Who Could it be Now? Challenging the Reliability of First Time In-Court Identifications After State v. Henderson and State v. Lawson

Kaplan, Aliza B., Puracal, Janis C. | January 1, 2015

Despite the recent advances in assessing the reliability of eyewitness identifications, the focus to date has largely been identifications made pretrial. Little has been written about identifications made for the first time in the courtroom. While in-court identifications have an extraordinarily powerful effect on juries, all such identifications are potentially vulnerable to post-event memory distortion and decay. Absent an identification procedure that effectively tests the witness’s memory, it is impossible to know if the witness’s identification of the defendant is a product of his or her original memory or a product of the extraordinarily suggestive circumstances created by the in-court identification procedure. In this article, the authors discuss the science related to memory and perception and how the courts have historically addressed claims of suggestiveness in the context of eyewitness identifications and, specifically, how they have handled first time in-court identifications. They analyze the issue of first time, in-court identifications under the new legal frameworks established by the Oregon Supreme Court in State v. Lawson (2012) and the New Jersey Supreme Court in State v. Henderson (2011), which both recognize 30 years of science proving that memories are malleable and easily influenced by outside forces. They argue that, in all states, first time, in-court identifications should be inadmissible, forcing the state to conduct a reliable out-of-court identification, whether pretrial or with leave during trial.