•  
  •  
 

Abstract

Research indicates eyewitness identifications are incorrect approximately one-third of the time in criminal investigations. For years, this phenomenon has significantly contributed to wrongful convictions all over the country, including in Washington State. But jurors, attorneys, and police remain unaware of the nature and extent of the problem and continue to give undue weight to eyewitness evidence. Experts have estimated that approximately 5,000–10,000 felony convictions in the United States each year are wrongful, and research suggests that approximately 75% of wrongful convictions involve eyewitness misidentification. The phenomenon of eyewitness misidentification is also amplified and most troublesome in the context of cross-racial identification—when a witness identifies someone of another race. Experimental research suggests that an eyewitness trying to identify a stranger is over 50% more likely to make a misidentification when the stranger and eyewitness are of different races. Consistent with this finding, approximately one-third of wrongful convictions uncovered by DNA analysis nationwide have involved whites misidentifying blacks. For these reasons, this Article focuses on cross-racial misidentification, and discusses the nature and extent of the problem and potential tools for addressing it; however, this Article’s reasoning applies in large part to eyewitness misidentification in general. The Washington State Supreme Court had two recent opportunities to address the issue of cross-racial misidentification in State v. Cheatam and State v. Allen. These cases establish that Washington State trial courts have broad discretion to permit expert testimony and jury instruction on cross-racial misidentification when relevant. In light of this precedent, this Article proposes that Washington State trial courts begin exercising their broad discretion regularly to admit such testimony and instruction whenever relevant as an initial step toward preventing wrongful convictions and improving our criminal justice system. Going forward, additional education and reform efforts will be needed to solve this ongoing problem.