Director of Advocacy Programs Jules Epstein has been appointed to the Third Circuit Task Force on Eyewitness Identifications by Chief Judge Theodore McKee. Epstein is the only law professor among the 17 members of the group. The Task Force is charged with “making recommendations regarding jury instructions, use of expert testimony, and other procedures and policies intended to promote reliable practices for eyewitness identification and to effectively deter unnecessarily suggestive identification procedures, which raise the risk of a wrongful conviction.”
The Task Force is an outgrowth of a recent en banc decision in which Judge McKee wrote a lengthy concurrence talking about problems of mistaken identification, citing (among other resources) previous work by Professor Epstein. Epstein has been working on eyewitness testimony issues for nearly a decade. He served as a member of a Pennsylvania Commission on Wrongful Convictions; testified as an expert witness in New Jersey in a hearing before a Master on eyewitness error and needed reforms; and has written several book chapters and articles on eyewitness identification. In 2014, Epstein served as one of the “blind” reviewers for a National Academy of Sciences report on eyewitness issues, and for the past decade has conducted trainings on eyewitness-related issues nationally and regionally for judges, prosecutors, defense counsel and police.
The issue of eyewitness error – or the risk of eyewitness error – has been on the front burner since at least 1996, when the National Institute of Justice published Convicted by Juries, Exonerated by Science. This publication assessed the first 26 DNA exonerations and highlighted that several were cases with eyewitness testimony as the basis for the jury finding of guilt in which the DNA evidence showed the eyewitnesses to be wrong.