Abstract
Mistaken eyewitness identification is among the most common factors in wrongful conviction cases. Indeed, hundreds of innocent defendants have been convicted for a crime they did not commit, their fate sealed by an eyewitness who convincingly, but mistakenly, testified, “That’s the one!”
Scientific researchers have documented the fallibility of eyewitness identification for decades. Their collective work has produced recommendations for eyewitness identification reform, focusing on procedural problems most likely to result in mistaken identification. The law in this area, however, has not kept pace with the science. Rather than representing a cohesive series of safeguards against inaccurate eyewitness identifications, federal law remains an inadequate patchwork of Constitutional principles and evidentiary rules. As a result, well- intentioned eyewitnesses continue to make mistakes, police departments continue to use procedures that may taint an identification, and courts fail to serve the gatekeeping role necessary to improve the accuracy of identifications or moderate confidence in them.
This Article critically examines the law governing eyewitness testimony and argues that the solution is a new Federal Rule of Evidence modeled after Utah Rule of Evidence 617. Utah’s rule provides a comprehensive framework based on longstanding science. It is designed to provide police with the procedures necessary to collect accurate eyewitness identifications during investigations, empower courts to exclude problematic identifications before trial, and offer jurors scientifically grounded information to help them better weigh eyewitness testimony. This multi-faceted rule increases the probability that the criminal system will function as it should: identifying the guilty while protecting the innocent.
Recommended Citation
Louisa M. Heiny,
Identifying the Guilty, Protecting the Innocent: Amending the Federal Rules of Evidence to Address Admissibility of Eyewitness Identification,
58
U. Mich. J. L. Reform
367
(2025).
Available at:
https://repository.law.umich.edu/mjlr/vol58/iss2/4