New Scholarship Spotlight: Daubert Gatekeeping for Eyewitness Identifications

Professor Sandra Guerra Thompson has posted the above-titled article, fresh off the presses, on SSRN.  Full article here.  Abstract:

A key function of trial courts is their gatekeeping responsibility, by which courts advance the truth-seeking function of the trial process. This article makes the rather unremarkable argument that the Federal Rules of Evidence rest upon a “reliability paradigm” that undergirds almost every rule of evidence. For most rules, the evidentiary foundation required for admitting evidence ensures its reliability. Courts effectively conduct gatekeeping merely by applying the rules such as the hearsay exceptions in FRE 803 and 804. For other rules, the reliability paradigm has informed the interpretation of the rules as was the case for FRE 702 in Daubert v. Merrell Dow Pharmaceuticals, Inc. A general thesis of this article is that it is especially appropriate in criminal trials for courts to engage in gatekeeping for evidence shown to be fraught with reliability issues and highly prone to mislead the jury and cause a wrongful criminal conviction.

This article applies the holistic interpretation of the rules of evidence seen in Daubert to eyewitness identification, the leading cause of wrongful convictions. The analysis illustrates the manner in which evidentiary reliability gatekeeping should be applied to eyewitness identifications. Numerous scientific studies and overturned convictions show that traditional trial protections such as the right to counsel and cross-examination do not suffice to prevent wrongful convictions. Jurors do not possess the specialized knowledge necessary to evaluate the reliability of eyewitness identifications properly, nor is it feasible for them to obtain this knowledge during trial. Unfortunately for the wrongly accused, identification testimony has traditionally gotten a free pass under the rules of evidence, and the Supreme Court has recently reaffirmed that due process does not provide meaningful reliability screening (ironically, citing the “protective rules of evidence” as one of the sources of regulation).

The article examines a pair of recent New Jersey cases that attempt to provide more effective screening for eyewitness identification. While the cases do advocate the use of best practices by law enforcement in obtaining eyewitness identifications, the article contends that the rulings impose substantive and procedural limitations that will make the new gatekeeping regime largely ineffective. The immediacy of the erroneous identification challenge demands assertive judicial oversight. Only by fully embracing the gatekeeping role provided under rules of evidence will trial courts actually abate the leading cause of wrongful convictions in the absence of legislative reform. Daubert teaches that judicial initiative can start the process of rule revision that leads the advisory committee to make appropriate amendments. The last section of the article makes some preliminary suggestions for amendments to the FRE (and state counterparts) that would go a long way in making explicit the gatekeeping process necessary to prevent wrongful convictions caused by misidentification.

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