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While testifying on the stand during a recent misdemeanor trial in Maryland, a Hispanic eyewitness pointed to the defense table and identified a young African American as the perpetrator. The eyewitness, however, got it wrong. The young man he identified as the perpetrator was actually a law student who was representing the defendant-also African American-as part of a law school clinic. More remarkable was the fact that the eyewitness had identified the defendant as the perpetrator in a pretrial statement, making note that he had known the individual in question for at least three years. The result? An immediate dismissal of the charges. (E-mail from Professor Binny Miller, Director, Criminal Justice Clinic, Washington College of Law, American University, (Oct. 2, 2007) (on file with author).)
In the recent Duke University lacrosse scandal, three white team members were indicted on rape charges based largely on photographic lineups. The African- American accuser admitted that all the team members looked the same. (See Michael Salfino, Limits to the Lineup: Why We're Twice as Likely to Misidentify a Face of Another Race, 40 PSYCH. Today 6, 30 (Nov./Dec. 2006).)
Unfortunately, erroneous eyewitness identifications, including cross-racial misidentifications, are rarely this obvious.
Eyewitness identifications are often reliable and persuasive evidence. Yet 30 years of social science research and the contributions of the Innocence Project, a national organization dedicated to exonerating wrongfully convicted persons through DNA testing, have shown that erroneous eyewitness identifications are the single greatest cause of wrongful convictions nationwide. Approximately three-quarters of the more than 200 wrongful convictions in the United States overturned through DNA testing resulted from eyewitness misidentifications. Ofthat 77 percent, where race is known, 48 percent of the cases involved cross-racial eyewitness identifications. (See Innocence Project Fact Sheets, Eyewitness Misidentification and Facts on Post-Conviction DNA Exonerations, at http://www.innocenceproject.org (last visited Jan. 22, 2008).)
Traditional trial protections of suppression hearings, voir dire, cross-examination of witnesses, closing arguments, and jury instructions on the credibility of witnesses and evaluation of eyewitness testimony do not adequately address the special recognition impairments often present in cross-racial eyewitness identifications. Abshire and Bornstein state that "[m]uch of the reason for juries' erroneous convictions based on faulty eyewitness identifications is that jurors are not very sensitive to the factors that determine eyewitness accuracy."...