Malik Small was convicted of attempted robbery and second-degree assault after being identified by the victim, who told police his assailant had a tattoo on his neck that included the letter “M.” After viewing a photographic array that included five individuals and Small’s photo showing a neck tattoo including the letter “M,” the victim said Small looked like his assailant, however, he “(didn’t) think it (was) him.” A second array was constructed wherein Small was the only one repeated. This time, each individual in the array had a neck tattoo, although Small’s tattoo was the only one containing the letter “M.” Not surprisingly, the victim identified Small with “100%” certainty. The Small case, published June 24, 2019, presented the Court of Appeals with the perfect opportunity to adopt new standards for testing the reliability of eyewitness identifications, as current methods present serious due process concerns. Instead, the majority squandered the opportunity as plainly recognized by Chief Judge Mary Ellen Barbera in her well-considered concurrence, joined in by Judge Robert N. McDonald and now-retired Judge Sally D. Adkins.
Nearly 50 years ago, the Supreme Court held that when a police identification procedure is unduly suggestive, as it was in Small’s case, the resultant identification will be inadmissible at trial only if the identification itself, as opposed to the procedures used by police, is unreliable. The court held that the Due Process Clause requires courts to assess, under a totality of the circumstances standard, whether suggestive police conduct created a “substantial likelihood of misidentification.” The court suggested five factors for courts to consider in determining the reliability of the identification: the opportunity for the witness to view the criminal, the witness’ degree of attention during the crime, the accuracy of the witness’ prior description of the criminal, the witness’ level of certainty and the time between the crime and the identification. In the intervening years, social science research has demonstrated the fallibility of using these factors to determine reliability. Indeed, as Chief Judge Barbera documents, studies have found no correlation between many of these factors and the reliability of an identification. For example, studies have almost unanimously concluded that there exists no correlation between a witness’ level of certainty and the accuracy of the identification. The majority in Small completely ignores science and insists on rote application of the five factors, and no others.
Fortunately, as urged by the chief judge, the Maryland Rules Committee will take up the issue and hopefully propose rules of procedure for the assessment of eyewitness identification in light of current scientific research. That research was used in New Jersey to develop specific procedures for testing the reliability of an identification. Those procedures require an examination of both “system variables,” which are those factors within the state’s control, and “estimator variables,” which are factors related to the incident, the assailant and the witness. For instance, system variables include looking at precisely how the police went about conducting the lineup or photographic array; i.e., were there multiple viewings of the same suspect; was anything done to make the suspect stand out? Estimator variables require an examination of factors such as the level of stress the witness was under at the time of the crime; whether the identification was cross-racial; whether the witness was influenced by seeing the suspect in newspapers or on television prior to the identification. None of these critical points are accounted for under the old five-factor test.
Given that over 70% of convictions overturned by DNA evidence nationwide involved mistaken identifications, there is no time to waste. If Maryland rules and instructions are indeed changed in light of current science, Small will obviously not benefit. However, he will have served as a catalyst for much-needed change.
Editorial Advisory Board member Arthur F. Fergenson did not take part in this editorial.
EDITORIAL ADVISORY BOARD MEMBERS
James B. Astrachan, Chair
James K. Archibald
Martha Ertman (on sabbatical)
Arthur F. Fergenson
Angela W. Russell
Debra G. Schubert
The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.