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Life of a Law Student, University of Houston Law Center

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Thompson on Eyewitness Identification Testimony

By: Luke Gilman | Other Posts by
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Houston Law Prof Sandra Guerra Thompson (my own crim law prof) has posted a new paper, Beyond a Reasonable Doubt?: Reconsidering Uncorroborated Eyewitness Identification Testimony, to SSRN, publication forthcoming at UC Davis Law Review.

Pointing out that “eyewitnesses identify a known wrong person (a “filler” or “foil”) in approximately twenty percent of all real criminal line-ups” and that “erroneous eyewitness identifications are by far the leading cause of convicting the innocent,” Thompson notes that courts nevertheless treat eyewitness testimony with a presumption of reliability that seems unfounded.

Given that background, there are disturbing statistical gaps – the percentage of exonerations on the basis of DNA evidence, mostly rape cases, suggests that in cases in which there is seldom DNA evidence (robbery, burglary, assault with a deadly weapon, etc.) there is a false positive rate that remains unknowable but is likely much higher than it should be. Thompson asserts that “if DNA evidence were available in robbery cases, we would likely have an additional four times the numbers of individuals exonerated to date, and these would only include cases dating back about twenty years.

The solution is a corroboration element for the eyewitness identification of strangers -

A simpler and more effective approach to systemic reform would shift the focus away from what the police do or fail to do in gathering evidence, and focus instead on changes to the rules of criminal procedure that govern the sufficiency of evidence for conviction…. exclud[ing] from those cases in which victims and culprits knew each other prior to the date of the crime.

A corroboration requirement operates at the investigative stage, making it incumbent on police investigators to continue their investigations even after obtaining a positive identification.

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