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Bad Eyewitness Identification

criminal defense attorneysThe Supreme Court in the State of Oregon has taken a very progressive approach to eyewitness identifications of suspects in criminal actions. In a unanimous decision, the Oregon Supreme Court changed how eyewitness identification is utilized in criminal prosecutions in Oregon. The court’s ruling shifts the burden of proof. Prosecutors in Oregon now have to show that identification is sufficiently reliable to be considered admissible into evidence at the time of trial. Experts believe that the leading cause of wrongful convictions in the United States is the misidentification of suspects by witnesses.

The Approach In New York

In New York, trial courts assume eyewitness identification of suspects is admissible. For a defendant to keep an eyewitness identification out of the evidence, he or she must show the identification by the eyewitness is unreliable. Courts in New York rely on eyewitness identifications in most criminal trials.

Memory and Perception Unreliable

The basis of the ruling by the court in Oregon is scientific research showing that memory and perception may not be completely reliable. The court stated “because of the alterations to memory that suggestiveness can cause, it is incumbent on courts and law enforcement personnel to treat eyewitness memory just as carefully as they would other forms of trace evidence, like DNA, bloodstains or fingerprints, the evidentiary value of which can be impaired or destroyed by contamination.” The court also found that even in the event the prosecution can show a well-founded basis for the eyewitness identification, the Judge in the court can still keep the identification out of the evidence if the defendant, through his attorney can establish that this identification was a result of “suggestive police procedures.”


The courts in Oregon are moving in the right direction. The state legislature in New York and the courts should consider a similar progressive approach.

About the author

assistance in criminal casesElliot S. Schlissel, Esq. has been representing individuals in the metropolitan New York area charged with felonies and misdemeanors for more than 35 years. If you are a suspect involved in a criminal case or a defendant in a criminal case call the Law Offices of Schlissel DeCorpo for a free consultation.

Eyewitness Identification Problems in Criminal Cases

lineup-150x150Are eyewitnesses always accurate in identifying alleged criminals? Recent studies have shown that in more than 75,000 eyewitness identifications, approximately 33% of the identifications were incorrect. Mistaken identifications have put thousands of Americans behind bars. There have been approximately 250 DNA exonerations in recent years. 200 of these convictions resulted from bad eyewitness identifications.

Eyewitnesses, who make statements similar to “the face of that criminal is something I will never forget”, are often wrong. Memories are fragile. Identification by witnesses of strangers is a very inexact science. The reliability of witness identifications are subject to questioning. Justice William J. Brennan, Jr. wrote in a 1991 dissenting opinion regarding a study that convincingly showed “a live human being who takes the stand, points a finger at the defendant and says, that’s the one!” has a major impact on the juries. A study by the American Psychological Association produced research that showed juries tend to give greater weight to eyewitness testimony than other types of evidence.

Supreme Court Reviewing the Issue of Eyewitness Testimony

The United States Supreme Court has recently taken a case involving issues concerning eyewitness testimony. Barry C. Scheck, who is the Director of the Innocence Project at Benjamin N. Cardoza’s School of Law located in New York, New York, stated the courts need a new “legal architecture” which judges can use in authenticated gatekeeping roles. He referred to a study submitted in a New Jersey court by a special master Jeffrey Gaulkin, which showed eyewitness identification should be treated “as a form of trace evidence: a fragment collected at the scene of the crime, like a fingerprint or blood smear, whose integrity and liability need to be monitored and assessed from the point of its recovery to its ultimate presentation at trial. This suggests judges should instruct juries about the limitations involved with eyewitness testimony. Hopefully the Supreme Court will set up a new set of guidelines dealing with the one in three mistakes made by eyewitnesses. Innocent men and women should not be convicted by victims and other witnesses who believe their eyewitness testimony is accurate, when in reality it is wrong in a third of all cases.

Criminal Defense Lawyer

If you have been charged with a crime or are under investigation for committing a crime, the Law Offices of Schlissel DeCorpo can help you. We represent individuals charged with a variety of offenses including, but not limited to, white collar crimes, violent crimes, sex crimes, weapons possession, drunk driving (DWI), shoplifting, burglary, juvenile defenses, assault and battery, domestic violence, drug offensesand all types of felonies and misdemeanors. Call us should you have criminal problems. We can help you!

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