Good Faith Convictions of the Innocent Are Totally Different!

As was expected, the Supreme Court declined to create a heightened standard for judges to use in evaluating the admissibility of eyewitness testimony, despite the overwhelming evidence that it is much less reliable than commonly assumed. The opinion, written by Ginsburg, argued that judges only need to conduct an inquiry into whether an eyewitness ID is reliable if there is actual police misconduct. I have a piece at the Prospect arguing that this doesn’t actually make any sense:

The intent of the police might be relevant to whether officers should be held liable in the case of a wrongful conviction. But if a lineup is so suggestive as to be unreliable, the intent of the police is beside the point. The majority’s decision to limit the judicial exclusion of eyewitness testimony to cases where there has been police misconduct has the virtue of establishing a clear rule. But this rule is not logically related to its asserted purpose of screening out excessively unreliable evidence. To an innocent person sitting in jail because of erroneous eyewitness identification, whether he was actually framed is not the crucial issue. Unreliable evidence doesn’t magically become more reliable because the police officers who produced the identification acted in good faith.

Sotomayor is right — the standard should be whether a lineup or photo array is so suggestive as to be unreliable, and whether an ID resulting from overly suggestive procedures is the result of active rigging or just the good-faith application of bad procedures is in this context neither here nor there. Alas, her dissent was solo.

Meanwhile, Clarence Thomas wishes to emphasize that the due process clause does not actually require any standard of fair police procedures in obtaining eyewitness IDs at all and the Court was wrong to have so decided previously. And, yet, it’s not even his worst opinion this week….