On Friday, November 17 the Cardozo School of Law presented a conference titled “25 Years of the Innocence Project: Impact on Law, Policy and the Courts.”  This author discussed eyewitness testimony and the IP’s impact on reducing the risk of erroneous identification convictions.  The below summarize the views that were offered.



The phenomenon of eyewitness error is neither new nor limited to cases in the United States.  More than a century ago, England was confounded by the case of Adolf Beck, one where more than one dozen eyewitnesses wrongly identified Beck, an error proved only where, after his conviction, the real offender was caught.  Here in the states, the problem of eyewitness error was chronicled by Edwin Borchard more than a century ago and then publicized more fully in his 1932 book CONVICTING THE INNOCENT.

There were intermittent attempts to respond to this risk, be it in the occasional publicizing of an erroneous conviction or in the development of rudimentary constitutional protections for eyewitness identification procedures, but it was not until the groundbreaking work of the Innocence Project in using science to refute opinion evidence [‘that’s the man, I’m sure of it”] that a systemic approach to reducing the risk of eyewitness error took hold.

Let me take you to 1996, four years after the founding of the Project.  The Project’s work in exonerating the wrongfully convicted pushed the Department of Justice to do what had not been done before – ask why and how this could occur.  The result was a landmark publication –  CONVICTED BY JURIES, EXONERATED BY SCIENCE.  Then Attorney General Janet Reno convened a  task force to answer those questions, and two of the strongest voices were those of IP cofounders Peter Neufeld and Barry Scheck.  Their commentary explained that

[p]ostarrest and postconviction DNA exonerations have invariably involved analysis of sexual assault evidence (sperm), even if a murder charge was involved, that proved the existence of mistaken eyewitness identification. Since there does not seem to be anything inherent in sexual assault cases that would make eyewitnesses more prone to mistakes than in robberies or other serious crimes where the crucial proof is eyewitness identification, it naturally follows that the rate of mistaken identifications and convictions is similar to DNA exoneration cases.

The DNA exonerations continued, and with them the gathering and publicizing of compelling data – eyewitness error, including errors by multiple eyewitnesses in individual cases, were a cause of wrongful conviction in roughly 75% of the cases.  Not content to correct past wrongs, the IP turned its eye to the present and future.  The IP led or joined in litigation and policy initiatives to force improvements in the courts; be it in suppression standards, the right to present expert witness testimony, or model jury instructions.  This happened in New Jersey in the pioneering Henderson litigation; and here in Pennsylvania the IP offered guidance when the Walker case ended a decades-long ban on expert testimony in eyewitness cases. Equally important has been its commitment to training lawyers in how to litigate identification cases.

The constant re-examination of old convictions had another effect, one that may be the most significant.  Police learned from their mistakes, and in the past decade have been forceful advocates for implementing best practices.  There is no stronger voice for change than a conscientious cop who arrested someone in good faith, trusting an eyewitness, only to later learn that DNA showed the witness to have been 100% sincere but 100% wrong.  Again, with IP leadership, the training of police and the pursuit of “best practices” have taken major strides.

Progress has not been uniform or unhalting.  The most serious setback came in 2011 in the Perry case when the United States  Supreme Court declined to use science to reconfigure the standards for when an identification must be suppressed.  Yet the more things stayed the same the more they changed.  State courts took the lead with innovations in jury instructions, suppression standards, restrictions on in-court identifications, and the use of evidence rules to reduce eyewitness error; and state and federal courts more generally have come to realize that just because an eyewitness said “that’s the man” a case is not necessarily rock solid.

The conversation has clearly changed, although more has to be done.  Sadly, many defense lawyers have not absorbed the lessons or even rethought the fundamentals of an eyewitness case; and too often prosecutors and police still take the eyewitness’ word as gospel.

Whatever remains to be done, we are infinitely better off today concerning eyewitness accuracy than we were 25 years ago.  And the fulcrum for so much of that change has been the Innocence Project.  351 exonerations to date, but many times more cases where there was no wrongful conviction to need redressing.