In 2006, this Court observed that eyewitnessWow. Stunning commentary on eyewitness testimony. It's mostly wrong. Put a group of people in a room. Have someone they don't know run in and grab the speaker's purse, then run out. Then bring three people with similar looks in the room and ask them which one did it. The group will always pick one of them. When they find out it was none of them, they're shocked. How could this be? They saw it with their own eyes! You know what the song said about lying eyes . . .
“[m]isidentification is widely recognized as the single greatest
cause of wrongful convictions in this country.” State v.
Delgado, 188 N.J. 48, 60 (2006) (citations omitted); see also
Romero, supra, 191 N.J. at 73-74 (“Some have pronounced that
mistaken identifications ‘present what is conceivably the
greatest single threat to the achievement of our ideal that no
innocent man shall be punished.’” (citation omitted)). That
same year, the International Association of Chiefs of Police
published training guidelines in which it concluded that “[o]f
all investigative procedures employed by police in criminal
cases, probably none is less reliable than the eyewitness
identification. Erroneous identifications create more injustice
and cause more suffering to innocent persons than perhaps any
other aspect of police work.” Int’l Ass’n of Chiefs of Police,
Training Key No. 600, Eyewitness Identification 5 (2006).
Substantial evidence in the record supports those
statements. Nationwide, “more than seventy-five percent of
convictions overturned due to DNA evidence involved eyewitness
misidentification.” Romero, supra, 191 N.J. at 74 (citing
Innocence Project report); Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 8-9, 279 (2011)5
(finding same in 190 of first 250 DNA exoneration cases). In
half of the cases, eyewitness testimony was not corroborated by
confessions, forensic science, or informants. See The Innocence
Project, Understand the Causes: Eyewitness Misidentification,
Misidentification.php (last visited August 16, 2011). Thirtysix
percent of the defendants convicted were misidentified by
more than one eyewitness. Garrett, supra, at 50. As we
recognized four years ago, “[i]t has been estimated that
approximately 7,500 of every 1.5 million annual convictions for
serious offenses may be based on misidentifications.” Romero,
supra, 191 N.J. at 74 (citing Brian L. Cutler & Steven D.
Penrod, Mistaken Identification: The Eyewitness, Psychology, and
the Law 7 (1995)).
One of the great themes of injustice today is the fact that many people behind bars are innocent. Some of them are on death row. It's a wonderful story line for writers. Does your innocent character fight to prove he should be released? Do they get out and take revenge? Or have they given up? Does someone need to inspire them to fight to clear their name? Or is your character the eyewitness who realizes they might have been wrong? There's so much inspiration you can get thinking about the unreliable eyewitness.
If you're writing about a crime, just remember: your eyewitnesses are crap. Your evidence may be "just" circumstantial - and that's the best kind.