall pointed out, “the

witness’ degree of certainty in making the identification [] is

worthless as an indicator that he is correct.” See Brathwaite,

432 US. at 130 (Marshall, J, dissenting) (citing PATRICK

WALL, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES

15-16 (1965), People v. Anderson, 205 N.W.2d 461, 493-494

(Mich 1973); Frank O'Connor, “Jhat's the Man”: A

Sobering Study of Eyewitness Identification and the

Polygraph, 49 St. JOHN’S L. Rev. 1, 4-6 (1974)).

Although other Biggers factors had some untecedents in

the Court’s earlier opinions or the common law, eyewitness

certainty had virtually no role as a meaningful indicator of

reliability in the Court's jurisprudence prior to Biggers.3

2 Indeed, because this Court cited no scientific evidence supporting its

assumption that these factors effectively predict eyewitness accuracy,

researchers have noted that this Court merely “offered an intuitive theory

of eyewitness identification or at Icast 2 set of five hypotheses.” Gary L.

Weils & Donna M. Murray, What Can Psychology Say About the Neil v.

Biggers Criteria for Judging Eyewitness Accuracy?, 68 J. APPLIED

PSYCHOL. 347, 348 (1983) (hereinafter What Can Psychology Say).

3 Before Biggers, the fact that eyewitnesses expressed a high level of

certainty had no independent effect on the Court's duc process analysis.

See, eg, Simmons, 390 U.S. at 385, Foster, 394 U.S. at 441-42.

5

Rather, the Court appears to have adopted the certainty factor

based solely on its intuitive (albeit unfounded) appeal, rather

that: on any scientific principle or empirical fact. See State v.

Long, 721 P.2d 483, 491 (Utah 1986) (the Biggers test was

“based on assumptions that are flatly contradicted by well-

respected and essentially unchallenged empirical studies.”);

accord Brodes v. State, 614 S.E.2d 766, 770 (Ga. 2005). The

Court should now resolve the long-standing disconnect

between law and science and establish an empirically sound

approach to the reliability of eyewitness identifications.

B. Courts and Legal Scholars Have Condemned

Biggers as an Unsound Analysis of

Eyewitness Accuracy and Have Accordingly

Sought to Develop Judicial Remedies to

Safeguard Due Process

For twenty years, courts have considered academic and

scientific literature in questioning the continued soundness of

the Biggers reliability analysis.* Legal commentators have

also extensively reviewed empirical research and scientific

4 See, e.g, State v. Ledbetter, 881 A.2d 290, 312 (Conn. 2005) (“it is

appropriate for this court to survey relevant scientific data as that data has

been reported in the decisions of other courts and in the scientific

literature”), Brodes v. State, 6'4 S.E.2d 766, 770 (Ga. 2005) (“The

scientific validity of the studies confirming the many weaknesses of

eyewitness identification cannoi be seriously questioned at this point.”)

(internal quotation marks and citation omitted); Commonwealth vy.

Johnson, 650 N.E.2d 1257, 1262 (Mass. 1995) (“[S]tudies conducted by

psychologists and legal researchers smce Brathwaite have confirmed that

eyewitness testimony is often hopelessly unreliable.”), State v. Ramirez,

817 P.2d 774, 780 (Utah 1991) (“[W]e do not agree entirely with the

Biggers listing of the relevant critcria for determining the reliability of

eyewitness identifications and ... we find some of those criteria to be

scientifically unsound.”), State v. Long, 721 P.2d 483, 488 (Utah 1986)

(concluding that “[t}he literature is replete with -mpirical studies

documenting the unreliability of eyewitness identii._ation.”), State v.

Dubose, 699 N.W.2d 582, 592 (Wisc. 2005) (“In light of [empirical]

evidence, we recognize that our current approach to cyewitness

identification has significant flaws.”).

6

data demonstrating that the Biggers test—and particularly the

certainty factor—is not a valid predictor of the reliability of

eyewitness testimony.> Notably, very little scientific data

supports the Biggers test as a dependable metric for

evaluating eyewitness testimony. Courts and practitioners

should therefore not be bound by the unsupported

assumptions embodied in the Biggers factors.

1. Based on Existing Empirical Data, State

Courts Have Sought to Eliminate the

Certainty Factor from the Analysis

Several state courts of last resort have expressly relied

upon empirical research to remedy due process concerns

stemming from defects in the Biggers test. See, e.g., Dubose,

699 N.W.2d at 596 (“Based on our reading of [the due

process] clause .. . the approach outlined in Biggers and

Brathwaite does not satisfy this requirement.”); Johnson; 650

N.E.2d at 1261 (“{[WJe conclude that we cannot accept

Brathwaite as satisfying the requirements of [due process

under the Massachusetts constitution].”).

State courts have pointedly criticized the certainty factor.

In finding the Biggers analysis “scientifically unsupported”

and fashioning a “more empirically based approach,” the

Utah Supreme Court rejected the certainty factor as an

indicator of an identification’s reliability. Ramirez, 817 P.2d

at 780-81; sce also Long, 721 P.2d at 490 (“Research has

also undermined the common notion that the confidence with

which an individual makes an identification is a valid

5 See, e.g, Donald P. Judges, Two Cheers for the Department of

Justice’s Eyewitness Evidence: A Guide for Law Enforcement, 53 ARK.

L. REV. 231, 250 (2000); Connie Mayer, Due Process Challenges to

Eyewitness Identification Based on Pretrial Photographic Arrays, 13

PACE L. REV. 815, 844 (1994); Benjamin E. Rosenberg, Rethinking the

Right to Due Process in Connection With Pretrial Identification

Procedures: An Analysis and a Proposal, 79 Ky. L.J. 259, 276 (1991);

Randolph N. Jonakait, Reliable Identification: Could the Supreme Court

Tell in Manson v. Brathwaite”, 52 U. Coto. L. REv. 511 (1981).

7

indicator of the accuracy of the recollection.”). Citing the

“uncontradicted” scientific literature, the Connecticut

Supreme Court found that “the fourth Biggers factor is

particularly flawed because a weak correlation, at most,

exists between the level of certainty demonstrated by the

witness at the identification and the accuracy of that

identification.” Ledbetter, 881 Ald at 311. And the

Supreme Judicial Court of Massachusetts expressed

“significant doubt about whether there is any correlation

between a witness’s confidence in her identification and the

accuracy of her recollection{,}” and held that trial courts

should not instruct a jury to “take into account. . _ the

strength of the identification.” Commonwealth v. Santoli,

680 N.E.2d 1116, 1121 (Mass. 1997).

Most recently, the Georgia Supreme Court recognized

that “‘[a]n important body of psychological research

undermines the lay intuition that confident memories of

salient experiences .. . are accurate."” Brodes, 614 S.E.2d at

770 (quoting Kriz: v. Eli Lilly & Co., 897 F.2d 293, 296 (7th

Cir, 1990)). The court held that it could “no longer endorse

an instruction authorizing jurors to consider the witness’s

certainty in his/her identification as a factor to be used in

deciding the reliability of that identification[,]” and instructed

Georgia trial courts to “refrain from informing jurors they

may consider a witness’s level of certainty when instructing

them on the factors that may be considered in deciding the

reliability of that identification.” Brodes, 614 S.E.2d at 771.

The court found this approach necessary “[i}n light of the

scientifically-documented lack of correlation between a

witness’s certainty in his or her identification of someone as

the perpetrator of a crime and the accuracy of that

identification{.}” /d.®

6 This Court too has previously relied upon sociological and scientific

research in evaluating constitutional challenges, including those relating

to the inherently suspect qualitics of eyewitness identification evidence.

See, e.g, Wade, 388 U.S. at 228 n.6, Watkins v. Sowders, 449 U.S. 341,

350 n.1 (1981) (Brennan, J., dissenting, with Marshall, J.) (“The special

2. Courts Have Also Used Cautionary

Instructions in an Effort to Mitigate the

Risk of Mistaken Eyewitness Testimony

Admitted Under Biggers

Moreover, some state courts have recognized that even

the most well-intentioned juries may fail to accurately

evaluate eyewitness identification evidence once it has been

deemed admissible under Biggers. “Although research has

convincingly demonstrated the weaknesses inherent in

eyewitness identification, jurors are, for the most part,

unaware of these problems. People simply do not accurately

understand the deleterious effects that certain variables can

have on the accuracy of the memory processes of an honest

eyewitness.” Ramirez, 817 P.2d at 779-80 (quoting Long,

721 P.2d at 490 (citations omitted)). See also Jones v. State,

749 N.E.2d 575, 586 (Ind. Ct. App. 2001) (“[W]e are not

thoroughly convinced that the average juror is conversant

with the likelihood or frequency with which

misidentifications are made by seemingly unequivocal

witnesses.”) (internal quotation marks omitted).

nature of eyewitness identification evidence has produced an enormous

reservoir of scholarly writings, many based on solid empirical research.”).

See also Roper v. Simmons, 543 U.S. 551, 125 S. Cv. 1183, 1195-96

(2005) (considering research on adolescent behavior in concluding it was

unconstitutional to impose capital punishment for crimes committed

while the defendant was a minor), Grutter v. Bollinger, 539 U.S. 306, 330

(2003) (relying on “expert studies and reports . . . showing] that student

body diversity promotes learning outcomes, and better prepares students

for an increasingly diverse workforce and society” in concluding that a

race-conscious law school admission policy passed constitutional muster)

(internal quotation marks and citations omitted), id at 364-65 (Rehnquist,

C.J., dissenting, with Scalia, Kennedy, Thomas, J.J.) (relying on social

science evidence to support a contrary conclusion); Afkins v. Virginia,

* $36 U.S. 304, 318 nn.23-24 (2002) (relying on sociological and scientific

evidence in concluding that execution of the mentally retarded constituted

“cruel and unusual punishment” in violation of the Eighth Amendment),

Davis v. United States, 512 U.S. 452, 470 n.4 (1994) (Souter, J.,

concurring) (relying on social science to explain behavioral tendencics

exhibited by suspects during a police interrogation).

9

In Long, the Utah Supreme Court declared that trial

courts must give cautionary jury instructions “whenever

eyewitness identification is a central issue in a case and such

an instruction is requested by the defense.” 721 P.2d at 492.

Given the unperceived flaws of eyewitness testimony and the

substantial weight given to it by juries, to convict a defendant

on eyewitness identification “without advising the jury of the

factors that should be considered in evaluating it could, well

deny the defendant due process of law.” Jd.

And although the Connecticut Sur-eme Court ruled that

it was bound to apply Biggers, it held that “some action is

necessary to mitigate the risks of [suggestive identification]

procedures.” Ledbetter, 881 A.2d at 316. The court declared

that “unless there is no significant risk of misidentification,”

Connecticut’s trial courts must “incorporate an instruction in

the charge to the jury, warning the jury of the risk of

misidentification” in cases involving a _ suggestive

identification procedure. Ledbetter, 881 A.2d at 318.

C. The Biggers Factors Do Not Reliably Predict

the Accuracy of Eyewitness Identifications

A legion of empirical studies analyzing the Biggers

factors have concluded not only that certain of these factors

may have an inconclusive impact on the overall reliability

analysis, but also that these factors may actually be

misleading in certain circumstances.’ The vast majority of

7 See, e.g, Amy L. Bradfield & Gary L. Wells, The Perceived Validity

of Eyewitness Identification Testimony: A Test of the Five Biggers

Criteria, 24 Law & HUM. BEHAV. 581 (2000); Gary L. Wells & Amy L.

Bradfield, “Good, You Identified the Suspect”: Feedback to Eyewitnesses

Distorts Their Reports of the Witnessing Experience, 83 J. APPLIED

PSYCHOL. 360, 374-75 (1998) [hereinafter Good, You Identified the

Suspeci]; Gary L. Wells and Eric P. Seelau, Eyewitness Identific 2tion:

Psychological Research and Legal Policy on Lineups, 1 PSYCHOL PUB.

PoL’y & L. 765, 785 (1995); Wells & Murray, What Can Psychology

Say, supra, at 347. See generally BRIAN L. CUTLER & STEVEN D.

PENROD, MISTAKEN IDENTIFICATION: THE EYEWITNESS, PSYCHOLOGY,

AND THE LAW (1995) [hereinafter Mistaken Identification].

10

studies have confirmed that little or no correlation exists

between a witness’s certainty and the accuracy of the

identification. This conclusion is especially alarming given

that the factor upon which juries place the greatest weight is

witness certainty. Cutler & Penrod, Mistaken Identification,

supra, at 181-209. Researchers have also characterized three

of the four remaining Biggers factors as subjective “self-

report” variables measured by the witness, which, contrary to

beliefs commonly held by laypersons, do not accurately

reflect the actual circumstances at the time of the crime. See

Judges, supra, at 265, Rosenberg, supra, at 276-79. As

illustrated below, proven limitations on human perception

can undermine the utility of an eyewitness’s report of the

very information upon which the Biggers framework relies,

severely compromising the effectiveness of the Biggers test.

1. Witness’s Level of Certainty

Scientific research has undermined the commonly held

misconception that the level of certainty (or “confidence”) a

witness demonstrates in making an identification is a reliable

predictor of accuracy. This assumption is wrong; confidence

is not an independent indicator of accuracy. See, e.g., Cutler

& Penrod, Mistaken Identification, supra, at 94-96, Bradfield

& Wells, supra, at 590-92; C. A. Elizabeth Luus & Gary L.

Wells, Eyewitness Identification Confidence, in ADULT

EYEWITNESS TESTIMONY 348, 348-61 (David Frank Ross et

al. eds. 1994), Kenneth A. Deffenbacher, Eyewitness

Accuracy and Confidence: Can We Infer Anything About

Their Relationship?, 4 LAW & HUM. BEHAV. 243, 258 (1980)

(“The judicial system should cease and desist from a reliance

on eyewitness confidence as an index of eyewitness

accuracy.”).

At most, only a weak correlation exists between the level

of certainty demonstrated by the witness at the identification

and the accuracy of that identification. See, e.g., Gary L.

Wells. et al, Eyewitness Identification Procedures:

Recommendations for Lineups and Photospreads, 22 LAW &

HUM. BEHAV. 603, 622-23 (1998) [hereinafter Eyewitness

Identification Procedures}, Brian L. Cutler et al, The

Reliability of Eyewitness Identification: The Role of System

and Estimator Variables, 11 LAW & HUM. BEHAV. 233, 236

(1987) (“experiments testing the eyewitness-confidence

accuracy relation indicate that the correlation is negligible”).

The primary problem with the certainty factor is that

witnesses may exhibit confidence entirely independent of the

accuracy of their judgments. “The confidence-accuracy

relationship is generally found to be small or absent, but

witnesses are confident in whatever choice they make.” Roy

S. Malpass & Patricia G. Devine, Eyewitness Identification:

Lineup Instructions and the Absence of the Offender, 66 J.

APPLIED PSYCHOL. 482, 488 (1981).

Not only is the certainty factor the least reliable Biggers

factor, but it is also the one most likely to taint the jury’s

deliberations.2 See, e.g., Steven Penrod & Brian Cutler,

Witness Confidence and Witness Accuracy: Assessing Their

Forensic Relation, 1 PSYCHOL. PUB. POL. & L. 817, 830

(1995) (“Jurors are not adequately sensitive to aspects of

witnessing and identification conditions that are arguably

better predictors of witness accuracy than is witness

confidence”); Luus & Wells, Eyewitness Identification

Confidence, supra, at 348 (“jurors tend to rely heavily on

eyewitness confidence to infer witness accuracy”); R. C. L.

Lindsay et al., Can People Detect_Eyewitness-Identification

Accuracy Within and Across Situations?, 66 J. APPLIED

PSYCHOL. 79, 80-82 (1981) (finding that eyewitness

confidence accounted for as much as 50 percent of the

variability in mock juror belief in eyewitness testimony).

8 The Members of this Court have recognized that “despite its inherent

unreliability, much eyewitness identification evidence has a powerful

impact on juries.” Watkins, 449 U.S. at 352 (Brennan, J., dissenting, with

Marshall, J.); see also Brathwaite, 432 U.S. at 120 (Marshall, J.,

dissenting) (a “fundamental fact of judicial experience” ignored by the

Court is that “jurics unfortunately are often unduly receptive to

[identification] evidence”).

12

Eyewitness identification evidence will be particularly

persuasive to jurors when the witness exhibits confidence in

the identification, whether correct or incorrect. See, e.g.,

Bradfield & Wells, supra, at 582 (“researchers have found

that certainty of an eyewitness has a strong impact on

participant-jurors’ perceptions of the accuracy of the

identification” (citing studies)); Cutler & Penrod, Mistaken

Identification, supra, at 181-196 (surveys show that people

believe a strong relation exists between eyewitness

confidence and accuracy). In one study, mock jurors relied

heavily on witness confidence but were unable to

differentiate between accurate and inaccurate testimony,

believing both approximately 80% of the time, “irrespective

of the actual rate of witness accuracy.” Gary L. Wells et al.,

Accuracy, Confidence, and Juror Perception in Eyewitness

Identification, 64 J. APPLIED PSYCHOL. 440, 447 (1979).

By the time a jury assesses a witness’s confidence, the

level of confidence may be inflated by numerous

externalities, such as repeated questioning and coaching

stemming from witness preparation. See Penrod & Cutler,

Witness Confidence and Witness Accuracy, supra, at 830

(“witness confidence . . . appears to be highly malleable and

influenced by postidentification factors such as repeated

questioning, briefings in anticipation of cross-examination,

and feedback about the behavior of other witnesses.”). Based

on this inflated confidence, jurors may tend to give

eyewitness testimony disproportionate weight in voting to

convict a defendant even in the face of evidence discrediting

the eyewitness.

2. Witness’s Opportunity to View the

Criminal at the Time of the Crime

Courts are required under Biggers to consider the

witness’s opportunity to view the criminal during the crime.

But the information upon which courts must rely is merely

the witness’s own approximation of his or her distance from

the criminal, the extent to which the criminal’s face was

13

blocked, or most commonly, the amount of time the witness

had tc view the ~:ailant.

Witnesses often unable to accurately estimate such

information. Most significantly, a witness’s ability to

approximate the time he or she had to observe the criminal is,

poor at best. Witnesses almost invariably overstate temporal

duration. Jonakait, supra, at 518. Whereas a witness’s

estimate of distance, speed, height or weight may err in either

direction, humans always tend to perceive an event as lasting

longer than it actually did. /d. The tendency to overstate is

even stronger when the witness is experiencing stressful

circumstances. Resenberg, supra, at 278-79. The Biggers

test therefore requires courts to rely on information that has

effectively been tainted by the limits of human perception.

3. Witness’s Degree of Attention

Consideration of the witness’s degree of attention also

requires reliance on the witness’s own approximation of his

or her own attentiveness. That alone is problematic, but this

factor’s relevancy is further cast into doubt by scientific

studies that have debunked the commonly held myth that a

witness is more attentive to details in a dangerous situation

and thus better able to accurately identify the assailant.

Rosenberg, supra, at 278. The presence of a weapon can

further undermine a witness’s ability to observe identifying

characteristics of an assailant; this weakened capacity is

referred to as the “weapon focus” phenomenon, whereby the

presence of a knife or a gun, for example, narrows a witness-

victim’s concentration. ELIZABETH F. LorrTus, EYEWITNESS

TESTIMONY 35 (1996 ed). Rather than focus on the

assailant’s face or other distinguishing features (e.g., tattoos),

the witness will concentrate more intently on the weapon,

rendering that witness’s ability to identify the assailant less

reliable. Jd. Thus, a witness’s estimation of his or her

attentiveness to the assailant is unlikely to aid in the analysis

of whether an identification is independently reliable.

14

4. Accuracy of the Prior Description

The “accuracy of the witness’s prior description” factor

has also been questioned on the basis that it is irrelevant to

the accuracy of the identification itself. Scientific evidence

indicates that there is no “appreciable relationship between a

person’s prior description of a face and the person's accuracy

in identifying the face.” Wells & Murray, What Can

Psychology Say, supra, at 355 (citing studies), see also Alvin

G. Goldstein et al., Does Fluency of Face Description Imply

Superior Face Recognition?, 13 BULL. PSYCHONOMIC SOC’Y

15, 15-18 (1979). Moreover, a witness’s verbal ability to

describe an individual’s face does not correlate to the

witness’s ability to accurately identify that person. See A.

Daniel Yarmey, THE PSYCHOLOGY OF EYEWITNESS

TESTIMONY 138-39 (1979). Thus, even a description

provided before an identification that closely parallels a

defendant’s features does not necessarily render the

identification reliable. Finally, even if the initial description

and the defendant’s characieristics are identical, witnesses

may be led to erroneously recall certain characteristics during

the initial description. See Wells & Murray, What Can

Psychology Say, supra, at 355. Under such circumstances,

this Biggers factor is undeniably satisfied, but both the prior

description and the subsequent identification would be

inaccurate.

D. The Biggers Test Is Not Immune from the

Taint of Suggestive Identification Procedures

As demonstrated aboye, the Biggers factors are

ineffective predictors of accuracy, even without the taint of

an unnecessarily suggestive identification procedure. The

Biggers test was fashioned te determine whether a tainted

identification could be rehabilitated on the basis that it is

independently reliable. The Biggers factors, however, are

not immune from the tainting effects of a suggestive

procedure. Social scientists have proven that these factors—

especially witness certainty—are vulnerable to such

contamination, thus, the Biggers analysis is not sufficiently

15

independent of the threshold issue of suggestiveness. See,

e.g., Wells, Eyewitness Identification Procedures, supra, at

631; Judges, supra, at 264-70. See also Cossel v. Miller, 229

F.3d 649, 655 n.4 (7th Cir. 2000) (“The fourth Biggers

factor—the level of certainty demonstrated by the witness at

the time of the identification—has little relevance here,

where the level of certainty a witness demonstrates is just as

likely to be a product of a prior unduly suggestive

identification as it is to be a product of an independent

recollection of the crime.”).

Unlike physical evidence, which is subject to stringent

scientific methods of collection, documentation, and

preservation, memory evidence is handled in a manner based

merely on intuition and tradition. See Judges, supra, at 240-

41. Indeed, the so-called “system” variables within the

investigator's control during collection of eyewitness

evidence (e.g., line-up and show-up methods, questions

asked, and comments made during interviews and

identification processes) remain largely unregulated and can

have a dramatic impact on eyewitness accuracy when

suggestive. See id. at 243-45. Because suggestiveness is

likely to infect a witness's memory and increase a witness's

level of certainty—especially when the suggestiveness

originates with highly credible sources such as police

officers—eyewitness testimony may become contaminated

throughout the investigative process, during interviews,

lineups, show-ups and post-identification communication.

Id. at 245-69

Experiments designed to test the effect of suggestive

post-identification feedback illustrate how the Biggers test

factors cannot be evaluated independently of the

suggestiveness that initially compromised the identification.

In one such study, eyewitnesses to simulated crimes were

asked to identify the “criminal” out of a photo line-up.

Following those identifications, certain participants were

told: “Good. You identified the actual suspect”; others were

given disconfirming or no feedback. Wells & Bradfield,

Good, You Identified the Suspect, supra, at 363. The

16

researchers concluded that “a casual comment from a lineup

administrator following eyewitnesses’ identifications can

have drainatic effects on their reconstructions of the

witnessing and identification experience” and that “a

suggestive procedure itself (the feedback) can cause

eyewitnesses to come across strongly” on “four of the five

Biggers criteria (confidence, view, attention, and description

of the perpetrator)... .” Jd. at 374-75. Most significantly,

researchers found that confirming feedback had a “huge

effect” on the witness’s level of certainty. /d. at 374.

A suggestive identification procedure so fundamentally

contaminates the factors used to evaluate independent

reliability as to render them useless. Indeed, “arguing that a

suggestive procedure is not a problem because of the

eyewitness’s high standing on the Biggers criteria is a bit like

arguing that a forensic DNA procedure that contaminated the

suspect’s-blood with the sample at the crime scene is not a

problem because the lab results show that the match is

virtually perfect.” Jd. at 375.

ll. The Overwhelming Majority of Wrongful

Convictions Have Been Premised on Erroneous

Eyewitness Identifications

A. Exoneration Data Studies Confirm that

Eyewitness Misidentification Is the Most

Prevalent Cause of Wrongful Convictions

Mistaken eyewitness identification is the most common

cause of wrongful convictions, indeed, the Innocence Project

has concluded that 125 of the first 163 (76.69%) individuals

exonerated by DNA evidence had been convicted, at least in

part, by eyewitness misidentification. See Innocence Project,

http://www. innocenceproject.org/causes/mistakenid.php (last

visited on January 29, 2006).

A recent study reviewing 340 exonerations between

1989 and 2003 found that 64% involved at least one

mistaken identification. See Samuel R. Gross et al.

Exonerations in the United States 1989 Through 2003, 95 J.

17

CriM. L. & CRIMINOLOGY 523, 542 (2005). Another study

concluded that approximately 90% of the cases analyzed

therein involved one or_more mistaken identifications.

Wells, Eyewitness Identification Procedures, supra, at 605-

08. Likewise, the U.S. Department of Justice study reviewed

twenty-eight DNA exoneration cases and found that, in a

majority of the cases, eyewitness identifications had provided

compelling (but erroneous) evidence at trial. See U.S. DEP’T

OF JUSTICE, NAT’L INSTITUTE OF JUSTICE, Convicted By

Juries, Exonerated By Science: Case Studies in the Use of

DNA Evidence to Establish Innocence After Trial, Pub. No.

NCJ 161258, 24 (1996), available at

http://www.ncjrs.org/pdffiles/dnaevid. pdf.

B. The Need for Revision Is Underscored by the

Stories of Innocent Individuals Wrongly

Convicted under Biggers

The infirmities of the Biggers framework are

exemplified by those innocent men and women who have

been or remain unjustly imprisoned because an eyewitness’s

identification was erroneously deemed “reliable” under

Biggers. The stories of Carlos Lavernia, Mark Reid, and

Steven Toney illustrate the tragic results that can fuuow an

erroneous Biggers analysis.?

9 The three men profiled here are but a small sample of exoncrees

whose wrongful convictions’ were based on mistaken eyewitness

identifications. Others include: Clark McMillan (McMillan v. Barksdale,

823 F.2d 981 (6th Cir. 1987)), Ronnie Bullock (People v. Bullock, 507

N.E.2d 44 (Ill. App. Ct. 1987)),; Clyde Charles (State v. Charles, 511 So.

2d 1164 (La. Ct. App. 1987)); Bernard Webster (Webster v. State, 474

A.2d 1305 (Md. Ct. App. 1984)), David Brian Sutherlin (State v.

Sutherlin, 393 N.W.2d 394 (Minn. Ct. App. 1986)); Jimmy Ray

Bromgard (State v. Bromgard, 862 P.2d 1140 (Mont. 1993)), Chester

Bauer (State v. Bauer, 683 P.2d 946 (Mont. 1984)), Lesly Jean (State v.

Jean, 311 S.E.2d 266 (N.C. 1984)), Terry Chalmers (People v. Chalmers,

163 A.D.2d 528 (N.Y. App. Div. 1990)); Leonard Callace (People v.

Callace, 143 A.D.2d 1027 (N.Y. App. Div. 1988)); Wahir Abdal Abdal,

a.k.a. Vincent Jenkins (People v. Jenkins, 132 A.D.2d 942 (N.Y. App

18

1. Carlos Lavernia, Served Fifteen Years

In 1985, Carlos Lavernia was convicted of aggravated

rape, principally on the basis of the victim’s eyewitness

testimony. Lavernia v. Lynaugh, 845 F 2d 493, 495 (Sth Cir.

1988). Unable to make a positive identification during two

photographic lineups, the victim subsequently identified

Lavernia as her assailant in a third photo lineup, fourteen

months after the crime. /d. The Fifth Circuit affirmed the

denial of Lavernia’s habeas corpus petition, determining that

the identification was reliable under Biggers. Id. at 500. The

court found that even though such a significant period of ‘ime

had passed between the crime and the identification, “the

victim could hardly have expressed more certainty with

regard to her identification{,]” she had “ample opportunity to

view Lavernia[,] [and] . . . the description she gave the police

of the assailant accurately fit Lavernia.” /d. at SOO. Lavernia

was sentenced to ninety-nine years in prison, fifteen of which

he served until he was successfully exonerated by DNA

evidence See Innocence Project Case Profiles,

http://www. innocenceproject.org/case/display_profile. php? id

=79 (last visited on January 29, 2006).

2. Mark Reid, Served Six Years

Following a jury trial, Mark Reid was convicted

of sexual assault and kidnapping in the first degree, based in

part on the victim’s identification of him as the assailant.

State v. Reid, 757 A.2d 482, 484, 489-91 (Conn. 2000). The

victim described her attacker to police on the night of the

attack as a stocky, light-skinned black male, about 5'7", with

Div. 1987)), Brian Piszezek (State v. Piszczek, No. CR-257813, 1993 WL

106966 (Ohio Ct. App. April 8, 1993)); Walter D. Smith (State v. Smith,

No. 87AP-85, 1988 WL 79080 (Ohio Ci. App. July 28, 1988)); Danny

Brown (State v. Brown, C.A. No. L-92-297, 1983 WL 6945 (Ohio Ct.

App. Sept. 16, 1983)), Thomas Webb (Webb v. State, 746 P.2d 203

(Okla. Crim. App. 1987)), Nicholas Yarris (Commonwealth v. Yarris, 549

A.2d 513 (Pa. 1988)), Glen Woodall (State v. Woodall, 385 $.E.2d 253

(W. Va. 1989)). See also Innocence Project Case Profiles, available at

http://www. innocenceproject. org/case/search profiles. php.

19

freckles across his nose and under his eyes. /d. at 485,

Innocence Project Case Profiles, available at

http://www ..innocenceproject.org/case/display_profile.php?id

=133 (last visited on January 29, 2006). Nevertheless, while

she was shaking and crying, she selected Reid out of a

photographic lineup conducted just four days later, despite

the fact that Reid is 6'0” and the photo contained no visible

freckles. See Reid, 757 A.2d at 485, 492. Because she later

testified that she had ample time to view him during the

crime and that she had no doubt that Reid was her attacker—

indeed, the court reiterated the victim’s statement that her

attacker’s face was “a face I woud not forget”’—the court

determined that the identification was reliable under Biggers.

757 A.2d at 492-93. Both the victim and the court were

wrong. DNA test results conclusively established Reid’s

innocence; he was exonerated after serving six years.

3. Steven Toney, Served Thirteen Years

Steven Toney was convicted of rape and sodomy and

was sentenced to two consecutive life terms, largely on the

basis of eyewitness testimony. State v. Toney, 680 S.W.2d

268, 271 (Mo. Ct. App. 1984). Engaging in a Biggers

analysis, the court concluded that the victim’s testimony was

reliable because (1) she had a good opportunity to observe

the appellant’s face at least twice without distraction; (2)

“(t]he level of certainty of each of the identifications was

high”; and (3) only eight days had passed between the attack

and the photo lineup. /d. at 276. Despite discrepancies

between the victim’s original description and Toney’s

physical characteristics, the court stated that these

discrepancies were “unrelated to” the claims of

suggestiveness. /d. Before he was cleared of all charges by

DNA evidence, Toney served over thirteen years in prison.

See Innocence Project Case Profiles,

http://www innocenceproject.org/case/display_profile.php?id

=09 (last visited on January 29, 2006).

20

CONCLUSION

The empirical evidence establishing the fallibility of

eyewitness testimony and the Biggers test, which was not

expressly grounded in scientific research, is essentially

unchallenged. The growing number of exonerated criminal

defendants wrongfully convicted based on erroneous

eyewitness identifications further confirms that the Biggers

test fails to accomplish its purpose—namely, to ensure that

only reliable eyewitness identifications are considered.

Accordingly, this Court should now reconsider the Biggers

test and harmonize it with current scientific knowledge in

order to preserve the due process rights of innocent men and

women across the Nation.

Several conceivable alternatives exist to remedy the

infirmities of Biggers, such as: (1) removing the certainty

factor, as well as the other factors that have been undermined

by sociological and scientific research, from the current

analytical framework; (2) suppressing eyewitness

identifications obtained from unnecessarily suggestive

identification procedures, (3) requiring courts to issue

cautionary jury instructions; and/or (4) encouraging expert

testimony on eyewitness identification. As the Biggers test

currently stands, however, courts are bound to follow a

flawed analytical framework that is not based upon, and is

contrary to, established empirical findings.

For the foregoing reasons, and for the reasons stated in

the Petitioner’s brief, the petition for a writ of certiorari

should be granted.

Respectfully submitted.

January 30, 2006

21

JULIAN W. POON

Counsel of Record

ROD J. STONE

DANIEL M. FLORES

ARIANE J. SIMS

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071-3197

(213) 229-7000

Counsel for Amicus Curiae

The Innocence Network

() om

No. 05-596

In the

Supreme Court of the United States

JOSE ANTONIO PEREZ,

Petitioner,

Vv

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

Pamela Harris John C. O’Quinn

Co-Chair, Amicus Committee Counsel of Record

NATIONAL ASSOC-ATION OF Erin E. Morrow

CRIMINAL DEFENSE LAWYERS KIRKLAND & ELLIS LLP

1625 Eye Street, N.W., 10th Fl. 655 15th Street, N.W.

Washington, DC 20006 Washington, DC 20005

(202) 383-5386 (202) 879-5000

Counsel for Amicus Curiae NACDL

January 30, 2006

nner cere en]

QUESTION PRESENTED

Neil v. Biggers, 409 U.S. 188 (1972), requires courts to

consider the level of an eyewitness’s certainty in

determining whether an identification made during an

unnecessarily suggestive procedure is nonetheless

sufficiently reliable to satisfy the requirements of due

process. The question presented is whether this Court

should reconsider Biggers’ eyewitness-certainty factor in

light of subsequent empirical evidence demonstrating

that witness certainty has no bearing on the accuracy of

an identification—empirical evidence that has led many

federal courts to question and state courts to reject

application of that factor in assessing reliability.

ill

TABLE OF CONTENTS

Page

Ie i UE tiarhiccincthencepsntebitieetunceedeatmentatenasits i

eT FE EE i ictdenctinitnttidennitniienerninctionimnn ani

INTEREST OF THE AMICUS CURIAE 000000....cccccceseesseeeeevees l

sey Co gt Le’ \ nea l

REASONS FOR GRANTING THE WRIT..................... ima

I. THE LOWER COURTS HAVE CALLED INTO

QUESTION THE VALIDITY OF BIGGERS’

WITNESS-CERTAINTY FACTOR AND

DIVIDED OVER ITS APPLICATION. ...........::cccceeeeeees 3

A. State High Courts Applying Identical State

Constitutional Provisions Have Rejected The

I I III dcisinrenterestercnnoniicsiecrdeenncsti 4

B. Although Bound By Precedent, Federal

Courts Have Questioned Biggers Based On

Compelling Scientific Evidence. ......................000++ ..6

C. Federal Courts Are Divided Over The

Integrally Related Issue Of Expert Testimony

Concerning Eye-Witness Reliability. ...................... 9

Il. PRINCIPLES OF STARE DECISIS SUPPORT

RECONSIDERATION OF BIGGERS’ WITNESS-

RIT EE Ie WINE dosderrnicttscansntrpncdespnnsnenepcipuibavtclicgenintees 12

A. Scientific Research And Subsequent

Developments In the Law Have Robbed The

Witness-Confidence Factor Of “Significant

Application Or Justification.” ............ccccceceeeeeeeeeeees 12

B. Revisiting The Witness-Confidence Factor

Would Not Impose Any Special Hardship

Because Reliance Interests Are Not At Stake...... 14

lV

C. The Witness-Confidence Prong Is Not

Workable In Any Meaningful Sense...................... 15

Ill. THE PERVASIVE APPLICATION OF BIJGGERS’

WITNESS-CERTAINTY FACTOR DEMANDS

ET EIOTT + ieksctsisenpsstenncalsnidiresabibiainpnenceidbiinniapleeadaatininniind 15

SOUL UIET ceniccsnvivienetesenensiiacieviiiepepanbipeiannsncunncttomeciion 19

v

TABLE OF AUTHORITIES

Page(s)

Cases

Abdur-Raheem v. Kelly,

98 F. Supp. 2d 295 (E.D.N.Y. 2000),

rev'd on other grounds,

B57 F.3q 123 (Sd Civ. BOO1) ..ccrccececvceseceveccceeseess 7

Batson v. Kentucky,

le Be ik incineds tinetincciblcicbeiicictantadainiiaiiel 6

Booth v. Maryland,

Re es Ge Ce Rect orentrendadertedibctsvininnencienn 6, 14

Brodes v. State, ‘

614 S.E.2d 766 (Ga. 2005) ...................cceeee 5,18

Brown v. Board of Educ.,

gk EY, |. SRS SESE e 6,14

Commonwealth v. Johnson,

650 N.E.2d 1257 (Mass. 1995) ....................000+ <

Grayer vu. McKee,

149 Fed. Appx. 435 (6th Cir. 2005)...... 7, 17, 18

Hager v. United States,

BES ADE 23468 C.C. BODO wcccsevececcsvcrescesovssecces 10

Jones v. State,

749 N.E.2d 575 (Ind. Ct. App. 2001) ............... 5

Krist v. Eli Lilly & Co.,

897 F.2d 293 (7th Cir. 1990) ...................cceeeeees 7

Manson vy. Brathwaite,

ek Bd, y , Ee Sr ee 1]

Neil v. Biggers,

— 3:3 8 |. aes passim

Icasio v. Artuz,

No. 98-CV-7925,

2002 WL 1159892 (E.D.N.Y. May 24, 2002)... 8

Payne v. Tennessee,

GB1 U.S. BOB (1G 1) nnncecccccsecccsecevecesscccessees passim

People v. Adams,

S&S 5 1 5 | | 4

Planned Parenthood v. Casey,

4s & 0 eee 12,14

Plessy v. Ferguson,

ft § of: eee 6, 14

Rimmer v. State,

825 So.2d 304 (Fla. 2002) ............:ccccceseeecceeessees 6

Ring v. Arizona,

fis GT.) I ee eae 12

Simmons v. United States,

- 3th Gf ee ee 1}

Smith v. Allwright,

Be aces SI Ae ccrtiencsntisscnsincticmitsiipeinmuaieiet 12

Smith v. Smith,

No. 02 Civ. 7308,

2003 WL 22290984 (S.D.N.Y. Sept. 29, 2003) 8

South Carolina v. Gathers,

CBE GS 6,14

State v. Dubose,

699 N.W.2d 582 (Wis. 2005)...................00+. 4,11

State v. Ledbetter,

881 A.2d 290 (Comn. 2005) .............cccecceesereeeeees 5

State v. Long,

721 P.3d 463 (Utal 1906) .....cccccocscocccocesccosescoses 5

vil

State v. Ramirez,

817 P.2d 774 (Utah 1991).........0..cccceeees 5,10, 13

Swain v. Alabama,

eras TU I ii 6

United States ex. rel. Kosik v. Napoli,

814 F.2d 1151 (7th Cir. 1987)........ 7, 11, 17, 18

United States v. Harris,

995 F.2d 532 (4th Cir. 1993).................... 10, 11

United States v. Holloway,

971 F.2d 675 (11th Cir. 1992) ............ceccceceeeeees 2)

United States v. Lumpkin,

192 F.3d 280 (2d Cir. 1999) .........cccccccccceceeeee 25 9

United States v. Moore,

786 F.2d 1308 (5th Cir. 1986) .................:00e 10

United States v. Rincon,

2B P.2G GB1 CBGBs Cin. 19D4) occcceccccocescsccscoscccces 10

United States v. Singleton,

702 F.2d 1159 (D.C. Cir. 1983) .......ccccccccccccevees 8

United States v. Smith,

156 F.3d 1046 (10th Cir. 1998).................. 9,17

United States v. Stevens,

935 F.2d 1380 (3d Cir. 1991)............cccceeceeeeeee 10

United States v. Wade,

EO BR 0) | SR a ree a

Other Authorities

Bradfield, Amy L., et al.,

The Damaging Effect of Confirming Feedback on

the Relation Between Eyewitness Certainty and

Identification Accuracy,

87 J. APPLIED PSYCHOL. (2002) .............--00-000 13

vill

Loftus, Elizabeth,

Eyewitness Testimony (1979) «0.0.0... wae

National Institute of Justice,

Convicted by Juries, Exonerated by Science: Case

Studies in the Use of DNA Evidence to Establish

Innocence After Trial,

DOJ Pub. No. NCJ 161258 (1996)................. 16

Wells, Gary L., et al.,

Eyewitness Identification Procedures.

Recommendations for Lineups and Photospreads,

22 L. & HUM. BEHAV. (1998)............... 2, 13, 16

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS CURIAE

The National Association of Criminal Defense

Lawyers (NACDL) is a non-profit organization with direct

national membership of over 10,000 attorneys, in addition

to more than 28,000 affiliate members from all 50 States.

NACDL is the only professional bar association that

represents public and private criminal defense lawyers at

the national level.

NACDL’s mission is to ensure justice and due process

for the accused; to foster the integrity, independence, and

expertise of the criminal defense profession; and to

promote the proper and fair administration of criminal

justice, including issues involving the reliability of

eyewitness identifications.

NACDL is particularly interested in seeing the correct

rule emerge from this case, because of the scientific

consensus that witness confidence has little to do with

reliability and because misidentifications continue to be

the leading cause of wrongful convictions. ?

STATEMENT OF THE CASE

Over thirty vears ago this Court recognized that the

“annals of criminal law are rife with instances of

mistaken identification.” United States v. Wade, 388 U.S.

! The parties have consented to the filing of this brief in letters

that are on file in the Clerk's office. Pursuant to Supreme

Court Rule 37.6, amicus states that no counsel] for a party

authored any part of this brief. and no person or entity other

than amicus, its members, or its counsel made a monetary

contribution to the preparation or submission of this brief.

2

218, 228 (1967) (citing empirical research). Over the

ensuing thirty-nine years, little has changed. Indeed,

eyewitness misidentification is now the single greatest

source of wrongful convictions in the United States. See

Gary L. Wells, et al., Eyewitness Identification

Procedures: Recommendations for Lineups and

Photospreads, 22 L. & HUM. BEHAV. 603, 606 (1998).

This problem is not well addressed by the standard

crafted by this Court to ensure the reliability of

eyewitness identifications—a standard that has itself

proven unreliable. In Neil v. Biggers, 409 U.S. 188, 199

(1972), this Court held that an eye-witness identification

that is the product of an otherwise unconstitutionally

suggestive identification procedure nonetheless may be

admitted if there are certain indicia of reliability. One of

the key factors allowing admission, the Court held, is the

witness's certainty that his or her identification is

accurate.

That factor has failed the test of time. Since Biggers

was decided, empirical research consistently has shown

that the certainty or confidence of a witness bears little, if

any, relation to the reliability of an identification. Indeed,

the lack of any strong correlation between witness

certainty and accuracy is at this point beyond all

reasonable dispute. Thus, on a daily basis, courts admit

what are otherwise unconstitutionally suggestive

identifications based solely on a factor that makes no

empirical sense. Worse yet, some trial courts are

extending the MBiggers framework to preclude

unquestionably qualified experts from testifying about an

admittedly scientific fact: that eyewitness confidence has

nothing to do with accuracy. See e.g., United States v.

Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999). This Court

should grant certiorari to reconsider the five-factor

totality of the circumstances test devised by Neil v.

Biggers for three reasons.

3

First, the fact that lower courts have called into

question or outright rejected reliance on witness certainty

demonstrates that the time is ripe to revisit Biggers.

State courts of last resort applying state constitutional

provisions are free to reject the witness-certainty factor,

and many have done so. Moreover, although federal

courts continue to be bound by this Court’s holding in

Biggers—thus precluding a direct circuit splittheir

express dissatisfaction with the Biggers test has led to a

number of closely related disagreements. For example,

the circuits are hotly divided over whether and to what

extent expert testimony to contradict eyewitness

confidence is admissible.

Second, the Biggers’ witness-confidence prong is a

prime candidate for review and revision under principles

of stare decisis. The empirical basis of this aspect of

Biggers has eroded to the vanishing point; the witness-

confidence prong is only superficially workable; reliance

interests are not at stake; and, because Biggers is a

constitutional decision, it is not subject to legislative

correction.

Third, the erroneous witness-certainty factor is

applied in courts across the country every day and has

been shown to result in wrongful convictions. That alone

warrants this Court’s consideration. Little this Court

does is more important than protecting the due process

rights of defendants whose liberty and life are at stake

and ensuring public confidence in the criminal trial

process.

REASONS FOR GRANTING THE WRIT

I. THE LOWER COURTS HAVE CALLED INTO

QUESTION THE VALIDITY OF BIGGERS’

WITNESS-CERTAINTY FACTOR AND DIVIDED

OVER ITS APPLICATION.

In the decades since Biggers was decided, scientific

evidence has demonstrated beyond reasonable dispute