Important Decision on Misidentifications


Important Decision on Misidentifications

by Karen Newirth

Senior Fellow, Strategic Litigation Unit


As we

reported yesterday

, Judge Anita B. Brody of the Eastern District of Pennsylvania reversed the 21 year old capital murder conviction of James Dennis. As in

nearly 75 percent of the DNA exonerations

, Mr. Dennis’ conviction was based almost entirely on what a federal court now recognizes as unreliable eyewitness identification testimony.


As we have previously reported, courts throughout the country have begun to rely on the robust body of scientific research that explains why eyewitnesses are so often wrong, how law enforcement can improve identification procedures, and what courts can do to ensure that only reliable identification evidence goes to juries, especially since juries tend to over believe eyewitnesses.


Judge Brody’s opinion joins this body of jurisprudence while adding something new and important to the conversation. Criticizing the police investigation of the murder for which Mr. Dennis was ultimately convicted, Judge Brody noted that many of the eyewitnesses made equivocal or inconsistent identifications, and/or failed to identify Mr. Dennis, the police suspect, altogether. Quoting the brief of the

Pennsylvania Innocence Project

and the

Innocence Network

, Judge Brody cited scientific research that shows that “non-identifications of a suspect provide important evidence of innocence.” This is the first time that any court has recognized this important scientific conclusion. We hope that other courts will follow suit and treat non-identifications of the suspect with the same weight that they give to suspect identifications.


This is not simply a research conclusion from the laboratory. Of the 227 DNA exonerations involving eyewitness misidentification, we are aware of 46 cases (or 20 percent) that involved at least one non-identifying witness. There are likely many more, as non-identifications may not always be recorded or – as in Mr. Dennis’s case – revealed to the defense (despite the fact that the Supreme Court has long held that non-identifications constitute


material that must be turned over).


This research, together with the case of James Dennis and the 227 DNA exonerees, offers critical guidance to police as well as courts. Law enforcement, like courts, should take seriously non-identifications of suspects produced by fair identification procedures and consider whether their suspect was not the perpetrator after all.

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