INTRODUCTION

Mistaken eyewitness identification is a leading cause of wrongful convictions. Nationally, approximately 69% of DNA exonerations – at least 258 people – followed convictions based in whole or in part on mistaken eyewitness identification.1 These wrongful convictions give rise to a double injustice: The State deprives an innocent person of his liberty while allowing a guilty person to go free, potentially committing additional crimes. Moreover, wrongful convictions undermine public trust in the criminal justice system. In Washington State, individuals wrongfully convicted based on erroneous identifications, and who were later exonerated based on post- conviction DNA evidence, served a combined 42 years in prison. Because DNA exonerations are rare – there is no dispositive DNA evidence available in most cases and resources for the post-conviction review of cases are limited – the true cost of wrongful conviction based on mistaken eyewitness testimony is certainly much greater.

Washington State has adopted the test established by the Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), and Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), to determine the admissibility of eyewitness identifications obtained through unnecessarily suggestive procedures. State v. Vaughn, 101 Wn.2d 604, 607, 682 P.2d 878 (1984). Manson sets forth a two- part inquiry. First, was the challenged identification obtained through an unnecessarily suggestive police procedure? Even if it was, the identification may nevertheless be admitted, if the trial court finds that it is reliable under the totality of the circumstances, focusing on particular criteria set forth in Manson and Biggers: the opportunity of the witness to view the perpetrator at the time of the crime; the witness’s degree of attention; the accuracy of the witness’s prior description of the perpetrator; the level of certainty demonstrated by the witness at the time of the identification; and the length of time between the crime and the identification. 432 U.S. at 114 (citing Biggers, 409 U.S. at 199-200).

The Manson test depends on the premise that an eyewitness identification that is the product of highly suggestive law enforcement procedures may nonetheless be reliable if the enumerated indicia of reliability are present. But in the forty-plus years since Manson, a robust body of scientific research, now routinely relied on by courts, has undermined that premise.

In light of this science, a number of state high courts have ceased using the Manson analysis for determining the admissibility of eyewitness identifications. In its place, they have adopted new evidentiary rules which comport with the accepted scientific consensus regarding how eyewitness memory and perception work. Amici submit that this Court should do the same. Specifically, the Court should hold that when a defendant moves to suppress an eyewitness identification, the trial court should evaluate the reliability of the identification under the totality of all of the circumstances – that is, both the circumstances of the identification procedure (“system variables,” as described below) and of the witness’s encounter with the perpetrator (“estimator variables,” also described below).

Introduction

Mistakes in identifying suspects are a leading cause of wrongful convictions. About 69% of DNA exonerations nationwide, involving at least 258 individuals, have been linked to mistaken eyewitness identification. These errors create a dual injustice: an innocent person loses their freedom, and the actual perpetrator remains at large, potentially committing more crimes. Such wrongful convictions also erode public trust in the legal system. In Washington State, individuals wrongly convicted due to incorrect identifications, later cleared by DNA evidence, collectively spent 42 years in prison. Since DNA evidence is often unavailable and resources for post-conviction reviews are limited, the full extent of wrongful convictions based on mistaken eyewitness testimony is likely much higher.

Washington State currently uses the legal standard from the Supreme Court cases Manson v. Brathwaite and Neil v. Biggers to decide if eyewitness identifications from suggestive procedures can be used as evidence. This standard, adopted in State v. Vaughn, involves a two-part assessment. First, a court must determine if the identification was obtained using an unnecessarily suggestive police method. Even if it was, the identification might still be allowed if the court finds it reliable, considering several factors: the witness's chance to see the perpetrator, their level of attention, how accurately they described the perpetrator before, how sure they were during the identification, and the time between the crime and the identification.

The Manson test operates on the belief that even highly suggestive law enforcement procedures can produce reliable eyewitness identifications if specific indicators of reliability are present. However, over the past four decades, extensive scientific research has challenged this foundational idea. Courts now frequently rely on this body of science, which has weakened the original premise of the Manson test.

Given this scientific evidence, several state supreme courts have stopped using the Manson analysis for deciding whether eyewitness identifications are admissible. Instead, these courts have adopted new rules for evidence that align with the scientific understanding of how eyewitness memory and perception function. There is an argument that this Court should follow a similar path. Specifically, it is suggested that when a defendant seeks to prevent an eyewitness identification from being used as evidence, the trial court should assess the identification's reliability based on all relevant circumstances. This includes both the conditions of the identification procedure (known as "system variables") and the witness's interaction with the perpetrator (known as "estimator variables").

Introduction

Mistakes in eyewitness identification are a major reason for wrongful convictions. Across the United States, about 69% of DNA exonerations, which account for at least 258 individuals, involved convictions based partly or entirely on faulty eyewitness identification. These wrongful convictions create a double problem: an innocent person loses their freedom, and the guilty person remains free, possibly committing more crimes. Such errors also reduce public confidence in the justice system. In Washington State, individuals wrongly convicted due to incorrect identifications, and later cleared by DNA evidence, spent a total of 42 years in prison. Since DNA exonerations are uncommon—most cases lack definitive DNA evidence, and resources for reviewing past cases are limited—the full extent of wrongful convictions caused by mistaken eyewitness testimony is likely much higher.

Washington State currently uses a two-part test, established by the Supreme Court in Manson v. Brathwaite and Neil v. Biggers, to decide if eyewitness identifications obtained through potentially unfair procedures can be used in court. The first part of this test asks if the identification was obtained using an unnecessarily suggestive police method. Even if it was, the identification might still be allowed if the court finds it reliable, considering all the circumstances. This involves looking at specific factors: how well the witness could see the person who committed the crime, how much attention the witness paid, how accurate the witness's earlier description of the person was, how sure the witness was at the time of identification, and how much time passed between the crime and the identification.

The Manson test operates on the idea that an eyewitness identification, even if it results from highly suggestive police actions, can still be dependable if certain signs of reliability are present. However, over the more than forty years since Manson, a large amount of scientific research, which courts now regularly consult, has challenged this idea.

Given this scientific evidence, several state supreme courts have stopped using the Manson analysis for deciding whether eyewitness identifications are admissible. Instead, these courts have adopted new rules for evidence that align with the widely accepted scientific understanding of how eyewitness memory and perception function. It is suggested that this Court should also adopt a similar approach. Specifically, when a defendant seeks to prevent an eyewitness identification from being used in court, the trial court should assess the reliability of the identification by considering all circumstances. This includes both the details of the identification procedure (known as "system variables") and the details of the witness's encounter with the perpetrator (known as "estimator variables").

Summary

Mistakes in eyewitness identification are a major reason for wrongful convictions. Across the nation, about 69% of people cleared by DNA evidence, at least 258 individuals, were initially convicted based partly or entirely on incorrect eyewitness identification. These wrongful convictions cause two problems: an innocent person loses their freedom, and the actual guilty person remains free, possibly committing more crimes. Additionally, such errors reduce public trust in the justice system. In Washington State, people wrongly convicted due to mistaken identifications and later cleared by DNA evidence spent a combined 42 years in prison. Since DNA evidence is often unavailable and resources for reviewing old cases are limited, the actual number of wrongful convictions from mistaken eyewitness testimony is likely much higher.

Washington State uses a specific test, set by the Supreme Court in Manson v. Brathwaite and Neil v. Biggers, to decide if eyewitness identifications from overly suggestive procedures can be used in court. This test was adopted in State v. Vaughn. The Manson test involves two steps. First, the court considers whether the identification was obtained through police procedures that were unnecessarily suggestive. Even if the procedures were suggestive, the identification might still be allowed if the court finds it reliable, considering all the circumstances. The court looks at several factors: how well the witness could see the person who committed the crime, how much attention the witness was paying, how accurately the witness described the person before, how sure the witness was during the identification, and how much time passed between the crime and the identification.

The Manson test operates on the idea that an eyewitness identification, even if obtained through very suggestive police methods, can still be reliable if certain indicators of reliability are present. However, over the past forty years since Manson, extensive scientific research, now commonly accepted by courts, has shown this idea to be questionable.

Because of this scientific evidence, several state supreme courts have stopped using the Manson analysis to decide if eyewitness identifications can be admitted. Instead, they have created new rules for evidence that align with current scientific understanding of how eyewitness memory and perception work. Supporters believe this Court should do the same. Specifically, when a defendant tries to prevent an eyewitness identification from being used, the trial court should assess the reliability of the identification by considering all circumstances. This includes both the details of the identification procedure (called "system variables") and the witness's interaction with the person who committed the crime (called "estimator variables").

Summary

Mistakes in identifying people by witnesses are a main reason why innocent people go to jail. About 69% of people who were later found innocent by DNA evidence were wrongly identified by a witness. When an innocent person is jailed, the real criminal is still free and can commit more crimes. This also makes people lose trust in the justice system. In Washington State, people wrongly jailed because of bad identifications spent a total of 42 years in prison. Many cases do not have DNA evidence, so the problem of wrong identifications is likely much bigger.

Courts use a special test to decide if a witness's identification can be used in court, especially if the police did something that might have made the witness's choice unfair. This test asks two things. First, did the police use a method that unfairly suggested who the witness should pick? Even if they did, the identification might still be allowed if the court believes it is trustworthy. To decide this, the court looks at how well the witness saw the person during the crime, how much attention they paid, how good their first description was, how sure they were when they identified the person, and how much time passed between the crime and the identification.

This test assumes that even if the police used unfair methods, the witness's identification can still be trusted. But over the last 40 years, science has shown this idea is not always true. Many courts now use science to understand how people remember and see things.

Because of this new science, some states have stopped using the old test for witness identifications. They now use new rules that match what scientists know about memory and how people see things. People are asking the court to do the same. They want the court to look at all the facts when deciding if a witness's identification is trustworthy. This includes how the police got the identification and what happened when the witness saw the person.