Convicting with Our Eyes Open: Regulation of Eyewitness Identification in the United States and England and Wales


This Note considers whether the U.S. Supreme Court’s current standard for regulating eyewitness identification evidence is satisfactory.  Many years of research have shown that this type of evidence can be dangerous to our criminal justice system by contributing to mistaken convictions.  Yet, because eyewitness evidence can be probative and is readily available, we tolerate its continued use so long as safeguards are in place to minimize risk of error.  This Note looks at what these safeguards entail, and argues that what we presently have is grossly inadequate.

Part I compares the U.S. Supreme Court’s approach to evaluating eyewitness evidence with that of England and Wales, and finds that the former is significantly less protective of criminal defendants.  Part II examines how states have responded to the federal standard, discovering that a growing number have departed, some more subtly than others, from the federal benchmark.  Even among those states that have devotedly followed U.S. Supreme Court precedent, a handful have expressed deep concern with the federal standard.  Part III suggests that the U.S. Supreme Court should, in light of the English experience, post-Manson case law, and psychological research, revise the federal standard.  The Court should replace its current standard with a new standard, taking the form of a penalty default, that asks two independent and equally weighty questions:  (1) do conditions surrounding the observation make the observation of the identification unreliable?; and (2) were suggestive procedures used in the identification process?  If the answer to either question is “yes,” then the resultant evidence should be excluded.


54 Colum. J. Transnat'l L. 248