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Although most of the outrage over the Troy Davis execution has disappeared from the media, I was reminded of the case today when I ran across an article in the Skeptical Inquirer, the house journal of the Committee for Skeptical Inquiry.

More after the squiqqle-fence.

The short article, titled "New Jersey Supreme Court Overhauls Eyewitness ID Rules", hits directly at the major issue in the Davis case--the use of eyewitness testimony at trial (in Davis' case, the major evidence used to support his conviction).

Ironically, the article references an August, 2011 decision by the NJ Supremes which tightened rules around the use of eyewitness testimony--a month before Davis' execution.

The Court decided, based on evidence provided over the last several decades by psychological researchers, to require that when a defendant presents evidence that an eyewitness identification was influenced by police, the judge must convene a hearing to consider "a broader range of issues"--presumably, what kind of biases may have been introduced by police coercion, and what facts are now known about the unreliability of eyewitness accounts.

As noted in the article (which also references a NYT article here) Chief Justice Stuart J. Rabner, in the unanimous decision, wrote:

Study after study revealed a troubling lack of reliability in eyewitness identifications.... From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real.  Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country [emphasis mine].

The NYT article also references a SCOTUS case coming up in November related to the issue of eyewitness testimony (here).  In this case, Perry v. New Hampshire, SCOTUS has agreed to review (in a limited fashion) the use of eyewitness testimony, some 34 years since the last time they ruled in such a case.

2,000 studies since that 1977 ruling have transformed our understanding of human memory.  From the same NYT article:

What they collectively show is that it is perilous to base a conviction on a witness’s identification of a stranger. Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.

The unreliability of eyewitness identification is matched by its power.

“There is almost nothing more convincing,” Justice William J. Brennan Jr. wrote in a 1981 dissent, quoting from a leading study, “than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’ ”

There's no telling how this Court will rule--they have been reluctant in the recent past to attempt to remedy defects in the criminal justice system on Constitutional grounds--but we can be hopeful.

And, while it's too late for Troy Davis, perhaps what New Jersey has done might one day prevent tragic miscarriages of justice based on a witness saying "That is one face I will never forget."

Originally posted to rfall on Sat Oct 15, 2011 at 02:47 PM PDT.

Also republished by Injustice and how to fix it: Making the justice system work better..

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