By Sandra Guerra Thompson

A key function of trial courts is their gatekeeping responsibility, by which they advance the truth-seeking function of the trial process. This Article makes the rather unremarkable argument that a “reliability paradigm” undergirds almost every rule in the Federal Rules of Evidence (FRE). For most rules, the evidentiary foundation required for admitting evidence ensures the reliability of the evidence. Courts effectively conduct gatekeeping merely by applying the rules such as the hearsay exceptions in FRE 803 and 804. For other rules, the reliability paradigm has informed the interpretation of the rules, as was the case for FRE 702 in Daubert v. Merrell Dow Pharmaceuticals, Inc. A general thesis of this Article is that it is especially appropriate for courts in criminal trials to engage in gatekeeping for evidence fraught with reliability issues because it is highly prone to misleading the jury and causing a wrongful criminal conviction.

This Article applies the holistic interpretation of the rules of evidence seen in Daubert to eyewitness identification, the leading cause of wrongful convictions. This analysis illustrates the manner in which courts should apply evidentiary reliability gatekeeping to eyewitness identifications. Numerous scientific studies and overturned convictions show that traditional trial protections such as the right to counsel and cross-examination do not suffice to prevent wrongful convictions. Jurors do not possess the specialized knowledge necessary to evaluate the reliability of eyewitness identifications properly, nor is it feasible for them to obtain this knowledge during trial. Unfortunately for the wrongly accused, identification testimony has traditionally received a free pass under the rules of evidence, and the Supreme Court has recently reaffirmed that due process does not provide meaningful reliability screening (ironically, citing the “protective rules of evidence” as one of the sources of regulation).

This Article examines a pair of recent New Jersey cases that attempt to provide more effective screening for eyewitness identification. While the cases do advocate the use of best practices by law enforcement in obtaining eyewitness identifications, the Article contends that the rulings impose substantive and procedural limitations that will make the new gatekeeping regime largely ineffective. The immediacy of the erroneous identification challenge demands assertive judicial oversight. In the absence of legislative reform, trial courts can abate the leading cause of wrongful convictions only by fully embracing the gatekeeping role provided under the rules of evidence. Daubert teaches that judicial initiative can start the rule revision

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Recommended Citation
Sandra Guerra Thompson, Daubert Gatekeeping for Eyewitness Identifications, 65 SMU L. Rev. 593 (2012)