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3 Texas A&M Law Review 367 (2015)


This Article explores the viability of upstream criminal justice reforms within the context of an adversary and procedural system of criminal justice, focusing on reforms in eyewitness identification procedures. Mistaken eyewitness identification evidence is often cited as the leading cause of wrongful convictions in the United States. Eyewitness identification reforms have also been the most developed upstream efforts to grow out of the innocence movement. The success and limitation of upstream reform in eyewitness identification shed light on the efficacy of upstream criminal justice system reform more generally, as well as in areas that are less developed, such as the introduction of false confessions or the use of unreliable forensic science.

Part II of the Article describes the upstream trajectory of reform in the area of eyewitness identifications. It demonstrates how DNA exonerations have shed light on the inadequacy of trial procedures to correct or mitigate the damage caused by investigatory missteps that alter eyewitness testimony, and it explains the reforms to law enforcement investigatory practices that have been recommended by social science researchers to prevent mistaken eyewitness identifications. Part III demonstrates the landscape of post-exoneration legal reform, cataloguing the legislation enacted in a growing number of states that requires law enforcement agencies to adopt and adhere to eyewitness identification "best practices." This Part also demonstrates the reluctance of legislatures and courts to fashion robust downstream enforcement mechanisms to incentivize good investigatory practices, such as establishing a per se rule excluding evidence that resulted from impermissibly suggestive eyewitness identification procedures.