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Abstract

When eyewitnesses identify defendants as perpetrators during criminal trials, juries almost always return a guilty verdict. Unfortunately, researchers consistently find that eyewitness identification is inherently inaccurate and unreliable. The Supreme Court of the United States acknowledged the broad scope of the problem as early as 1967, when it referenced Edwin M. Borchard's famous study of wrongful convictions, stating, "the vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification."' Since Borchard's 1932 study, there has been no remedy for the problem of wrongful conviction based on mistaken identification. In Samuel Gross's study of exonerations in the United States from 1989 to 2003, sixtyfour percent of the cases involved at least one eyewitness misidentification. Because of its unreliability, eyewitness testimony is the primary cause of wrongful convictions. Juries rarely, if ever, believe an eyewitness could be mistaken about identification. However, deoxyribonucleic acid ("DNA") evidence has overturned an alarmingly high rate of convictions based on the testimony of eyewitnesses. Overall, seventyfive to eighty-five percent of convictions overturned by DNA testing involved mistaken eyewitness identification. Part II of this Comment examines the scope of the problem of mistaken eyewitness identification and outlines the factors in the pretrial and trial phase that lead to wrongful convictions. Part III examines how proscriptive measures can reduce the number of wrongful convictions based on mistaken identification. Part IV argues that the innocence movement, which focuses largely on the death penalty debate, should shift its focus away from abolition of the death penalty. Instead, the innocence movement's primary objective should be to prevent the occurrence of wrongful convictions by focusing on proscriptive measures during the pretrial and trial phases of litigation. Shifting focus to prevention is more preferable than a continued focus on the death penalty's abolition for three reasons. First, pre-conviction improvements will be easier to achieve than abolition because they are far less political. Second, a pre-conviction focus will affect greater change because proscriptive measures will prevent wrongful convictions, whereas abolition affects only the small percentage of cases where the defendant receives the death penalty. Third, the innocence movement's focus should be to prevent wrongful conviction because preventative measures are easier to implement in a justice system heavily weighted against post-conviction relief.

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