After a short hiatus, it is again time to talk about forensic science. But this time less on the science and more on some practical motion/trial strategy. For those of us who have had examples of suggestive identification (a recent local example exists), only to have a judge tell us it is an issue for the jury, the process is frustrating. Luckily forensic science can help! For years courts have simply relied on the good judgment of juries to determine if someone is telling the truth or not. But the problem of misidentification is that the witness believes they are telling the truth, but has made a mistake. So what do we do?
The forensic science exits to support a remedy from judges. A summary of the science is provided in State v. Henderson, a New Jersey Supreme Court opinion that went to great lengths (appointing a special master and all) to flush out the science in this area. Also a byproduct of DNA exonerations is that we now can isolate causes of wrongful convictions. And misidentification is the clear leading cause of wrongful convictions. Justice Sotomayor has a strong dissent in Perry v. New Hampshire that should give us some comfort that courts may soon turn in the right direction.
But what are the remedies that are available? Again, Henderson is instructive. We should still start with suppression and focus on the problem with relying on juries - the body of science that shows people are not as good as identifying people as they believe they are - who are left to determine someone is telling the truth when that person doesn't understand their flawed thinking. But we should also be looking for experts in the field to testify. Those experts can guide the court on suppression as well as testifying at trial if needed. And jury instructions are essential. Such instructions should probably be given at the time the identification is introduced AND in the final jury instructions packet. While the cases we read seem to close the door on getting a remedy for a suggestive procedure, it is time that courts catch up with the science.