The CSI Effect: Playing in a Jury Room Near You?

Harvard Law and Policy Review January 19, 2012

Social science continues to tell us that eyewitness testimony is flawed and is responsible for a lot of innocent people getting convicted.  In light of this increasing body of evidence, criminal defense attorneys have argued that absent expert testimony or procedural safeguards, such flawed eyewitness testimony should not be considered by a jury.  This issue came to a head in October 2011 when the United States Supreme Court granted cert in Perry v. New Hampshire.  I wrote about the issue in this journal then, and I write now to report on the Supreme Court’s January 11, 2012 decision.

According to current law, eyewitness identification is the subject of a judicial hearing only when the state arranged the identification.  That is, if the witness identified the victim in a police lineup or photo array, the Court could exclude the identification on Constitutional grounds if the identification procedure was too suggestive.  The plaintiff in Perry v. New Hampshire asks, given what we know a…