Benjamin Wiener

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Student Comments

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Throughout the late 1960s and early 1970s, the Supreme Court defined the Due Process limitations on the admissibility of eyewitness identifications. The Court ultimately settled on a test in Manson v. Brathwaite. Since 1977, the Court’s test has been roundly criticized in the legal7 and social science8 literature. Despite developments in social science that have augmented our understanding of eyewitness identifications, the Supreme Court has failed to readdress the issue.

This Comment considers whether or not the United States Supreme Court should use social science evidence as a source for reinterpreting the Due Process Clause as expressed through the Manson test. While many alternatives to the Manson test have been proposed in the academic literature, relatively little attention has been paid to the question of why social science findings are legitimate sources for interpretation of the Constitution in the case of eyewitness identifications. The respondent and its amici argued in Perry that it would be inappropriate for the Court to consider this evidence in defining the due process limitation on eyewitness evidence. In light of these arguments, it is necessary, as a threshold matter, to defend the legitimacy of social science research as a source of constitutional interpretation.

I argue that the Supreme Court should consider social science evidence in its interpretation of the Due Process Clause as it relates to eyewitness testimony and revise the Manson test accordingly. In Part I, I outline the Supreme Court’s eyewitness identification case law. In Part II, I discuss the approaches of state supreme courts that have augmented the federal standard. In Part III, I provide a framework for the use of social science data in constitutional interpretation generally, paying particular attention to the work of David L. Faigman. In Part IV, I apply the principles outlined in the prior part to eyewitness identifications, arguing that social science evidence is particularly relevant to this area of the law. Finally, I consider and reject some objections to the Court’s use of scientific evidence to shape the test for excluding eyewitness evidence.