Mistaken Eyewitness Identification and Wrongful Conviction in the United States

AuthorAnnemarie Shea
PositionBCL (International), University College Cork
Annemarie Shea*
In 1984, when Jennifer Thompson was a twenty-two year old college student in Burlington
North Carolina, a man broke into her home, held a knife to her throat and raped her.1 During
the attack she studied her assailant’s face and body, trying to memorise anything that would
help her identify the man and ensure that he would pay for his crimes. When she went down
to the police station that same day, she picked Ronald Cotton from a photo and later from a
line-up. Police reported that they had never seen a victim so composed, so determined, so
sure.2 Based on Jennifer Thompson’s testimony, Ronald Cotton - who was also twenty-two
years old at the time- was convicted and sentenced to life in prison.3 Cotton appealed and was
retried in 1987.4 During the second trial, Bobby Poole, who was incarcerated in the same
prison as Cotton and had confessed to his cellmate that he was Thompson’s actual assailant,
was brought into the courtroom. When asked to identify him Jennifer Thompson assertively
replied ‘I have never seen him in my life. I have no idea who he is.’5 Cotton was convicted
again. Thompson, haunted by the horrific sexual abuse she had sustained, was nevertheless
able to sleep soundly reassured that the man who had raped her had been sentenced to life in
prison for the second time. Thompson spent the next decade in freedom marrying and having
children while Cotton endured prison. Law Professor Richard Rosen of the University of
North Carolina, troubled that a man had been sentenced to life based almost exclusively on
eyewitness testimony, took on Cotton’s case. DNA evidence that had not been previously
available obtained conclusive results: Ronald Cotton had not raped Jennifer Thompson-
Bobby Poole had. Cotton was released6 after serving more than a decade in prison for a crime
he never committed.
*BCL (International), University College Cork.
1 Phoebe Judge, ‘After Innocence: Exone ration in America’ http://www.thestory.org/stories/2013-06/jennifer-
thompson> accessed 3 March 2 016.
2 Sheena M Lorenza, ‘Factors Affecting the Accuracy of Eyewitness Identification.’ (2003) The Review: A
Journal of Undergraduate Student Research 45-50
http://fisherpub.sjfc.edu/cgi/viewcontent.cgi?article=1013&context=ur > date accessed 3 M arch 2016.
3 In January 1985, Cotton was convicted by a jury of one count of rape and one count of burglary. ‘What
Jennifer Saw’ Frontline http://www.pbs.org/wgbh/pages/frontline/shows/dna/cotton/summary.html> date
accessed 3 March 2016.
4 The Innocence Project ‘Ronald Cotton: Ten years imprisonmen t’ http://www.innocenceproject.org/cases-
false-imprisonment/ronald-cotton> dat e accessed 3 March 2016.
5 Jennifer Thompson , ‘I was certain, but I was wrong’ The New York Times Opinion (New York, 18 June 2001)
http://www.nytimes.com/2000/06/18/opinion/i-was-certain-but-i-was-wrong.html> date accessed 3 Ma rch
6 The Innocenc e Project (n 4). On June 30th 1995 Cotton was officially cleared of all charges and released from
prison. In July 1995 the Governor of North Carolina officially pardoned Cotton.
The Cotton case illustrates an increasingly recognised phenomenon - that mistaken
eyewitness identification is a leading cause of wrongful convictions in the United States.7
Research has found that eyewitness errors are disturbingly common and yet difficult to
recognise when they occur.8 While many in the criminal justice system acknowledge
eyewitness fallibility, few understand the extent or the causes of the problem.9 To understand
the impact of eyewitness error it is first necessary to consider the scope of the problem of
wrongful convictions. The National Registry of Exonerations,10 maintained as a joint project
between the University of Michigan Law School and the Centre for Wrongful Convictions at
Northwestern University School of Law, lists 1,725 cases since 1989 in which a person was
wrongly convicted but later exonerated by new evidence of innocence.11 For all exonerations
the most common causal factors are: perjury or false accusation (55%); false confession
(13%); false or misleading forensic evidence (23%) and official misconduct (45%). The
National Registry of Exonerations reports that mistaken identifications have been involved in
approximately 35% of exoneration cases, 83% of robbery cases, and 73% of sexual assault
cases. This remarkable rate of involvement of eyewitness errors in wrongful convictions is
unfortunately no surprise.12
While there are numerous causes of wrongful conviction, it is proposed for the purposes of
this paper to exclusively address the contribution of eyewitness errors to miscarriages of
justice in the United States. It is imperative that we determine why mistaken eyewitness
identifications occur and why they are so infrequently detected to prevent the kind of horrific
injustice suffered, not only by Ronald Cotton, but of the remaining 1,724 individuals who
have been wrongfully convicted since 1989.13 Accordingly, the aspiration of this paper is
twofold. First, it is my endeavour to review the major developments in the experimental
literature concerning the way that various factors relate to the accuracy of eyewitness
identification. Second, I shall outline the flaws in the police-initiated identification
procedures and the US Supreme Court’s defective legal standard for the admissibility of the
identifications generated by these procedures. To conclude I will provide a brief analysis of
the consequences of wrongful convictions.
7 Innocence Project Video, ‘Eyewitness Identification Getting it Right’
http://www.innocenceproject.org/causes-wrongful-conviction/eyewitness-misidentification> date ac cessed 3
March 2016.
8 Deborah Davis and Elizabeth F Loftus, ‘The Dangers of Eyewitnesses for the Innocent: Learning from the past
and projecting into the age of social medi a’
http://www.nesl.edu/userfiles/file/lawreview/Vol46/4/LoftusDavis%20-%20Final.pdf> date accesse d 5 March
9 The Justice Project, ‘Eyewit ness Identificat ion: A policy review’
iew.pdf> date accessed 5 Ma rch 2016.
10 The Natio nal Registry of Exonerations https://www.law.umich.edu/special/exoneration/Pages/browse.aspx>
date accessed 5 March 2016. The total number of exonerations is currently 1,745.
11 The National Registry of Exonerations, ‘The First 1,600 Exonerations
https://www.law.umich.edu/special/exoneration/Documents/1600_Exonerations.pdf> date acc essed 5 March
12 Samuel R Gross and Michael Sha ffer, ‘Exonerations in the Un ited States (1989-2012). Report by the National
Registry of Exonerations’
date accessed 5 March 2016.
13 The National Regi stry of Exonerations (n 10).

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