Reducing the incidence of wrongful convictions based on eyewitness mistakes poses a difficult challenge to the criminal justice system. There is near-unanimity among courts and commentators that eyewitness mistakes account for more erroneous convictions than any other type of proof. It is therefore incumbent on every key participant in the criminal justice system - judge, prosecutor, police, and defense counsel - to use every available tool to protect an accused from being mistakenly identified by an eyewitness. For the judge, protecting the accused requires a willingness to give the jury special instructions on eyewitness identification and a willingness to allow the use of experts to inform the jury of the issues concerning the reliability of eyewitnesses. For the prosecutor, protecting the accused requires a willingness to undertake an objective and impartial investigation of the reliability of his or her eyewitnesses, and to refuse to present such witnesses when the prosecutor entertains a reasonable doubt about the accuracy of identifications. For the police, protecting persons from mistaken identifications requires the employment of new techniques that are capable of preventing the kinds of suggestiveness that taint the witness's in-court identification and create the potential for an unjust conviction of an innocent defendant. And for the defense attorney, protecting the client means more than simply providing constitutionally competent representation but, in addition, being willing to aggressively challenge the prosecutor's evidence to minimize the chance that the client will be wrongly convicted.
Bennett L. Gershman, The Eyewitness Conundrum: How Courts, Police and Attorneys Can Reduce Mistakes by Eyewitnesses, N.Y. St. B.J., Jan. 2009, at 81, available at http://digitalcommons.pace.edu/lawfaculty/860/.