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The Champion

June 2011 , Page 30 

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Conviction After Misidentification: Are Jury Instructions A Solution?

By Joseph F Savage Jr.; James P. Devendorf

Eyewitness testimony can convince a jury of a defendant’s guilt even in the absence of other incriminating evidence. But numerous exonerations have demonstrated that eyewitnesses can be mistaken and that mistaken identifications can lead to wrongful convictions.1 Defense counsel typically tries to attack eyewitness identification evidence through suppression motions, cross-examination and, sometimes, by introducing expert testimony on the limitations of eyewitness identification. Perhaps, however, the most productive thing the defense can do is obtain cautionary instructions about identification evidence that will alert jurors to potential problems and provide a guide to evaluating the evidence.2 Viable instructions are evolving in some jurisdictions that are starting to recognize the developed body of scientific evidence about eyewitness identification.

Eyewitness Memory Is Prone to Error

Courts have long given lip service to the problem of eyewitness misidentification. The Supreme Co

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