Study after study has demonstrated beyond any doubt that eyewitness identification of strangers is inherently unreliable. In light of that, it was particularly distressing to me to learn that the Supreme Court this week was completely hostile to an advocate who was pressing for a rule limiting the use of this unreliable evidence. Accounts of oral arguments in the case of Perry v. New Hampshire show that every Justice, liberal and conservative, seemed hostile to the idea.
There is ample language in past Supreme Court decisions about how unreliable such testimony is. But the current Court seems to think that it would be too much of a burden to impose on the judicial system to establish a new evidentiary standard. One Justice spoke of having a "trial within a trial", as if this does not happen already. I have two examples of this from my limited criminal trial experience. A young boy was examined to determine whether he could testify, i.e., whether he knew the difference between a lie and the truth. When it was determined he did not, then the statute giving an exception to the hearsay rule kicked in and the jury was allowed to hear his statement to his mother about what had allegedly happened to him while she was gone.
Another case involved the DA's attempt to use evidence of prior similar crimes. The Judge, who was pretty dim, disallowed it. Then during the trial the detective testified that when he heard the report of the burglary, he dispatched a unit to the defendant's house, so closely did the MO match that of his prior acts. I suppose the DA should have brought that out during the "trial within a trial", but the defendant got convicted anyway.
The court system continues to deny admissibility of polygraph evidence while allowing fallible eyewitness testimony in, even though the former is many times more reliable than the latter. I just wonder how many innocent defendants have to be convicted, and, in many instances sent to death row, before the justice system wakes up.
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