January 15, 2013

CT Supreme Court Acknowledges Fallibility of Eyewitness IDs

Last fall, the Connecticut Supreme Court, sitting en banc (i.e., with all justices participating), unanimously approved a new evidentiary rule allowing defendants to present expert testimony on the fallibility of eyewitness identifications.  In doing so, the Court overruled two decisions precluding the introduction of such testimony.  It had reasoned in the earlier cases that expert testimony was unnecessary because the (1) average juror knows about the factors affecting the reliability of eyewitness identifications and (2) expert testimony on this issue is disfavored because it invades the jury's province to determine what weight to give eyewitness testimony. 

The Court based the new rule on the fact that courts across the country have accepted that:
  1. there is at best a weak correlation between a witness’ confidence in his or her identification and its accuracy;
  2. the reliability of an identification can be diminished by a witness’ focus on a weapon;
  3. high stress at the time of observation may render a witness less able to retain an accurate perception and memory of the observed events;
  4. cross-racial identifications are considerably less accurate than same-race identifications;
  5. a person’s memory diminishes rapidly over a period of hours rather than days or weeks;
  6. identifications are likely to be less reliable in the absence of a double-blind, sequential identification procedure;
  7. witnesses are prone to develop unwarranted confidence in their identifications if they are privy to post-event or post-identification information about the event or their identification; and
  8. the accuracy of an eyewitness identification may be undermined by unconscious transference, which occurs when a person seen in one context is confused with a person seen in another.
The case announcing the new rule is Connecticut v. Guilbert, --A3d--, 2012 WL 3629569 (NO. 17948).  The cases it overrules are State v. Kemp, 199 Conn 473, 477 (1986) and State v. McClendon, 248 Conn. 572, 586 (1999).
at