PRELIMINARY STATEMENT

Five decades of scientific research have demonstrated that eyewitness memory is malleable. It degrades over time. It can change when witnesses learn information about an event from the police or other witnesses. And it is altered each time a witness is asked to identify a suspect after viewing a showup or lineup.

Researchers have found that simply testing an eyewitness’s memory by showing them a suspect contaminates it. Even if proper procedures are used, a showup or lineup creates a memory of that suspect’s face and an association of that face to the crime. If witnesses identified that suspect the first time, they are likely to repeat that identification in future identification procedures, regardless of whether that identification is correct. In fact, real-world cases confirm that once a witness has mistakenly identified a suspect, they are likely to identify that same person again even if they are shown the real culprit. And even if the witness did not identify the suspect the first time, there is a grave risk that they will identify the suspect in a later identification procedure based on their memory of the first identification procedure (rather than of the event). Accordingly, psychologists have concluded that only the first identification procedure conducted with the same eyewitness and same suspect can provide reliable evidence—and that failing to identify a suspect the first time around is evidence of innocence.

What happened here flouts this scientific consensus. When presented with a lineup, the only witness to identify Jason Wright at trial failed to identify him—even though she had just seen him escorted by police and in handcuffs. This lineup was the closest thing in this case to an uncontaminated, fair identification procedure. It provided the best evidence as to whether the witness could identify Mr. Wright based on an independent memory of the event: she could not. If she had an independent memory of Mr. Wright from the incident, the witness would have identified him in the lineup. Yet rather than heeding the evidence of the witness’s first identification, the trial court allowed the witness to identify Jason Wright in a highly suggestive, single-suspect courtroom procedure.

Not only was there no “independent source” for the in-court identification here, but this case also illustrates the broader problem with the independent source doctrine when it comes to identification evidence. Because testing memory contaminates it, there can be no source for the witness’s courtroom memory of the event that is truly independent of the identification procedure(s) that preceded it.

This Court should therefore follow the Supreme Court of New Mexico in abolishing the independent source doctrine in the context of eyewitness identifications obtained through unduly suggestive identification procedures. At the very least, it should hold there can be no independent source for an in-court identification when the eyewitness failed to identify the defendant out of court.

Preliminary Statement

Scientific research spanning five decades has consistently shown that eyewitness memory is not fixed; it can change. Memory naturally fades over time. It can also be influenced when individuals learn details about an event from law enforcement or other witnesses. Furthermore, each instance an individual is asked to identify a suspect in a showup or lineup can alter their memory.

Researchers have found that the very act of testing an eyewitness's memory by presenting a suspect can contaminate it. Even when proper procedures are followed, a showup or lineup can create a memory of the suspect's face and link that face to the crime. If an individual identifies a suspect initially, there is a high likelihood they will repeat that identification in future procedures, regardless of its accuracy. Real-world examples confirm that an individual who has mistakenly identified a suspect often identifies the same person again, even when presented with the actual perpetrator. Moreover, even if an individual did not identify a suspect initially, there is a significant risk they will identify the suspect in a later procedure based on their memory of the first identification procedure, rather than their memory of the actual event. Therefore, psychologists conclude that only the first identification procedure involving the same eyewitness and suspect offers reliable evidence. A failure to identify a suspect during this initial procedure can indicate innocence.

The circumstances of this case contradict this scientific understanding. The only witness to identify Jason Wright at trial failed to identify him in a lineup, despite having recently observed him escorted by police and in handcuffs. This lineup represented the closest available approximation of an uncorrupted, fair identification process. It offered the best assessment of whether the witness could identify Mr. Wright based on a distinct memory of the event; the witness could not. If a distinct memory of Mr. Wright from the incident existed, the witness would have identified him in the lineup. However, instead of relying on the evidence from the witness's initial identification, the trial court permitted the witness to identify Jason Wright in a highly suggestive courtroom procedure involving only one suspect.

Not only was there an absence of an "independent source" for the in-court identification in this case, but these facts also demonstrate a broader issue with the independent source doctrine in the context of identification evidence. Because the act of testing memory contaminates it, a witness's courtroom memory of an event cannot truly be independent of the identification procedure(s) that preceded it.

This Court should therefore align with the Supreme Court of New Mexico by eliminating the independent source doctrine as it applies to eyewitness identifications obtained through overly suggestive identification procedures. At a minimum, a ruling should establish that an in-court identification cannot have an independent source when the eyewitness previously failed to identify the defendant outside of court.

Preliminary Statement

Decades of scientific study have shown that eyewitness memory is not always accurate. It can weaken over time. Memory can also change when witnesses hear information about an event from law enforcement or other witnesses. Additionally, a witness's memory changes each time a suspect is viewed in a showup or lineup.

Research indicates that simply testing an eyewitness's memory by presenting a suspect can alter it. Even with proper procedures, a showup or lineup can create a memory of that suspect's face and link it to the crime. If a witness initially identified a suspect, they are likely to repeat that identification in future procedures, regardless of its accuracy. Real-world cases confirm that a witness who has mistakenly identified a suspect often identifies the same person again, even when shown the actual perpetrator. Even if a witness did not identify a suspect initially, there is a significant risk they will identify the suspect in a later procedure based on their memory of the first identification procedure rather than the actual event. Therefore, psychologists conclude that only the first identification procedure involving the same eyewitness and suspect provides reliable evidence, and a failure to identify a suspect initially suggests innocence.

The events in this case contradict this scientific understanding. During a lineup, the only witness who later identified Jason Wright at trial initially failed to identify him, even after seeing him escorted by police in handcuffs. This lineup was the closest instance of an unbiased, fair identification procedure in this case. It offered the best indication of whether the witness could identify Mr. Wright based on an independent memory of the event, which she could not. Had she possessed an independent memory of Mr. Wright from the incident, the witness would have identified him in the lineup. Instead of considering the evidence from the witness's first identification, the trial court permitted the witness to identify Jason Wright in a highly suggestive, single-suspect courtroom procedure.

Not only was there a lack of "independent source" for the in-court identification in this case, but this situation also highlights a broader issue with the independent source doctrine concerning identification evidence. Because memory testing can alter memory, a witness's courtroom memory of an event cannot truly be independent of the identification procedures that occurred before it.

This Court should adopt the stance of the Supreme Court of New Mexico by eliminating the independent source doctrine when eyewitness identifications result from overly suggestive procedures. At a minimum, the Court should rule that an in-court identification cannot have an independent source if the eyewitness previously failed to identify the defendant outside of court.

How Eyewitness Memory Works

For 50 years, scientific studies have shown that what eyewitnesses remember can easily change. Memories fade over time. They can also change when witnesses hear details about an event from police or other witnesses. Each time a witness is asked to identify a suspect, their memory can also be altered.

Simply testing an eyewitness's memory by showing them a suspect can contaminate it. Even with correct procedures, a showup or lineup creates a memory of that suspect's face and links that face to the crime. If witnesses identified a suspect the first time, they are likely to identify the same person again in future procedures, whether or not the first identification was correct. Real cases confirm that once a witness mistakenly identifies someone, they often identify that same person again, even if later shown the real perpetrator. If a witness did not identify the suspect the first time, there is a serious risk they will identify the suspect in a later procedure based on their memory of the first procedure, not the actual event. Psychologists conclude that only the first identification procedure involving the same eyewitness and suspect provides reliable evidence. Failing to identify a suspect the first time suggests innocence.

Problems with Witness Identification in This Case

The events in this case ignored what science tells us. The only witness who identified Jason Wright at trial failed to identify him in a lineup, even though the witness had just seen him with police and in handcuffs. This lineup was the closest thing in this case to a fair and uncontaminated identification process. It offered the best evidence of whether the witness could identify Mr. Wright based on a memory independent of other influences. The witness could not. If there was an independent memory of Mr. Wright from the incident, the witness would have identified him in the lineup. Instead of considering the evidence from the witness's first identification, the trial court allowed the witness to identify Jason Wright in a courtroom procedure that was highly suggestive and involved only one suspect.

The "Independent Source" Problem

Not only was there no "independent source" for the courtroom identification in this case, but this situation also highlights a larger problem with the "independent source doctrine" when it comes to identification evidence. Because testing memory contaminates it, a witness's courtroom memory of an event cannot truly be independent of the identification procedures that happened before.

Call for Change

Therefore, this Court should follow the Supreme Court of New Mexico and stop using the independent source doctrine for eyewitness identifications obtained through procedures that are overly suggestive. At the very least, the Court should rule that there cannot be an independent source for a courtroom identification if the eyewitness failed to identify the defendant outside of court.

Summary

For 50 years, scientists have learned that a person's memory of what they saw can change. It can get worse over time. It can also change if people hear new information about what happened from police or other people. Every time a witness tries to pick out a suspect from a group, their memory can also change.

Scientists have found that just asking a witness to try and remember a suspect can mess up their memory. Even if everything is done correctly, showing a witness a suspect creates a memory of that face. It also links that face to the crime. If a witness picked someone out the first time, they will likely pick that person again, even if it was a mistake. Cases in the real world show that once a witness mistakenly picks someone, they will pick that same person again, even if the real guilty person is shown to them later. If a witness did not pick a suspect the first time, they might pick that suspect later because they remember the first time they saw them, not because they remember the crime. Because of this, experts say that only the first time a witness tries to pick someone out is reliable. If a witness does not pick someone out the first time, it suggests that person is innocent.

What happened in this case goes against what scientists know. The only witness who said Jason Wright was the person at the trial did not pick him out from a group of people. This happened even though she had just seen him with police and in handcuffs. This lineup was the fairest way to see if the witness could remember Mr. Wright on her own. It was the best proof of whether she could pick him out based on what she saw during the event. She could not. If she truly remembered Mr. Wright from the event, she would have picked him out in the lineup. But instead of listening to what the witness showed the first time, the court let the witness pick out Jason Wright in court. This was done in a way that made it very easy to guess who to pick.

Not only was there no clear, separate reason for the witness to pick out Mr. Wright in court, but this case also shows a bigger problem. Since testing memory can mess it up, a witness's memory in court cannot truly be separate from the times they tried to pick someone out before.

The court should stop using the rule that says there can be a separate reason for a witness's memory when they picked someone out in a way that was too easy to guess. At the very least, the court should say there is no separate reason for a witness to pick someone out in court if they could not pick the person out before.