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Copyright (c) 2001 The University of Texas School of Law
American Journal of Criminal Law

ARTICLE: They All Look Alike: The Inaccuracy of Cross-Racial Identifications

Spring, 2001

28 Am. J. Crim. L. 207


John P. Rutledge*


I. Introduction

Have sight and hearing truth in them? Are they not, as the poets are always telling us, inaccurate witnesses? 1
Identifications (IDs) by witnesses "are among the most important forms of evidence presented in criminal trials." 2 Many cases are based entirely upon uncorroborated eyewitness IDs, 3 and yet, "the vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification." 4

As Justice Frankfurter noted in 1927: "The identification of strangers is proverbially untrustworthy [and] the hazards of such testimony are established by a formidable number of instances in the records of English and American trials." 5 Similarly, the Ninth Circuit characterized eyewitness IDs as "at best, highly dubious, given the extensive empirical evidence that eyewitness identifications are not reliable." 6 The Second Circuit has observed that "centuries of experience in the administration of criminal justice have shown that convictions based solely on testimony that identifies a defendant previously unknown to the witness is highly suspect [and] the least reliable, especially where unsupported by corroborating evidence." 7

Perception and memory are not purely deductive, but have substantial inductive components ... . Witnesses focus on gross or salient characteristics of any sensory experience, and fill in the details, not according to the observed facts of the experience, but according to some previously internalized pattern they associate with the perceived gross characteristics. In addition, the construction of memory is greatly influenced by post-experience suggestions. Suggestions compatible with the ...
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