EYEWITNESS IDENTIFICATION AND THE PROBLEMATICS OF BLACKSTONIAN REFORM OF THE CRIMINAL LAW.
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| Title: | EYEWITNESS IDENTIFICATION AND THE PROBLEMATICS OF BLACKSTONIAN REFORM OF THE CRIMINAL LAW. |
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| Authors: | ROSENTHAL, LAWRENCE |
| Source: | Journal of Criminal Law & Criminology. Spring2020, Vol. 110 Issue 2, p181-243. 63p. |
| Subjects: | Eyewitness identification, Criminal law, Law reform, Actual innocence, Legal evidence |
| Abstract: | A substantial number of wrongful convictions are attributable to inaccurate identifications of perpetrators, stemming from the difficulties that eyewitnesses can experience in accurately perceiving and later recalling faces. Many have argued that courts should employ prophylactic rules to prevent the admission of unreliable identification evidence. Yet, most jurisdictions continue to follow the deferential approach to the admission of eyewitness identification evidence taken by the United States Supreme Court in Manson v. Brathwaite. Commentators have universally condemned this state of affairs. This Article offers a departure from the existing commentary by taking seriously the possibility that courts have good reason for their reluctance to embrace prophylactic rules excluding evidence thought to present unduly high risks of convicting the innocent. The case for reform is rooted in Blackstone's admonition that the law should be wary of admitting evidence of guilt, preferring erroneous acquittals to wrongful convictions. It is difficult, however, to construct a Blackstonian case for the exclusion of evidence thought to be unduly likely to produce wrongful convictions. Given our limited knowledge about the error rates that inhere in most types of evidence, Blackstonian reform has no ascertainable stopping point; excluding evidence that poses what is thought to be an undue risk of wrongful conviction could result in the exclusion of virtually all evidence of guilt. To illustrate the point, this Article considers an issue on which the lower courts have split--the role of corroborative evidence in assessing the admissibility of an eyewitness's identification. Although Blackstonian prophylactic rules reject the consideration of corroborative evidence, the reliability of most evidence cannot be assessed in isolation. Reliability can usually be assessed only in the context of all pertinent evidence. Thus, totality-of-the-circumstances tests, such as the approach reflected in the Supreme Court's decisions on eyewitness identification, are about the best we can do--as prophylactic evidentiary rules designed to reduce rates of wrongful conviction turn out to be deeply problematic. [ABSTRACT FROM AUTHOR] |
| Copyright of Journal of Criminal Law & Criminology is the property of Northwestern University School of Law and its content may not be copied or emailed to multiple sites without the copyright holder's express written permission. Additionally, content may not be used with any artificial intelligence tools or machine learning technologies. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.) | |
| Database: | Psychology and Behavioral Sciences Collection |
| FullText | Links: – Type: pdflink Text: Availability: 0 |
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| Header | DbId: pbh DbLabel: Psychology and Behavioral Sciences Collection An: 142487747 AccessLevel: 6 PubType: Academic Journal PubTypeId: academicJournal PreciseRelevancyScore: 0 |
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| Items | – Name: Title Label: Title Group: Ti Data: EYEWITNESS IDENTIFICATION AND THE PROBLEMATICS OF BLACKSTONIAN REFORM OF THE CRIMINAL LAW. – Name: Author Label: Authors Group: Au Data: <searchLink fieldCode="AR" term="%22ROSENTHAL%2C+LAWRENCE%22">ROSENTHAL, LAWRENCE</searchLink> – Name: TitleSource Label: Source Group: Src Data: <searchLink fieldCode="JN" term="%22Journal+of+Criminal+Law+%26+Criminology%22">Journal of Criminal Law & Criminology</searchLink>. Spring2020, Vol. 110 Issue 2, p181-243. 63p. – Name: Subject Label: Subjects Group: Su Data: <searchLink fieldCode="DE" term="%22Eyewitness+identification%22">Eyewitness identification</searchLink><br /><searchLink fieldCode="DE" term="%22Criminal+law%22">Criminal law</searchLink><br /><searchLink fieldCode="DE" term="%22Law+reform%22">Law reform</searchLink><br /><searchLink fieldCode="DE" term="%22Actual+innocence%22">Actual innocence</searchLink><br /><searchLink fieldCode="DE" term="%22Legal+evidence%22">Legal evidence</searchLink> – Name: Abstract Label: Abstract Group: Ab Data: A substantial number of wrongful convictions are attributable to inaccurate identifications of perpetrators, stemming from the difficulties that eyewitnesses can experience in accurately perceiving and later recalling faces. Many have argued that courts should employ prophylactic rules to prevent the admission of unreliable identification evidence. Yet, most jurisdictions continue to follow the deferential approach to the admission of eyewitness identification evidence taken by the United States Supreme Court in Manson v. Brathwaite. Commentators have universally condemned this state of affairs. This Article offers a departure from the existing commentary by taking seriously the possibility that courts have good reason for their reluctance to embrace prophylactic rules excluding evidence thought to present unduly high risks of convicting the innocent. The case for reform is rooted in Blackstone's admonition that the law should be wary of admitting evidence of guilt, preferring erroneous acquittals to wrongful convictions. It is difficult, however, to construct a Blackstonian case for the exclusion of evidence thought to be unduly likely to produce wrongful convictions. Given our limited knowledge about the error rates that inhere in most types of evidence, Blackstonian reform has no ascertainable stopping point; excluding evidence that poses what is thought to be an undue risk of wrongful conviction could result in the exclusion of virtually all evidence of guilt. To illustrate the point, this Article considers an issue on which the lower courts have split--the role of corroborative evidence in assessing the admissibility of an eyewitness's identification. Although Blackstonian prophylactic rules reject the consideration of corroborative evidence, the reliability of most evidence cannot be assessed in isolation. Reliability can usually be assessed only in the context of all pertinent evidence. Thus, totality-of-the-circumstances tests, such as the approach reflected in the Supreme Court's decisions on eyewitness identification, are about the best we can do--as prophylactic evidentiary rules designed to reduce rates of wrongful conviction turn out to be deeply problematic. [ABSTRACT FROM AUTHOR] – Name: AbstractSuppliedCopyright Label: Group: Ab Data: <i>Copyright of Journal of Criminal Law & Criminology is the property of Northwestern University School of Law and its content may not be copied or emailed to multiple sites without the copyright holder's express written permission. Additionally, content may not be used with any artificial intelligence tools or machine learning technologies. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract.</i> (Copyright applies to all Abstracts.) |
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| RecordInfo | BibRecord: BibEntity: Languages: – Code: eng Text: English PhysicalDescription: Pagination: PageCount: 63 StartPage: 181 Subjects: – SubjectFull: Eyewitness identification Type: general – SubjectFull: Criminal law Type: general – SubjectFull: Law reform Type: general – SubjectFull: Actual innocence Type: general – SubjectFull: Legal evidence Type: general Titles: – TitleFull: EYEWITNESS IDENTIFICATION AND THE PROBLEMATICS OF BLACKSTONIAN REFORM OF THE CRIMINAL LAW. Type: main BibRelationships: HasContributorRelationships: – PersonEntity: Name: NameFull: ROSENTHAL, LAWRENCE IsPartOfRelationships: – BibEntity: Dates: – D: 01 M: 04 Text: Spring2020 Type: published Y: 2020 Identifiers: – Type: issn-print Value: 00914169 Numbering: – Type: volume Value: 110 – Type: issue Value: 2 Titles: – TitleFull: Journal of Criminal Law & Criminology Type: main |
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