In Young v. Conway (2d Cir. 10/16/2012), in affirming the granting of a writ of habeas corpus and the reversal of a New York conviction, the United States Court of Appeals for the Second Circuit addressed the reliability of eyewitness identification when it ruled Tuesday that defendant Rudolph Young’s constitutional rights were violated by the admission of in court identification testimony after evidence regarding a lineup identification had been suppressed as the product of an unlawful arrest. The unanimous decision cited with approval scientific research that it was presented about witness memory.

The complainant witness in Young and her husband were at home when their house was broken into by a robber whose head and face were largely covered. The witness was unable to provide more than a general description of the perpetrator and was unable to assist a police sketch artist because the perpetrator's face had been covered.  A month later, she was shown a photo array containing Young's photograph and did not identify anyone. However, the following day, when the complainant was shown a live lineup that again included Young—the only person to appear in both the photographic and live lineup—she identified him as the perpetrator.

In ruling that the New York courts had misapplied controlling Supreme Court law when they ruled that the prosecution had met its burden of establishing an independent basis for this testimony, the  Second Circuit addressed a number of problems with the identification. Among the factors impacting the reliability of identification testimony discussed in the opinion are (1) the witness’s limited opportunity to view the assailant; (2) the impact of disguise, the challenge of identifying a person of another race; (3) the measures of description accuracy, weapons focus, the length of time that passed between the crime and the identification; (4) the relationship, if any between witness confidence and accuracy; and (5) the problem of unconscious transference and multiple viewings of the same suspect. This decision should be read and cited by both counsel and courts considering issues relating to identification evidence.

Disclosure: I represented Mr. Young along with John Blume. Also, there was a wonderful amicus brief from the The Innocence Project, who were represented by attorneys at Paul Weiss, which was relied upon by the Court.