Mya Zajakowski, J.D. Candidate, 2024, Indiana University Robert H. McKinney School of Law; B.S. in Neuroscience, 2021, Indiana University Purdue University Indianapolis – Indianapolis, Indiana.
Introduction
“You’re going home. It’s over.”[1] For a quarter century, Darryl Pinkins waited to hear those words.[2] For a quarter century, Darryl Pinkins missed birthdays, Christmases, and Thanksgivings. For a quarter century, the world passed Darryl Pinkins by. For a quarter century, Darryl Pinkins sat in prison for a crime he did not commit.[3]
On December 7, 1989, Darryl Pinkins and two of his coworkers were enjoying a night out when their car broke down.[4] The men left to find help. When they returned, they discovered their car had been broken into and their work coveralls were stolen.
Later that night, a twenty-seven-year-old woman was rear-ended while stopped at a red light in Hammond, Indiana.[5] When she stepped out of her car to check the damage, a man asked, “Are you all right?”[6] She didn’t get to answer; the man grabbed her arm with one hand and grabbed her purse with his other hand. Other men dragged her into the back of their car, taking turns sexually assaulting her. The whole time, the stolen green coveralls covered the victim’s face.
Despite Darryl and his coworkers reporting the stolen coveralls, the coveralls became one key piece of evidence connecting Darryl to the case. However, based on this evidence police arrested Darryl and two of his coworkers.
Once arrested, police performed several DNA tests that excluded Darryl and his coworkers from possible contributors to the DNA left at the scene. Instead, the state offered evidence that Darryl and his coworkers’ DNA were included based on serological testing—a much less exacting process. The serology evidence would later be considered overstated and irrelevant. Even so, the police charged Darryl with rape, deviant sexual conduct, and robbery.[7]
The other key piece of evidence was the victim’s late, prejudicial identification.[8] On the day of the accident, the victim insisted she did not see enough to make an identification. For months she could not identify any of the perpetrators. Yet at a pretrial conference, in a busy courtroom, the victim identified Darryl as the first man to approach her and the fourth man to rape her. The identification should have been inadmissible. Some speculate the police pressured her into making the identification. Still, the victim made her identification, and the jury would hear it. On May 3, 1991, the jury convicted Darryl of rape, deviant sexual conduct, and robbery.[9] He was sentenced to sixty-five years in prison.[10]
But Darryl was innocent. And he would prove it. For eight years, after writing dozens of letters to wrongful conviction projects, there was only silence. One day, Darryl was heard. For seventeen years Professor Fran Watson and the Indiana University Robert H. McKinney School of Law Wrongful Conviction Clinic worked on Darryl’s case. Eventually, with the development of new DNA profile technology, there was enough DNA analysis evidence to grant Darryl a new hearing. After wrongfully serving twenty-five years, the state moved to vacate Darryl’s conviction.[11]
Starting over at sixty-four is hard. He struggled to find employment. His driver’s license expired. Darryl was forced to adapt to a new world after spending 9,082 days behind bars for a crime he did not commit.[12] Eyewitnesses are not infallible. The police are not perfect. But, unfortunately, “what happened to Darryl happens all the time.”[13]
This Note proposes that Indiana should look toward the mirrored rationale in implementing a heightened standard for expert testimony as a guide for a heightened admissibility standard for identification evidence. Part I explains how an eyewitness’s memory works and explains various variables that may influence “remembering.” Part II examines the federal jurisprudential background and different procedures for the admissibility of eyewitness identification. Part III examines the federal, heightened, standard for the admissibility of expert testimony and compares the ineffective safeguards of expert testimony and eyewitness identification evidence. Part IV argues that, because of the uniqueness of eyewitness identification, Indiana should break from the federal standard for admissibility of eyewitness identification evidence and adopt a procedure that focuses on evidentiary procedures rather than due process.
I. Cognitive Science & Eyewitness Identification
Memory does not function like a video recorder.[14] A witness must do more than just replay a tape to remember an event. Despite this misconception, juries often defer to eyewitness testimony regardless of the circumstances surrounding the identification. Unlike a video recorder, memory is a reconstructive process and is therefore highly susceptible to distortion and dilution at any stage of remembering.
A. Variables Affecting Eyewitness Identifications
There are two types of variables that affect eyewitness identification.[15] First, there are system variables, which are variables controlled by the police. Second, there are estimator variables, which are variables that may affect memory that are outside police control.
1. System Variables—System variables may distort an eyewitness’s identification and are within the legal system’s control. Because the reliability of eyewitness identification evidence hinges on police lineup procedures, police must work to ensure an eyewitness’s identification is diagnostic—that is, that the witness’s untampered memory is tested.[16] Clinical psychologists recommend five conditions police should implement when conducting a diagnostic lineup: (1) one suspect per lineup; (2) the suspect should not stand out; (3) unbiased instructions; (4) double-blind administration; and (5) confidence judgment at the time of identification.[17]
The first “pristine” condition, one suspect per lineup, reduces the risk of misidentification from guesswork. A lineup with multiple suspects is like a multiple-choice test with multiple correct answers.[18] Therefore, a proper lineup is constructed so that a witness may “fail” by selecting an innocent filler.
Second, in a diagnostic lineup, the suspect must not stand out.[19] If the suspect stands out, a witness will likely select the suspect as the person standing out, whether or not the suspect is the actual offender. Additionally, adding fillers with no resemblance to the described perpetrator will artificially increase a witness’s confidence because the choice seemed obvious. Thus, police officers must carefully select lineup members to ensure a witness’s memory is properly tested.
Third, unbiased identification instructions are diagnostically important because words prime a witness to the desired result.[20] Unlike a multiple-choice question, there is not necessarily a correct answer. In fact, in most wrongful conviction cases, “none of the above” is the correct answer. [21] Therefore, to limit guesswork, a witness should be given unbiased instructions such as “the perpetrator may not be in the lineup.”[22] A witness should make an identification because a lineup member matches the witness’s recollection, not because the witness is pressured to make a selection.
Similarly, leading questions may improperly prime a witness.[23] As a result, police officers should avoid asking leading questions. For example, in an early study, a group of undergraduate students watched a slideshow depicting a red car driving and hitting a pedestrian.[24] Interviewers then asked leading questions to one group of students, like “How fast was the car traveling when it passed the yield sign?”[25] But the original sign was not a yield sign; it was a stop sign. After the first interview, all students were shown two slides: the original slideshow with the stop sign, and a replacement with a yield sign. When asked to identify the original slide, subjects could not discriminate between the sign they saw and the sign they heard. Most subjects incorrectly selected the yield sign. The results of this study are echoed throughout scientific literature; this study is but one of hundreds that highlight the malleability of memory under suggestive conditions.
Fourth, a double-blind procedure occurs when a lineup administrator does not know which lineup member is the suspect—they are blind.[26] A double-blind procedure helps reduce pressure from the administrator to choose the suspect. This is not an integrity issue; rather, “[e]ven seemingly innocuous words and subtle cues—pauses gestures, hesitations, or smiles—can influence a witness’s behavior.”[27] Yet a witness is often unaware of the cues. Moreover, during a blind procedure, the administrator cannot provide feedback to the witness, which would artificially inflate the witness’s confidence and potentially reinforce a false memory.
Finally, although a confidence value incorporates estimator variables, a police officer should collect a confidence rating after every eyewitness identification.[28] Because an eyewitness is likely to have a reinforced memory and inflated confidence when testifying, only the confidence rating at the time of identification should be used by police, jury, and judge.
Despite implementing pristine conditions, only an eyewitness’s first identification is diagnostic. It is hard to decipher whether a second identification stems from a memory of the original event or a memory of the previous identification.[29] Memory is reconstructive, meaning the second identification is prejudicial because the witness likely has a stronger memory signal after viewing the suspect in the first lineup and later finding a sense of familiarity with the suspect, even if innocent.
Even so, any omission of these five “pristine” factors should color the lineup procedure “impermissibly suggestive.”[30] Although witnessing occurs outside the presence of the legal system, the legal system can help ensure a witness’s memory is accurately recorded. The legal system failed Darryl Pinkins because the police did not conduct a lineup using these “five” pristine factors; instead, the victim identified Darryl in a crowded courtroom.[31]
2. Estimator Variables—Although a witness makes a formal identification in the presence of the legal system, variables in the witnessing of a crime may also undermine the memory and later the identification of the perpetrator.[32] In the landmark New Jersey case, State v. Henderson, the New Jersey Supreme Court determined that eyewitness memory may be distorted by conditions outside police control, and therefore appointed a Special Master to evaluate scientific research on eyewitness reports. The Special Master recognized several common factors that may distort a memory such as stress, weapon focus, duration, distance and lighting, witness characteristics, characteristics of the perpetrator, memory decay, racial bias, private actors, and speed identification.[33] Additionally, these variables may affect how the event is initially perceived by the witness, retained, and later retrieved.
Some estimator variables intuitively impact a witness’s identification; other variables are not intuitive. For example, many jurors incorrectly believe that witnessing a highly stressful event creates a strong and detailed memory. However, the memory of a perpetrator is generally worse for a highly stressful event with a weapon present.[34] Other factors like cross-race identification, brief exposure, poor lighting, and longer duration between the witnessed crime and the lineup intuitively result in worse memory for the perpetrator.[35]
It is difficult for the legal system to combat most of these problems. Although estimator variables occur outside, and likely before the involvement of the legal system, police can help reduce memory distortion by conducting a fair lineup using pristine conditions. In Darryl’s case, although many estimator variables were present during the crime, police still did not conduct a fair lineup because the victim insisted she did not see enough to make an identification.[36] Likewise, a confidence rating after the initial identification provides some reassurance for the accuracy of identification from imperfect witnessing conditions.[37]
3. Confidence—Although memory may be distorted by system and estimator variables, eyewitness identification may still be trusted as a useful tool in the legal system. Contrary to the blanket statement that all “eyewitnesses are unreliable,” new research suggests that an eyewitness’s memory is highly reliable on the first, uncontaminated test conducted early in the police investigation.[38] Eyewitness memory is reliable in that, on the initial test, low confidence implies low accuracy and high confidence implies high accuracy. Further, a high-confidence identification in an uncontaminated initial test is likely to be very reliable, while identification with a low-confidence rating is always of questionable reliability. If prompted, a witness will likely give a truthful confidence rating because each memory includes metacognition, which unlike memory is not easily influenced. [39] Therefore, individuals with a weaker memory, for any reason, tend to avoid reporting such memories and usually do so vaguely with low confidence.[40] Thus, simply knowing a confidence rating will help mitigate the negative consequences of estimator variables because it provides a measure of accuracy.
In a case study analysis of DNA exonerations where misidentifications were a major factor in convictions, the significance of a confidence rating is clear.[41] Out of ninety-two exonerated cases, not one witness reported high confidence in their initial identification.[42] Indeed, in many cases, witnesses failed to select the defendant. Some hesitantly selected an innocent filler, stating “I think this is the guy.”[43] Despite their initial incorrect identifications and hesitancy, at trial, each witness confidently identified the defendant as the perpetrator. This case study highlights that memory is fallible; confidence in a memory is inflated when the suspect is charged with the crime.
In the courtroom, eyewitness misidentifications are almost always made with high confidence.[44] This high confidence is rarely reflected in the initial identification during police investigations. In fact, many eyewitnesses first identified the suspect with low confidence or failed to identify the suspect at all. For example, in Darryl’s case, the victim insisted for months that she could not make an identification. But at a pretrial conference, in a crowded courtroom, the victim confidently misidentified Darryl as one of the men that raped her. [45] Therefore, only the confidence rating at the initial identification should be used in a court of law. Despite this, Indiana provides no safeguards to prevent the admission of eyewitness identification evidence influenced by estimator variables or made with low confidence. Indiana’s failure to provide protections to defendants is a failure of the judicial system—a system that wrongly imprisoned Darryl Pinkins for a quarter of a century.
II. Jurisprudential Background
Estimator variables affect an eyewitness’ ability to perceive and remember an event. Yet the current admissibility standard at the federal level—Indiana’s standard—does not account for these non-police-orchestrated variables.[46] Before an analysis of integrating system and estimator variables into Indiana’s legal system, this Note examines the current federal approach and other state reforms for the admissibility of eyewitness identification.
A. The Manson Admissibility Test
The U.S. Supreme Court summarized the current federal approach in Manson v. Brathwaite and balanced the need for eyewitness identification with the harmful effects an unreliable identification poses to a defendant’s due process right. In Brathwaite, the Court devised a two-prong test declaring that “reliability is the linchpin in determining the admissibility of identification.”[47] The first prong asks whether the identification procedure was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”[48] A court will thus admit an identification arising out of suggestive conduct so long as the conduct does not rise to the level of “impermissibly suggestive.”[49] Even so, identifications resulting from impermissibly suggestive police procedures may still be admitted if the second prong is satisfied.
The second prong asks whether the evidence is reliable under the “totality of the circumstances,” examining the five factors outlined by the United States Supreme Court in Neil v. Biggers factors (the “Biggers Factors”).[50] The Biggers factors include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.[51]
If the court finds that the eyewitness identification was reliable under the “totality of the circumstances,” then the evidence is admissible even if the identification resulted from “impermissibly suggestive” police procedures.[52] State courts have added to these factors, supplementing the reliability factors with emerging psychological evidence.[53] The Biggers factors, however, do not account for system and estimator variables shown to undermine the reliability of an identification.[54] Therefore, Manson’s “impermissibly suggestive” threshold is too strict, and the factors weighed are underinclusive.
In devising this admissibility procedure, the Manson Court inherently suggested that eyewitness identification evidence is susceptible to error; it must be screened for “indicia of reliability” before being presented to a jury.[55]Thus, Manson conferred the jury’s role of accessing credibility to a judge. Once a judge finds that the evidence has “aspects of reliability . . . juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.”[56] But this belief contradicts modern psychology and the futility of jury instructions—most jurors cannot accurately weigh the reliability factors when a confident witness is on the stand. Even so, the U.S. Supreme Court recently reaffirmed the Manson admissibility procedure, and it continues to be used.[57]
B. The Manson Admissibility Test Reaffirmed in Perry
In 2012, the U.S. Supreme Court addressed a third criticism of the Manson test—that due process protection applies only to police misconduct.[58] In Perry v. New Hampshire, the Court held that the admissibility test arises only from “impermissibly suggestive” conduct “arranged by law enforcement.”[59] Perry stressed that events outside police control do not trigger the Manson admissibility test because the inclusion of suggestive estimator variables would result in a “vast enlargement of the reach of due process as a constraint on the admission of evidence.”[60]
The Court also rested its “unwillingness to enlarge the domain of due process” on the traditional role of the jury to determine the reliability of evidence.[61] However, Manson made clear that a judge, not the jury, should assess reliability because the jury cannot hear identification testimony unless it has “aspects of reliability.”[62] Thus, the Court’s fear of usurping the role of the jury contradicts the precedent Perry built on.
In her dissent, Justice Sonia Sotomayor, a former trial court judge, and assistant district attorney,[63] highlighted that neither the Confrontation Clause nor cross-examination provides an adequate safeguard for unreliable identifications because the identification may be “hindered by a witness’ false confidence in the accuracy of his or her identification.”[64] Before an analysis of the judicial system’s inadequate safeguards to eyewitness identification evidence, this Note addresses two state approaches that attempt to resolve Manson’s ineffectiveness with modern science.
C. Other State Reform
Although many states, including Indiana, follow Manson, some states have adopted a new admissibility test encompassing modern scientific research.[65]
1. New Jersey—In Henderson, the New Jersey Supreme Court assigned a Special Master to evaluate scientific research on eyewitness reports because the Manson admissibility test“does not offer an adequate measure for reliability.”[66] After the Special Master presided over the testimony of seven experts, producing over 2,000 pages of transcripts, the Special Master issued a report stating “[m]ost misidentification stem[s] from the fact that human memory is malleable.”[67] Most notably, the Special Master outlined that research revealed that system and estimator variables may affect and dilute memory leading to misidentifications.
Subsequently, New Jersey retooled its state’s constitutional due process test by incorporating the Special Master’s research into the Manson test.[68] In the new test, the defendant still bears the initial burden to present evidence of suggestiveness—from system or estimator variables—to obtain a pretrial hearing on the admissibility of the identification. Only then must the State show that the identification was reliable. For identification evidence to be suppressed, the defendant must show a “substantial likelihood of irreparable misidentification” resulting from improper police procedure.[69] If an eyewitness identification is admitted, the jury will receive case-tailored jury instructions that describe estimator and system variables present in the witnessing and identification of the defendant.
Henderson is an important first step in changing eyewitness identification admissibility procedures to encompass modern science, but it is incomplete. Although Henderson reduced the “impermissibly suggestive” threshold to “suggestive,” Henderson’s procedural changes only alleviated identification errors caused by system variables. The New Jersey Court highlighted that estimator variables must accompany a suggestive system variable to trigger a pretrial hearing. Thus, at a practical level, Henderson is no different from Manson.
2. Oregon—The Oregon Supreme Court, in Lawson, recognized that Manson did not adequately encompass modern research and the key principles of the criminal justice system—accountability and fairness.[70] The Oregon Court created a more adaptable, evidentiary admissibility procedure that recognized scientific research as “probabilistic;” the idea that research cannot demonstrate that any specific witness is right or wrong, reliable or unreliable, in the identification.[71] In creating this new test, Lawson recognized that system and estimator variables may contaminate identification evidence. Thus, it is incumbent that courts and law enforcement treat witness memory as carefully as other forms of evidence. Like DNA, bloodstains, and fingerprints, once contaminated, there is little evidentiary value.
The Oregon test deviates from both the federal due process rationale and New Jersey’s science-informed framework. The Oregon Supreme Court determined that trial courts are “evidentiary gatekeeper[s].”[72] Under Lawson, if a defendant challenges the reliability of eyewitness identification by filing a pretrial motion, the State must demonstrate all preliminary facts to establish reliability, including (1) that the eyewitness has “personal knowledge” of the matters to which the witness will testify;[73] and (2) the identification was rationally based on the witness’s first-hand impressions and helpful to the jury.[74] Only when the State satisfies its burden, and the evidence is not barred by other evidentiary rules,[75] must the defendant show that the “probative value of the evidence substantially outweighs” the danger that the evidence will confuse, mislead, or unfairly prejudice the jury.[76]
While Manson requires a defendant to present evidence of “impermissible suggestion,” Lawson shifts the initial burden to the State to show the reliability of the identification.[77] Although Lawson is a significant first step in shifting the burden of eyewitness identification evidence, it is incomplete. In that regard, defendants are generally only successful in a pretrial ruling when estimator variables are coupled with system variables.[78] But by recognizing that science research is “probabilistic,” Oregon created an evidentiary test that is flexible and “is not intended to preclude any party in a specific case from validating scientific acceptance of further research.”[79]
Importantly, the Court in Lawson placed the onus on the legal system while recognizing the negative effects of estimator variables stating, “We believe that it is imperative that law enforcement, the bench, and the bar be informed of the existence of current scientific research and literature regarding the reliability of eyewitness identification because . . . the reliability of eyewitness identification is central to a criminal justice system.”[80]
Like, Henderson and Lawson, the Indiana Public Defender Council (IPDC) recognized the consequences that system and estimator variables have on the reliability of an eyewitness identification.[81] Therefore, IPDC proposed a new evidentiary rule that attempts to ensure law enforcement follows best practices when conducting an identification procedure. Unfortunately, this proposed rule failed due to the rule’s vagueness. Indeed, Indiana’s eyewitness reform is lagging, and Indiana should look to propose a better, more precise rule for the admissibility of identification evidence drawing from Daubert—an admissibility standard already codified.[82]
III. Drawing from Daubert’s Evidentiary Approach
The concerns highlighted by Justice Sotomayor’s dissent regarding the ineffective safeguards for eyewitness identification evidence are parallel to the rationale used in the admissibility of expert testimony.[83] That said, expert testimony has a heightened evidentiary admissibility standard while eyewitness identification relies on a mere due process admissibility analysis.[84]
A. Daubert v. Merrell Dow Pharmaceuticals, Inc.
Although trial courts acting as “gatekeepers” in the context of eyewitness identification is relatively new, courts have long recognized that scientific evidence and expert testimony are highly persuasive to jurors, and thus require a heightened admissibility standard.[85]
The current federal standard is outlined in Daubert v. Merrell Dow Pharmaceuticals. Inc. and Federal Rule of Evidence 702.[86] Daubert broke from a “general acceptance test,” and created an adaptable test requiring that scientific evidence be both relevant and reliable to be admissible.[87] Therefore, at the outset of a trial, trial courts must serve as gatekeepers and assess “whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.”[88] Daubert highlighted several factors for a trial court to consider, including whether the scientific theory or technique has been tested; whether the scientific theory or technique has been peer reviewed; the rate of error associated with the scientific theory or technique; and the scientific theory or technique’s general acceptance.[89] Subsequently, the trial court’s gatekeeping role extended to the reliability of all expert evidence—not just scientific.[90]
1. Daubert’s Rationale for Heightened Standard—When Daubert gave the role of assessing the reliability of the expert witness to the judge, the U.S. Supreme Court displaced a role typically in the province of the jury.[91] However, the Court shifted this analysis to a judge because “junk science”[92] maintains significant reliability concerns.
Expert testimony is also meant to educate jurors. As a result, jurors are likely to heavily rely on the expert’s testimony because the juror has no foundational background to compare and evaluate the testimony.[93] This concern is highlighted in the prevalent use of multiple competing experts at trial.
To address the unique danger of unreliable and highly persuasive expert testimony, Daubert imposed a heightened standard for the admissibility of scientific and technical information, with a trial judge acting as a gatekeeper.[94] Although Daubert displaces the traditional paradigm of the judge/jury relationship, the Court concluded that expert scientific testimony presented enough risk to justify allowing a judge to assess the reliability of a witness. When a judge assesses the reliability, a jury will only hear reliable evidence and evaluate the weight of the evidence. This distinction is important to the integrity of the legal system because expert testimony can influence the outcome of a trial, and unreliable information can mislead the jury. A juror cannot unhear information, and, therefore, should only hear credible facts.
B. Ineffective Safeguards
The current admissibility test for eyewitness identification evidence is inadequate. One need only read about Darryl Pinkins and the hundreds of others wrongfully convicted due to flawed identifications to see this.[95] But misidentification is not a new concern. In 1967, the U.S. Supreme Court recognized that “the annals of the criminal law are rife with instances of mistaken identification.”[96] After nearly fifty years, mistaken identification is still a grave concern. One study estimated that 975 people are wrongfully convicted every year.[97] While mistaken identification does not contribute to all wrongful convictions, it is prevalent in many cases; mistaken identification contributes to approximately sixty-nine percent of wrongful convictions in the United States overturned by post-conviction DNA analysis.[98]
Eyewitness identification evidence is a common and compelling form of evidence justifying additional scrutiny because it possesses a “unique confluence of features . . . [that] can undermine the fairness of a trial.”[99] Unreliable evidence is often admitted knowing that a jury ultimately decides the credibility of a witness, based in part on the witness’s demeanor.[100] Therefore, traditional safeguards such as jury instructions, the Confrontation Clause,[101] and cross-examination fail to mitigate the power and potential unreliability of an eyewitness.
Although cross-examination is meant to highlight weaknesses in a witness’s testimony, a witness is likely to have inflated confidence on the stand; the reliability of an eyewitness’s memory is “never lower than it is when ultimately tested in a court of law in front of a jury.”[102] Cross-examination is a truth-seeking function—an eyewitness is generally not untruthful but mistaken. Thus, a jury is unlikely to glean any meaningful information about the credibility of an identification because an eyewitness often believes their identification is correct, even if mistaken by system and estimator variables.
Cross-examination is also ineffective because jurors are generally unable to separate reliable from unreliable eyewitness testimony. For example, jurors are particularly impressed with eyewitnesses who express confidence in their identification of the perpetrator on the stand. Indeed, “there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘that’s the one!’”[103] However, as noted above, confidence on the stand does not correlate with confidence at the time of identification.
In turn, this inability to determine reliability defeats the purpose of the Confrontation Clause[104] and “jeopardizes the defendant’s basic right to subject his accuser to meaningful cross-examination.”[105] Thus, cross-examination will not provide a safeguard or help a jury determine the reliability of the eyewitness identification testimony.
Jury instructions also do not provide an adequate safeguard because jurors do not understand that memory is reconstructive and does not function like a video recorder.[106] Because the process of remembering is beyond a juror’s scope of knowledge, jury instructions are often ineffective to aide in determining reliability. Rather, jurors generally default to whether the juror believes the witness based on the witness’s demeanor. As stated in Lawson, “scientific research . . . enjoys strong consensus . . . that many factors affecting eyewitness identifications are unknown to average jurors or are contrary to common assumptions, and . . . and generalized jury instructions are not effective.”[107] Even case-tailored instructions are futile because studies establish that jurors believe a highly confidence witness regardless of the instructions.[108]
Despite these shortcomings, eyewitness identification evidence is often very probative of guilt and, in many cases, may be the only evidence connecting a guilty defendant to a crime. For example, a British investigation of criminal convictions based on eyewitness identification observed that British juries found criminal defendants guilty in seventy-four percent of cases in which eyewitness identification testimony was the only evidence against the defendant.[109] In Darryl’s case, Lake County Prosecutor Bernard Carter agreed that Darryl would not have spent a quarter of a century wrongfully imprisoned but for the flawed identification.[110] Thus, eyewitness identification evidence is a crucial aspect of the judicial system and must be appropriately balanced with a defendant’s right to due process.
C. Comparing Expert Testimony to Eyewitness Identifications
The potential unreliability of expert evidence, a jury’s inability to evaluate the reliability of expert testimony, and heavy reliance on expert evidence served as important considerations in the Daubert heightened standard. Eyewitness identification mirrors these concerns. In fact, courts have long recognized the potential inaccuracy and unreliability of eyewitness identification evidence.[111] Therefore, like expert testimony, eyewitness identification evidence presents enough risk to justify the displacement of the traditional paradigm of the judge/jury relationship.
The dangers of unreliable eyewitness identification possess the same danger as expert testimony: “the danger of the jury being taken in by an aura of expertise—can take precedence over the traditional roles of the judge and jury.”[112] Similarly, there is a danger of the jury being taken in by the aura of an eyewitness because an identification, however untrustworthy, is “taken by the average juryman as absolute proof.”[113] Additionally, an identification by a “well-intended uninterested person[] is commonly accepted unless the alibi is convincing.”[114] This inclination might partially be explained by sympathy for the victim. Even so, because juries are unduly persuaded by identification evidence and are not sufficiently aware of its dangers, an equivalent rationale exists for identification evidence to deserve a heightened evidentiary standard deemed necessary for experts in Daubert.
Additionally, the inability of jurors to evaluate the reliability of expert evidence served as an important consideration for the heightened standard. Scientific and technical information generally surpasses the understanding of jurors; therefore, jurors often heavily rely on expert testimony because the juror has no body of knowledge to gauge the accuracy of the expert. Equivalently, many jurors are unaware that memory is reconstructive, and even the act of remembering may distort a memory.[115] Jurors also have little conception of how system and estimator variables affect a witness’s memory—the variables do not always have intuitive consequences. Therefore, a juror may default to the witness’s testimony, especially if done so on the stand with inflated confidence.[116]
Thus, as with expert testimony, eyewitness identification evidence is vulnerable to the danger of unreliability coupled with the jury’s inability to evaluate the reliability of the identification. In Daubert, the Court found this unique combination compelling enough to impose a heightened admissibility standard for expert testimony, redistributing a jury’s role of assessing witness credibility to the trial court through Federal Rule of Evidence 702. Similarly, this Note proposes that due to the mirrored unique combination of dangers, Indiana should follow the lead of other states and break from Manson.
IV. Proposed New Framework for Indiana
Like Daubert, eyewitness identification evidence presents a mirrored combination of negative factors that compelled the U.S. Supreme Court to impose a heightened standard of admissibility.[117] Thus, like Daubert, Indiana should impose a heightened evidentiary standard for the admissibility of eyewitness identification evidence to mitigate the dangerous combination. Although this procedure may invade the traditional province of the jury to determine reliability, the intrusion is justifiable because of the unique dangers and ineffective safeguards of identification evidence. Furthermore, the Supreme Court already intruded on this paradigm when it held reliability is the “linchpin” for a judge determining admissibility.[118] The consequence of admission of unreliable eyewitness identification is grave: sixty-nine percent of wrongful conviction cases happen due to eyewitness misidentification, including Darryl Pinkins.[119]
This Note proposes a new admissibility procedure with reliability at the center. Under this proposed framework, trial courts—as gatekeepers—would consider both system and estimator variables in determining the reliability of eyewitness identification evidence before the identification is admitted. Because Daubert’s heightened evidentiary standard prioritizes reliability, it should serve as a model for Indiana courts in evaluating the admissibility of eyewitness identification evidence, aiming to reduce the number of mistaken identifications resulting in false convictions.
A. Conflation of Due Process and Evidentiary Principles
In the current Manson approach, evidentiary principles are conflated with due process concerns; evidence of reliability should not stop at governmental agents.[120] Indiana’s Manson framework requires a judge to determine whether an “impermissibly suggestive” procedure used by law enforcement violates due process by being too unreliable.[121] Yet this focus on police-orchestrated procedures overlooks the fact that all suggestive procedures, regardless of the source, can harm the defendant from unreliable eyewitness testimony. The Manson and Perry Courts acknowledged that reliability is crucial yet limited the consideration of admissibility to only police-orchestrated system variables, allowing potentially unreliable identifications to be presented to juries.[122]
The conflation of evidentiary principles with due process is highlighted by the Perry Court: “The Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.”[123] In criminal evidentiary matters, however, the State traditionally bears the initial burden of establishing the admissibility of its proffered evidence.[124] Therefore, the burden-of-proof structure should be flipped, which would require the State—as the party controlling the procedure—to prove proper identification procedures and reliable evidence. Lastly, a constitutional due process analysis that considers suggestiveness procedures should only be a backstop, not the threshold for admissibility examination because it encompasses only system variables.
The proposed framework does not call for expanding due process protection to eyewitness identifications made under any suggestive circumstances, as rejected by the majority in Perry.[125] Distinguishing between police-orchestrated and non-police-orchestrated suggestive procedures distracts from the problem of unreliable eyewitness identification. Rather, the proposed framework avoids the expansion of due process by focusing on the reliability of eyewitness identification testimony as an evidentiary concern mirroring Daubert.
B. Implementing Rules of Evidence Approach in Indiana
Indiana’s incorporation of Manson’s approach is ineffective in protecting the due process rights of defendants because it does not adequately evaluate reliability, as evidenced by Darryl Pinkins. Therefore, Indiana should look to Daubert and Indiana Rule of Evidence 702 for reassurance to break from Manson. This proposed framework encompasses both system and estimator variables and applies to all eyewitness identification evidence, not just evidence resulting from suggestive circumstances orchestrated by the police. Indiana’s Rule of Evidence 702 provides:
(a) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
(b) Expert scientific testimony is admissible only if the court is satisfied that the expert testimony rests upon reliable scientific principles.[126]
The first prong of Indiana Rule of Evidence 702 requires the expert to “help the trier of fact understand the evidence or to determine a fact in issue.”[127] Because eyewitness identification evidence is highly probative yet potentially riddled with distortion, a judge must examine both system and estimator variables to determine reliability. Eyewitness identification is almost always conclusive to “the trier of fact,” therefore, the identification evidence must be reliable so jurors may accurately draw conclusions from it.
Additionally, the second prong of Indiana Rule of Evidence 702 requires “reliable scientific principles.”[128] As Lawson recognized, science is probabilistic, and so reliability factors used in admissibility review should be adaptable and research-grounded. Although a judge cannot determine whether a witness is right or wrong, a judge sits in a better position than jurors to determine the reliability of identification; empirical research establishes that jurors have trouble accessing factors that distort memory. The Supreme Court agreed when it held “that the jury [should] not hear eyewitness testimony unless that evidence has aspects of reliability.”[129]
The Indiana Supreme Court, while noting that Daubert is not binding on issues arising under the Indiana Rules of Evidence, highlighted that the concerns underlying Daubert were the same as explicitly laid out in rule 702(b).[130] Consequently, Indiana recognized the Daubert factors as helpful, and declared that “there is no specific ‘test’ or ‘set of prongs’ which must be considered in order to satisfy Indiana Rule 702(b).”[131] Similarly, Indiana should recognize the factors outlined in Henderson as helpful but not binding in a “totality of circumstances” analysis. Therefore, eyewitness identification admissibility can reflect modern science which is inapposite to Manson’s enshrining of the Biggers factors. This proposed framework argues that Indiana should consider both system and estimator variables as part of the analysis for reliability.
There is no additional judicial restraint in adopting a modified Daubert approach to the admissibility of eyewitness identification because Indiana courts routinely use Daubert’s factors as a framework for the admissibility of expert testimony. Additionally, this proposed approach should not spike the number of pretrial conferences regarding the reliability of eyewitness identification. Rather, it shifts the burden to the state to establish the reliability of the proffered identification evidence.
Under this proposed approach, the trial judge would evaluate the reliability of eyewitness identification evidence (system and estimator variables) as a factor in its admissibility. The proposed framework would depart from the Manson due process test in several ways. First, it would not be based on due process, but on an evidentiary reliability rationale. Second, this proposed framework applies more broadly to all eyewitness identification evidence, not just evidence resulting from suggestive circumstances. Thus, the reliability evaluation will encompass all indicia of unreliability, not just police involvement, which is tangential when considering the “totality of circumstances.”
1. Support in Indiana: Public Defenders Proposed Rule—Although Indiana has no eyewitness identification reform policy, Indiana public defenders have recognized the grave consequences of misidentifications through a proposed amendment to the Indiana Rules of Evidence.[132]
In 2016, the IPDC proposed a new court rule, Indiana Rule of Evidence 618, to the Indiana Supreme Court Committee on Rules of Practice and Procedure.[133] The proposed rule required police officers to conduct a lineup similar to the pristine conditions and is based on other states’ reform, including New Jersey. Indiana’s public defenders primarily proposed Rule 618 to ensure law enforcement follows best practices when conducting a lineup, but also because eyewitness identification can be very difficult to overturn; courts do not always agree that the conviction resulted from the misidentification.[134] Prosecutors and other opponents believed public defenders were attempting to stop eyewitness identification evidence altogether, stating the Rule was “horribly written” and “impossible to comply with.”[135] Ultimately, Indiana prosecutors succeeded in their opposition to proposed Rule 618.[136]
The IPDC should have looked toward Indiana Rule of Evidence 702, rather than Rule 618, because, as the Indiana Supreme Court emphasized, “the adoption of Rule 702 reflected an intent to liberalize, rather than to constrict, the admission of reliable scientific evidence.”[137] The adoption of Rule 702 for eyewitness identification would “liberalize” the admission of reliable identification evidence, rather than “keep eyewitness testimony from being used.”[138] As shown by Darryl Pinkins, wrongful convictions pose too great of a risk for Indiana to sit by and not work to create an eyewitness identification admissibility framework that encompasses modern science.
C. Weighing Estimator Variables
Under the Daubert standard for expert scientific evidence, unreliability, and complexity are factors that warrant a reliability screening of all expert scientific evidence. Applying these principles to eyewitness identifications would aid trial courts in determining their admissibility by placing reliability at the center. This change steers Indiana courts to address reliability broadly by examining both system and estimator variables.
A confidence measure is likely to reflect the accuracy of identification because a witness exposed to estimator variables is likely to report a lower confidence rating. To balance the potential for an overly confident witness, a judge should also look to the estimator variables outlined in Henderson: stress, weapon focus, duration, distance and lighting, witness characteristics, characteristics of the perpetrator, memory decay, race bias, private actors, and speed of identification.[139] If a judge determines that many estimator variables are present, yet the witness exhibits a high initial confidence rating, the presence of estimator variables should weigh toward unreliability. It is then unclear if the witness’s memory was distorted by suggestive police procedures, or if the witness is otherwise misremembering the events.
D. What is the Proper Procedure?
To combat potential suggestiveness for system variables, police departments should implement the five pristine conditions recommended by cognitive scientists: (1) one suspect per lineup; (2) the suspect should not stand out; (3) unbiased instructions; (4) double-blind administration; and (5) confidence judgment at the time of identification.[140] Furthermore, evidence of departure from these conditions colors the conduct suggestive, and therefore the evidence is less reliable and potentially inadmissible.
For example, police should only test a witness’s memory once by using double-blind administration and unbiased instructions. When a true double-blind procedure is not feasible, police departments should implement the “envelope method.”[141] This “blinding” technique relies on a single-blind administrator, who knows the suspect’s identity, and places single lineup photographs into different, identical, envelopes, shuffles them, and presents them to the witness. The administrator must avoid looking at the envelopes and pictures while the witness makes an identification to avoid unconscious cues.
Furthermore, the suspect should not stand out. A photo spread[142] may be used to find fillers that have the same or similar undiagnostic characteristics such as skin tone, face shape, and nose shape. This helps ensure a witness is focusing on the suspect’s diagnostic characteristics to best match lineup members with the witness’s memory of the perpetrator.[143]
Next, the witness should report a confidence rating at the time of identification for all lineup members. This confidence judgment—and only this confidence judgment—should be used by the police, prosecutor, judge, and jury. The confidence level must also rise above a predetermined level before the identification is admissible. If the confidence judgment does not surpass the threshold, the identification should be treated as a misidentification, and the witness’s memory must not be probed again. But science cannot determine the threshold confidence marker, rather Indiana rule-makers must decide how much they believe Blackstone’s ratio: “It is better that ten guilty persons escape than one innocent suffer.”[144] While experimental psychologists debate how to collect a confidence rating, researchers agree that simply collecting a confidence rating percentage is more important than how it is done.
Any departure from these conditions should color the identification “impermissibly suggestive.”[145] Under this modified Daubert approach, once a pretrial motion is filed, the State bears the burden to prove the eyewitness identification evidence is reliable. Using a modified Daubert framework and incorporating system and estimator variables for the admissibility of eyewitness identification evidence places at the center. Innocent defendants are best protected from wrongful convictions when reliable evidence is presented to the jury.
Conclusion
Eyewitness identification is a common and compelling form of evidence. Yet misidentification is also widely recognized as a leading cause of wrongful convictions. Although memory is malleable and prone to error, eyewitness identification is crucial in many cases.
Because eyewitness identification evidence is distinctive in its combination of unreliability, influence on the jury, and resistance to the traditional protections of the adversarial system, it should be scrutinized more closely focusing on reliability. An identification need not result from impermissibly suggestive police-orchestrated procedures to be considered unreliable. Rather, Indiana must break from Manson, and apply a framework modeled after Indiana Rule of Evidence 702, with system and estimator variables as part of that standard. Under this approach, the State bears the initial burden of proving the proffered identification is reliable. Reliability may be established by showing that police conducted a “pristine” lineup, few estimator variables were present at the time of witnessing, and the witness expressed high confidence during the first, early, identification.
The harm done to innocent defendants like Darryl Pinkins reinforces that eyewitness identifications are not infallible. Indiana must better protect innocent defendants.
[1] Taylor Telford, The Third Life of Darryl Pinkins, Ind. Daily Student, http://specials.idsnews.com/darryl-pinkins/ [https://perma.cc/RQN8-9W24] (last visited Feb. 3, 2023).
[2] Id.
[3] Id.
[4] Id.
[5] Darryl Pinkins, The Nat’l Register of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4874 [https://perma.cc/Z3XE-UBLM] (last visited Feb. 3, 2023).
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Brynn Blair, Seeing Is Believing: Fighting Eyewitness Misidentification in Kansas, 27 Kan. J.L. & Pub. Policy 167, 168 (2018).
[15] Id.
[16] See Laura Mickes et al., Distilling the Confidence-Accuracy Message: A Comment on Wixted and Wells (2017), 18 Psych. Sci. Pub. Int. 6, 8 (2017).
[17] John Wixted & Gary Wells, The Relationship Between Eyewitness Confidence and Identification Accuracy: A New Synthesis, 18 Psych. Sci. Pub. Int. 10, 11 (2017).
[18] Elizabeth F. Loftus & Rachel L. Greenspan, If I’m Certain, Is It True? Accuracy and Confidence in Eyewitness Memory, 18 Psych. Sci. Pub. Int. 1, 2 (2017).
[19] Wixted & Wells, supra note 17, at 13.
[20] See Cara Laney & Elizabeth Loftus, Eyewitness Testimony and Memory Biases, NOBA, https://nobaproject.com/modules/eyewitness-testimony-and-memory-biases [https://perma.cc/8WB2-5FQ7] (last visited Nov. 26, 2022).
[21] See Loftus & Greenspan, supra note 18, at 2.
[22] Id.
[23] A leading question is “one that, either by its form or content, suggests to the witness what answer is desired or leads him to the desired answer.” Elizabeth F. Loftus & John C. Palmer, Reconstruction of Automobile Destruction: An Example of the Interaction between Language and Memory, 13 J. Verbal Learning & Verbal Behav. 585 (1974).
[24] Laney & Loftus, supra note 20.
[25] Id.
[26] Wixted & Wells, supra note 17, at 17.
[27] State v. Henderson, 27 A.3d 872, 896 (N.J. 2011).
[28] Id.
[29] John T. Wixted et al., Test a Witness’s Memory of a Suspect Only Once, 22 Psych. Sci. Pub. Int. 4 (2021).
[30] See Manson v. Brathwaite, 432 U.S. 98 (1977). (“A procedure is unnecessarily suggestive if a positive identification is likely to result from factors other than the witness’s own recollection of the crime.” Satcher v. Pruett, 126 F.3d 561, 566 (4th Cir. 1997)).
[31] See Darryl Pinkins, supra note 5.
[32] Henderson, 27 A.3d at 904.
[33] Id. at 904–10.
[34] Wixted & Wells, supra note 17, at 52.
[35] Id. at 53.
[36] See Darryl Pinkins, supra note 5.
[37] Wixted & Wells, supra note 17, at 14.
[38] John T. Wixted & Laura Mickes, Eyewitness Memory is Reliable, but the Criminal Justice System is Not, 30 Memory 67, 69 (2022).
[39] Metacognition is the awareness and understanding of one’s own thought process; it helps assess the strength of memory and includes the capacity to show certainty, precision in response, and willingness or hesitation to answer. Metacognition, Merriam Webster, https://www.merriam-webster.com/dictionary/metacognition [https://perma.cc/5P3A-VH2X] (last visited Oct. 20, 2022).
[40] See Wixted et al., supra note 29, at 12.
[41] Id.
[42] Id.
[43] Id.
[44] Wixted & Wells, supra note 17, at 53.
[45] Darryl Pinkins, supra note 5.
[46] See Richardson v. State, 388 N.E.2d 488 (1979).
[47] Id.
[48] Id. at 112.
[49] See id.
[50] 409 U.S. 188, 199 (1972).
[51] Id.
[52] See id.
[53] See Young v. State, 374 P.3d 395, 427 (Alaska 2016); State v. Lawson, 291 P.3d 673, 685 (Or. 2012); State v. Henderson, 27 A.3d 872, 879 (N.J. 2011); State v. Kaneaiakala, 450 P.3d 761, 777 (Haw. 2019).
[54] See Manson v. Brathwaite, 432 U.S. 98 (1977).
[55] See id.
[56] Id.
[57] See Perry v. New Hampshire, 565 U.S. 228 (2012).
[58] See id. at 241.
[59] Id. at 248.
[60] Id. at 244.
[61] Id. at 245.
[62] See Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
[63] Sonia Sotomayor, Oyez, https://www.oyez.org/justices/sonia_sotomayor [https://perma.cc/MH5R-EYHZ] (last visited Feb. 3, 2023). Most Supreme Court justices do not share Sotomayor’s experience with eyewitness testimony, which makes her particularly qualified to speak on the issue.
[64] Perry, 565 U.S. at 252 (Sotomayor, J., dissenting).
[65] See Young v. State, 374 P.3d 395, 427 (Alaska 2016); State v. Lawson, 291 P.3d 673, 685 (Or. 2012); State v. Henderson, 27 A.3d 872, 879 (N.J. 2011); State v. Kaneaiakala, 450 P.3d 761, 777 (Haw. 2019).
[66] Henderson, 27 A.3d at 879.
[67] Id. at 888.
[68] Id. at 919.
[69] Id.
[70] Lawson, 291 P.3d at 685.
[71] Id. at 689.
[72] Id. at 695.
[73] Or. Rev. Stat. § 40.315 (2023).
[74] Id. § 40.405.
[75] Id. § 40.155.
[76] Id. § 40.160.
[77] See Manson v. Brathwaite, 432 U.S. 98, 115 (1977).
[78] See State v. Lawson, 291 P.3d 673, 685 (Or. 2012).
[79] Id.
[80] Id.
[81] Marilyn Odendahl, Prosecutors Balk at Curbing Eyewitness Identifications, Ind. Lawyer (Nov. 1, 2016), https://www.theindianalawyer.com/articles/41895-prosecutors-balk-at-curbing-eyewitness-identifications [https://perma.cc/Q9X4-8NTQ].
[82] See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
[83] See Manson v. Brathwaite, 432 U.S. 252 (1977) (Sotomayor, J., dissenting).
[84] See id.; Daubert, 509 U.S. 579.
[85] See Lawson, 291 P.3d at 685; Daubert, 509 U.S. at 579.
[86] Daubert, 509 U.S. 579; Fed. R. Evid. 702.
[87] Daubert, 509 U.S. at 586. See also Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923).
[88] Daubert, 509 U.S. at 589.
[89] Id. at 591–95.
[90] Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).
[91] See Daubert, 509 U.S. at 589.
[92] “Junk science” is defined as “untested or unproven theories [that are] presented as scientific fact.” The Authentic History of ‘Junk Science,’ Merriam Webster https://www.merriam-webster.com/words-at-play/junk-science-word-history [https://perma.cc/5BQB-24P2] (last visited Feb. 3, 2023).
[93] Suedabeh Walker, Drawing on Daubert: Bringing Reliability to the Forefront in the Admissibility of Eyewitness Identification Testimony, 62 Emory L.J. 1205, 1226 (2013).
[94] Daubert, 509 U.S. 579.
[95] See Telford, supra note 1.
[96] United States v. Wade, 388 U.S. 218, 229 (1967).
[97] How Many Innocent People are Jailed Each Year?, Baldani L. Grp, https://baldanilaw.com [https://perma.cc/PJE4-KS65] (last visited Feb. 1 2023).
[98] Eyewitness Identification Reform, The Innocence Project, https://innocenceproject.org/eyewitness-identification-reform/ [https://perma.cc/H5TN-5BM4] (last visited Sept. 10, 2022).
[99] See Perry v. New Hampshire, 565 U.S. 252 (2012) (Sotomayor, J., dissenting).
[100] Walker, supra note 93, at 1230.
[101] U.S. Const. amend. VI. The Sixth Amendment provides that a person accused of a crime has the right to confront a witness against him or her in a criminal action. Id.
[102] John T. Wixted, Time to Exonerate Eyewitness Memory, 292 Forensic Science Int’l e13, e13 (2018).
[103] 449 U.S. 341, 352 (1981) (Brennan, dissenting).
[104] U.S. Const. amend. VI.
[105] See Perry v. New Hampshire, 565 U.S. 252, 253 (2012) (Sotomayor, J., dissenting).
[106] Walker, supra note 93, at 1228.
[107] State v. Lawson, 291 P.3d 673, 685 (Or. 2012) (quoting State v. Guilbert, 49 A.3d 705, 712 (2012)).
[108] See Walker, supra note 93, at 1232.
[109] Gary L. Wells & Elizabeth A. Olson, Eyewitness Testimony, 54 Ann. Rev. Psychol. 277, 279 (2003).
[110] Guilty Until Proven Innocent, CBS News (Dec. 9, 2017, 6:05 PM),
https://www.cbsnews.com/news/darryl-pinkins-roosevelt-glenn-convicted-in-1989-rape-guilty-until-proven-innocent/ [https://perma.cc/7E3P-LUGC]. Prosecutor Carter took office shortly after Darryl was wrongfully convicted and vehemently fought every appeal. Id.
[111] See United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967); Stovall v. Denno, 388 U.S. 293 (1967), abrogated by United States v. Johnson, 457 U.S. 537 (1982).
[112] Walker, supra note 93, at 1231.
[113] Watkins v. Sowders, 449 U.S. 341, 353 (1981) (Brennan, J., dissenting).
[114] Id.
[115] Wixted & Wells, supra note 17, at 10.
[116] Wixted & Mickes, supra note 38, at 69.
[117] Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
[118] Manson v. Brathwaite, 432 U.S. 98, 113 (1977).
[119] Eyewitness Identification Reform, supra note 98.
[120] See State v. Lawson, 291 P.3d 673, 693 (Or. 2012).
[121] See Manson, 432 U.S. at 113.
[122] See id.; Perry v. New Hampshire, 565 U.S. 228, 252 (2012).
[123] Perry, 565 U.S. at 252.
[124] See Lawson, 291 P.3d at 693.
[125] See Perry, 565 U.S. at 252.
[126] Ind. R. Evid. 702.
[127] Id.
[128] Id.
[129] Manson v. Brathwaite, 432 U.S. 98, 113 (1977).
[130] Indiana v. Steward, 652 N.E.2d 490 (Ind. 1995).
[131] McGrew v. State, 682 N.E.2d 1289, 1292 (Ind. 1997).
[132] See Indiana, The Innocence Project, https://innocenceproject.org/policy/indiana/ [https://perma.cc/H5TN-5BM4] (last visited Sept. 10, 2022); Odendahl, supra note 81.
[133] Odendahl, supra note 81.
[134] Id.
[135] Id.
[136] Id.
[137] Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 460 (Ind. 2001).
[138] Odendahl, supra note 81.
[139] State v. Henderson, 27 A.3d 872, 879 (N.J. 2011).
[140] Wixted & Wells, supra note 17, at 18.
[141] Henderson, 27 A.3d at 919.
[142] A photo spread is “a selection of normally small photographs of faces given to a witness for the purpose of identifying a perpetrator.” Laney & Loftus, supra note 20.
[143] Wixted & Wells, supra note 17, at 19.
[144] Garlick v. State, 79 Ala. 265, 266 (1885).
[145] Manson v. Brathwaite, 432 U.S. 98, 113 (1977).
Indiana Law Review 