From Presentation to Presence: Immersive Virtual Environments and Unfair Prejudice in the Courtroom – Note by Khirin Bunker

From Volume 92, Number 2 (January 2019)



What if you could transport your jury from a courtroom to the scene of a catastrophic event? . . . Imagine how much more empathy you would feel for the victim of a catastrophic collision if you were to experience the tragedy first-hand.[1]


In the courtroom environment, oral presentations are becoming increasingly supplemented and replaced by advancing digital technologies that provide legal practitioners with effective demonstrative capabilities.[2] Improvements in the field of virtual reality (VR) are facilitating the creation of immersive environments in which a user’s senses and perceptions of the physical world can be completely replaced with virtual renderings.[3] As courts, lawyers, and experts continue to grapple with evidentiary questions of admissibility posed by evolving technologies in the field of computer-generated evidence (CGE),[4] issues posed by the introduction of immersive virtual environments (IVEs) into the courtroom have, until recently, remained a largely theoretical discussion.

Though the widespread use of IVEs at trial has not yet occurred, research into the practical applications of these VR technologies in the courtroom is ongoing,[5] with several studies having successfully integrated IVEs into mock scenarios. For example, in 2002, the Courtroom 21 Project (run by William & Mary Law School and the National Center for State Courts) hosted a lab trial in which a witness used an IVE.[6] The issue in the case was whether a patient’s death was the result of the design of a cholesterolremoving stent or a surgeon’s error in implanting it upside down.[7]

During the mock trial, a key defense witness who was present during the surgery donned a VR headset, which recreated the operating room, and then projected to the jury her view of the operation on a large screen as she reenacted her role in the surgery. The demonstration significantly reduced the credibility of the witness when it revealed that she could not possibly have seen the doctor’s hands or wrists.[8]

In another experiment, Swiss researchers successfully used an Oculus Rift headset and Unity 3D software to render an IVE that made it possible for a viewer to assess how close bullets came to severely injuring a victim during a shooting.[9] Using a laser scan of the crime scene, footage taken from an onlooking security camera, and the final position of the projectiles, researchers were able to reconstruct the scene of the shooting to enable viewers to review the bullet trajectories, visibility, speed, and distance.[10]

Similarly, the Bavarian State criminal office, which currently handles the prosecution of Nazi war criminals tied to the Holocaust, applied laser scanning technology to develop a VR model of the Auschwitz concentration camp.[11] The model was recently adapted into an IVE for future use at trial, allowing jurors to examine the camp from almost any point of view.[12]

As research continues and new applications of IVE technology have been investigated, the use of VR technology is becoming increasingly mainstream and costeffective,[13] making it more practical to use an IVE in the courtroom. As such, early adapters in civil practice have announced plans to use IVEs at trial,[14] while litigation support providers are beginning to advertise VR development services.[15] Rising use of laser imaging software and body cameras among law enforcement departments, with the capacity to be converted into an IVE format for use at trial,[16] also has significant potential to facilitate the rapid expansion of these technologies in criminal proceedings.

From the standpoint of a legal practitioner, the potential value in applications of IVE use at trial are numerous. As a form of evidence, IVEs have the potential to redefine the way in which litigators can recreate crime and accident scenes for the jury.[17] Rather than having a jury watch a video rendering or review images after-the-fact, an IVE could allow jury members to witness an event firsthand—from any specific moment, angle, or viewpoint.[18] As a demonstrative technology, an IVE can be easily adapted to depict eyewitness and expert testimony, explain highly technical concepts, or transport users into an interactive environment in any given scenario.[19]

While some commentators have welcomed the onset of IVEs into the courtroom as a natural progression and the next step in technological development of visual media,[20] others have argued that IVEs are fundamentally different from prior forms of evidence and warrant heightened caution due to potential prejudicial effects on juries.[21] This Note supports the latter position and, drawing on psychological research, ultimately argues for revisions to be made in the admission of IVEs as demonstrative evidence.

Part I of this Note defines and distinguishes IVEs from other forms of VR and CGE. Part II compares the treatment of substantive and demonstrative evidence under the Federal Rules of Evidence and discusses the relevant evidentiary rules for the use of an IVE as an illustrative aid. Part III outlines applicable psychological and cognitive research and potential prejudicial effects on juries stemming from the employment of IVEs in a trial setting under the current rules. Part IV examines several cases in which computer-generated animations were subjected to lower evidentiary standards and raises further concerns in applying the current rules to an IVE. Part V explains the need for revisions to the procedures for admitting an IVE as demonstrative evidence and concludes by recommending new procedures which should be implemented prior to the proliferation of IVEs in the courtroom.

I.  Distinguishing Immersive Virtual Environments

The term “virtual reality” is used in many contexts, and it is important to note the distinctions between VR technologies capable of facilitating IVEs, which are the subject of this Note, and other mediums for virtual environment (VE) interaction and display. Computergenerated VEs can be roughly grouped into three broad categories based on the level of user immersion:[22] non-immersive (desktop), semi-immersive, and immersive virtual environments.[23]

Non-immersive systems, which include Fish Tank and Desktop VR, are monitor-based VR systems where users engage with the VE through a basic desktop display using stereoscopic lenses or an inherent autostereoscopic feature.[24] These kinds of displays do not necessitate that the user wear a VR headset or glasses and typically do not surround the user visually.[25] Likewise, semi-immersive systems have similar technologies but use large screen monitors, large screen projector systems, or multiple television projection systems that increase the users field of view, thereby increasing the level of immersion.[26]

Separate from these categories are mixed-reality, or augmented reality (AR), technologies that combine physical and virtual objects and align them with the real-world environment.[27] AR environments create a local virtuality, which is mapped onto the physical environment around the user, rather than completely replacing the surrounding environment with a virtual one.[28]

An IVE, by contrast, “perceptually surrounds the user.”[29] This is accomplished with a combination of three-dimensional computer graphics, high-resolution stereoscopic projections, and motion tracking technologies that continually render virtual scenes to match the movements and viewpoint of the user.[30] Through the use of a head-mounted display (HMD),[31] sensory information from the physical world is replaced with the perception of a computergenerated, three-dimensional world in which the user is free to move and explore.[32] In the context of an IVE, VR can therefore be understood to mean “a computer-generated display that allows or compels the user (or users) to have a feeling of being present in an environment other than the one they are actually in and to interact with that environment.”[33]

The resulting sense of presence felt by the user is described as a function of an individual’s psychology,[34] representing the degree to which that user experiences a conscious presence in the virtual setting.[35] This effect on a user’s state of consciousness has been attributed to the unique vividness and interactivity of an IVE,[36] which distinguishes IVEs from prior forms of CGE.[37] This sense of consciousness created by an IVE also forms the basis for psychological concerns about leading to potential risks of unfair prejudice in using an IVE at trial.[38] However, prior to further discussion of the unique psychological issues raised by IVEs, it is important to understand how an IVE offered for use at trial would be evaluated under the current rules of evidence.

II.  Immersive Virtual Environments and the Federal Rules of Evidence

As previously noted, at trial, an IVE could be applied by courtroom attorneys for presentations to the jury that recreate crime and accident scenes, illustrate highly technical procedures, and demonstrate eyewitness or expert testimony. The most practical method of IVE application in the courtroom would be jurors donning individual HMDs during the course of, or simultaneous with, live testimony.

Though the use of IVEs in the courtroom remains largely unprecedented, the process for addressing the question of an IVE’s use at trial will likely be similar to that used for other forms of visual media.[39] At present, the Federal Rules of Evidence fail to make specific reference to any form of CGE, and therefore do not address the concept of an IVE.[40] Yet, in the absence of legislative revision, it is fair to assume that the admissibility of IVE evidence will be evaluated under existing basic evidentiary rules[41] as well as accompanying general principles which have developed among the courts for determining the admissibility of other forms of CGE.[42]

As a form of visual media, an IVE would need to be classified as either demonstrative—also called illustrative—or substantive evidence.[43] In the realm of CGE, courts have generally labeled 3D renderings as either computer animations (typically treated as demonstrative evidence) or computer simulations (typically treated as substantive evidence).[44] This classification is critical in determining the applicable foundational requirements, which vary due to the differing purposes for which the evidence is introduced.[45]

Substantive evidence is offered by the proponent “to help establish a fact in issue.”[46] Thus, a computer-generated simulation created through the application of scientific principles would be considered to have independent evidentiary value and therefore be evaluated as substantive evidence.[47] If treated similarly, an IVE used to reconstruct the moment of a car accident, created through software that was programmed to analyze and draw conclusions from pre-existing data (such as calculations, eyewitness testimony, and so forth) would be considered substantive evidence.[48]

One of the primary hurdles facing an IVE entered as substantive evidence at trial would be in laying the foundation for its admission.[49] Because of these foundational challenges, the primary method for introducing an IVE as substantive evidence at trial would likely be in a form accompanying expert testimony.[50] This introduction could be done in several ways: as “part of the basis for expert opinion testimony, an illustrative aid to expert testimony, or a stand-alone exhibit introduced through the testimony of an expert involved in creating the IVE.”[51] As substantive evidence, a testifying expert could draw conclusions about the accident based on the IVE simulation, and it might be admitted as an exhibit that would be made available to the jury for review in deliberations.[52] Yet, as such, both the expert who prepared the IVE and the underlying scientific principles and data used in its construction would be subject to validation.[53]

Demonstrative evidence, in contrast, is defined as “physical evidence that one can see and inspect . . . and that, while of probative value and [usually] offered to clarify testimony, does not play a direct part in the incident in question.”[54] Meaning that, in theory, demonstrative evidence itself serves merely to illustrate the verbal testimony of a witness and should not independently hold any probative value to the case.[55] As such, visual aids introduced as demonstrative evidence are not typically allowed into jury deliberations and are not relied on as the basis for expert opinion.[56] Because visual aids offered as demonstrative evidence are not formally admitted as exhibits, courts treat this kind of evidence more leniently than substantive evidence when evaluating its use at trial.[57] An IVE presented as an illustrative aid to expert testimony, rather than as a basis for expert testimony or an independent exhibit, would therefore not be subject to the same level of scrutiny as substantive evidence.[58]

Despite these standards being significantly lowered, an IVE offered as demonstrative evidence would still need to meet basic evidentiary standards of relevancy, fairness, and authentication.[59] However, it is important to note that the extent to which these requirements would be enforced is a question of judicial discretion and ultimately rests with the presiding trial judge.[60]

The initial inquiry into an IVE, regardless of whether it was offered for demonstrative purposes, would determine whether it was relevant under Federal Rules 401 and 402. Rule 401 would require that the IVE have a “tendency to make a fact more or less probable than it would be without the evidence” and be “of consequence in determining the action.”[61] After a preliminary determination of relevancy, and absent any restrictions in Rule 402,[62] a demonstrative IVE would also need to be authenticated using the guidelines of Rule 901.[63]

Rule 901(a) states that to “satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”[64] With respect to computer-generated animations used as demonstrative evidence, the animation must “fairly and accurately reflect the underlying oral testimony . . . aid the jury’s understanding” and be authenticated by a witness.[65] Thus, an animation used solely to illustrate witness testimony requires only that the witness testify that it was an accurate representation of the testimony and,[66] in the case of an expert witness, that it would help the jury to understand the expert’s theory or opinion.[67] Using the current method for computergenerated animations, a witness with personal knowledge of the event in question or an expert who had been made aware of the circumstances surrounding the event could simply testify that the IVE was a fair and accurate portrayal of the expert’s testimony.[68]

Importantly, some commentators have posited that, as a newer technology, the foundational requirements imposed on an IVE could be higher than those required for existing forms of illustrative aid.[69] This might necessitate that the proponent of an IVE meet some or all of the more difficult foundational hurdlesbriefly mentioned aboveregarding the use of scientific evidence.[70] As with other questions of admissibility, however, this determination would be made by the trial judge and the imposition of additional requirements, more akin to substantive evidence, should not be taken as a certainty.[71] Though the underlying data in an IVE offered as demonstrative evidence would undoubtedly be challenged by an opposing party, similar challenges were made in the context of computergenerated animations and were rejected by the courts even during the earliest stages of that technology’s introduction into the legal system.[72]

Regardless of the outcome of future methods used for authentication and despite a finding of relevance using Rules 401 and 402, an IVE could still be excluded by the trial judge under the balancing test of Rule 403.[73] Rule 403 states that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”[74] These broad standards set out by Rule 403 are a result of the high level of subjectivity required in making an admissibility determination, which essentially dictates a case-by-case analysis.[75] As such, decisions made by the trial judge pursuant to Rule 403 are largely exercises of discretion and are reviewed almost exclusively for abuse of discretion at the appellate level.[76] Although a trial judge might exclude an IVE for any of the above reasons listed under Rule 403, the distinct potential for unfair prejudice created by an IVE is the source of concern for much of the remaining discussion in this Note.

The Rule 403 advisory committee notes define unfair prejudice as “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”[77] Broadly speaking, decisions to exclude a piece of evidence for unfair prejudice can be broken down into two primary categories: emotionalism and misuse of evidence.[78] Unfair prejudice caused by overreliance on emotion can be understood as evidence deemed to be “overly charged with appeal to this less rational side of human nature.”[79] Though the goal of Rule 403 is not to exclude all forms of evidence that elicit emotional response, the aim of the trial judge is to moderate the extent to which this response occurs. Aside from emotional concerns, unfair prejudice also results when evidence is misused by the jury after being deemed “admissible for one purpose (or against one party) but not another.”[80] The risk of misuse arises when there is a high likelihood “that the jury will mistakenly consider the evidence on a particular issue or against a particular party, even when properly instructed not to do so.”[81]

In either case, it is necessary for the judge to evaluate whether the probative value of the evidence is substantially outweighed by the risk of a juror’s reliance on an improper basis.[82] To do so, the judge must also take into consideration whether or not the risk can be remedied by issuing a limiting instruction.[83] In making determinations about admissibility, however, it is important for a judge to understand the unique psychological factors implicated by the use of an IVE. Without so doing, a judge may come to a decision which appears on the surface to be well-founded, but ultimately fails to consider the full extent of the risks posed by the use of an IVE. In the next Part, I will discuss several psychological and cognitive factors which should be measured when determining the admissibility of an IVE as demonstrative evidence.

III.  Potential Prejudicial Impacts of Immersive Virtual Environments on Jury Decisionmaking

A.  Designing Emotion in a Virtual Environment

As discussed in Part I, the element of presence in an IVE distinguishes this form of presentation from other forms of CGE. The concept of presence can be understood to manifest itself in a VE in three ways: via social presence, physical presence, and self presence. This Note is primarily concerned with the latter two.[84] Self presence has been defined as “a psychological state in which virtual (para-authentic or artificial) self/selves are experienced as the actual self in either sensory or nonsensory ways.”[85] Similarly, physical presence has been explained as “a psychological state in which virtual (para-authentic or artificial) physical objects are experienced as actual physical objects in either sensory or nonsensory ways.”[86] Reported experiences of both user self and physical presence in IVEs have led researchers to examine the ways in which IVEs influence user emotion, empathy, and embodiment, each of which will be addressed in turn below.

While research into the effects of IVEs on user emotion remains an active area for experimentation and debate,[87] initial studies have shown significant links between user presence in an IVE and stimulated emotion. One particular area of research has focused on the impact of emotional content in VEs and the relationship between user feelings of presence and actual user emotion.[88] The basic premise behind this type of research follows the logic that “if a dark and scary real-life environment elicits anxiety, so will a corresponding VE if the user experiences presence in it.”[89]

Following this theory, studies have been conducted involving mood induction procedures (MIPs), in which VEs have been intentionally designed to provoke specific emotional states.[90] For example, one such study presented participants with three different virtual park scenarios using an HMD with head tracking software and an accompanying joystick to facilitate movement.[91] The three park renderings shared the same virtual structure and objects (for example, trees, lamps, and so forth), but the developers manipulated the sound, music, shadows, lights, and textures with the purpose of inducing either anxiety or relaxation in users. The third park served as a neutral control that was not designed to induce any emotion.[92] Participants were assessed for emotional predisposition prior to the study, and they answered questionnaires regarding emotion and presence throughout the study.[93] The results showed significant variability in user happiness and sadness depending on which park the participant experienced.[94] The anxious park, which contained darker imagery and shadows, reduced user happiness and positive effects, while increasing feelings of sadness and anxiety.[95] In contrast, the relaxing park, which contained brighter imagery, increased user quietness and happiness, while reducing anger, sadness, anxiety, and negative effects.[96] The neutral park, however, did not elicit significant measurable changes.

Building on the same research, a more recent study exposed participants to different virtual park scenarios intentionally designed to elicit one of five specific affective states: joy; anger; boredom; anxiety; and sadness.[97] Effects on participants emotional reactions were measured through both physiological responses (monitoring electrodermal activity) and self-reporting. Based on these measures, researchers found they were able to induce the intended emotions in almost all cases and that they could elicit different emotional states by applying only slight changes to the lighting conditions or sounds in the VE.[98] Thus, these measures exhibit further support for the notion that VEs may be specifically designed to induce intended emotional states through various MIPs and alterations to the design elements in a virtual scenario.[99]

In addition to studies on inducing emotional states, others have examined the effects of IVEs on user empathy.[100] As previously noted, a core fundamental difference between traditional CGE and IVEs is in the form of presentation. Any time an image is rendered on a screen, there is a possibility that a viewer will interpret the image objectively because it appears without a human operator (who would be viewed as a subjective party).[101] Yet, in a traditional CGE display, the physical surroundings of the courtroom remain within the perspective of the viewer and the animation or simulation playing on the screen often retains a fixed camera viewpoint.[102] In contrast, through an IVE, the user can effectively take on the role of any specific actor or third-party observer in any given scenario.[103]

A recent study examining the influence of a user’s point of view on his or her assessment of vehicle speed and culpability in a computer animated car crash sequence demonstrates this effect.[104] Participants were presented with three separate animations of a two-car collision from different points of view: overhead (behind and above Car 1), internal (inside Car 1), and facing (looking directly at Car 1).[105] They were then asked to fill out a questionnaire which involved apportioning blame to either Car 1 or Car 2.[106] The study results demonstrated substantial differences in overall culpability assessments depending on the participant’s point of view, with participants apportioning 92% of the blame to Car 1 from the facing position, but only 43% from the overhead view and 34% from the internal view.[107] Though the study acknowledged limitations on ecological validity, the results were in line with Feigenson and Dunn’s hypothesis that small changes and manipulations to an observer’s point of view in a computer-generated animation may “have various legally significant effects.”[108]

In another study, participants were divided into 2 x 2 groups based on levels of immersion and user personality traits.[109] Participants then watched a documentary news series through VRcontent-based or flat-screen-based technologies, depending on the immersion group.[110] The study found that presence in the VE positively influenced both empathy and embodiment—meaning that users in a higher immersion setting were more likely to feel a sense of compassion for the subjects of the news story.[111] Importantly, the authors of the study urged that immersion in a VE should be recharacterized “as a cognitive dimension alongside consciousness, awareness, understanding, empathizing, embodying, and contextualizing” rather than as a strong stimulus for facilitating illusion.[112] In other words, instead of viewing IVE technology as an illustrative aid in storytelling, it should be viewed as a factor influencing user cognition in reasoning through a proposed narrative.[113]

Based on current findings in both areas of research and despite ongoing debate regarding specific limitations and interplay between these factors in a VE, the potential for an IVE to be purposefully designed to elicit user emotions and empathy appears to exist. While relying on emotion and empathy in our day-to-day decisionmaking can be an ecologically valid tool of assessment, in the courtrooman intentionally hermetically sealed universeit poses a distinct risk of unintended prejudicial effects. Murtha v. City of Hartford provides an example of how these potential effects might be implicated in the trial setting.[114] In 2006, Connecticut Police Officer Robert Murtha was acquitted on all charges relating to his shooting a suspect who was evading police in a stolen car.[115] During the pursuit, the car stalled in snow on the side of the road.[116] As Murtha left his cruiser and approached the car, the suspect attempted to reenter the road and speed off. Murtha fired multiple shots into the driver’s side window that injured the fleeing driver. Dashcam footage from another police cruiser positioned behind Murtha showed him chasing the vehicle and firing into the car as it sped off.[117]

At trial, Murtha argued that his use of deadly force was justified as an act of self-defense because, at the time, he believed that the car was headed towards him.[118] Murtha presented the jury with a hybrid of the dash cam footage and a computergenerated animation to illustrate his point of view.[119] As the driver begins to pull onto the road, the original video freezes and an interspliced animation rotates the field of view from the liveaction shot to a recreation of Murtha’s first-person perspective.[120] Comparing the original footage to the animation, there are some clear discrepancies: (1) the car re-enters the road at a sharper angle; (2) Murtha is placed partially within the path of the car and his gun is already drawn and extended; (3) as the car begins to drive off, Murtha moves slowly alongside the car while firing instead of running.[121] However, over the prosecutor’s objections as to the inaccuracy of the animation, the judge determined that the video was a fair and accurate depiction of Murtha’s recollection and issued a limiting instruction that the animation was not meant to depict a precise reenactment.[122]

In creating a computer-generated display, a designer’s decision to provide one viewpoint over another “can potentially alter which ‘character’ in an evidence presentation a viewer identifies with, or aligns themselves with.”[123] Through the animation in Murtha, the jury effectively took on the role of the officer in the shooting. Putting any discrepancies in the animation aside, placing the jurors in the shoes of the officer alone created the potential for unfair prejudice resulting from actorobserver bias. If the same animation in Murtha was presented in the form of an IVE, the additional factor of user presence would further complicate this potential. Based on the above studies, an IVE can be intentionally designed to elicit, or even unintentionally cause, a user to feel strong emotions, empathy, and overall self-alignment, which would significantly magnify the risk of unfair prejudice. Though these potential sources of prejudice may not ultimately have been grounds for reversal in Murtha,[124] they should be recognized as important factors when addressing the question of prejudicial effects in an IVE.

B.  Body Ownership Illusions

When an IVE user feels strongly about another person’s emotions or circumstances in a VE, this can translate into a cognitive feeling of embodiment.[125] Thus, in addition to increasing user emotion and empathy through presence, the virtual body experienced by the user can begin to feel like an analog of the user’s biological body generated through user cognition.[126] As a result, the user-tracking technologies used to facilitate an IVE uniquely involve the potential to produce body ownership illusions (“BOIs”).[127] BOIs are created when non-bodily objects (like a virtual projection or prosthetic limb) are experienced as part of the body through a perceived association with bodily sensations such as touch or movement.[128] The first experiment by Botvinick and Cohen introduced the concept of BOIs through a rubber hand illusion.[129] Participants in the original experiment had their hands concealed and a rubber hand with a similar posture was placed in front of them. An experimenter then stroked both the real and rubber hands simultaneously, causing the majority of participants to report feeling that the rubber hand was a part of their own body.[130] This phenomenon, termed the rubber hand illusion, was later shown to activate areas of the brain “associated with anxiety and interoceptive awareness” when “the fake limb is under threat and at a similar level as when the real hand is threatened.”[131] Thus, participants in one study reacted in anticipation of pain, empathic pain, and anxiety when experimenters occasionally threatened a rubber hand with a needle while participants were under the effects of a BOI.[132]

Subsequent experiments have also tested the extent to which certain multisensory factors are necessary to induce BOIs.[133] While the original experiment involved a visuotactile cue (where participants experienced a combination of visual stimulation and physical contact), further experiments have induced BOIs solely through visuomotor input.[134] Visuomotor stimulation involves participants performing active or passive movements while simultaneously seeing the artificial body (or body part) perform the same movements.[135] Most significantly, this phenomenon has been shown to occur in VEs.[136]

For example, in one study, experimenters outfitted participants with an HMD and a handtracking data glove and asked them to focus on the movement of a virtually projected right arm which moved synchronously with the actions of their real right arm, hand, and fingers.[137] The participants’ real right arm was located approximately twenty centimeters away from the virtual projection. Participants were then asked to use their left arm, which was not tracked or projected, to point to their right arm.[138] The participants largely tended to misidentify their real hand and instead identify the virtual hand, in some cases even after the virtual simulation had terminated.[139] The results were consistent with prior studies involving the rubber hand illusion and showed that the illusion of ownership could occur as a result of visuomotor synchrony in movements between the real and virtual hand.[140]

Additional studies of BOIs in VR have led to consistent findings that VEs can produce these effects when homogenous body parts are moved synchronously.[141] These studies have found BOIs resulting from the synchronous movement of virtual legs,[142] upper bodies,[143] and even full bodies.[144]

In an IVE, the occurrence of BOIs as a result of visuomotor stimulation has significant implications as a potential source of unfair prejudice. Beyond the concern that user emotion and empathy in an IVE might cause a juror to sympathize more with a party whose perspective he or she shares, BOIs introduce a separate issue: synchrony between a juror’s movements and those of an actor perceived in an IVE could cause the juror to temporarily feel as if he or she is that person. While some psychological studies have highlighted benefits of inducing BOIs through VR in the courtroom, for example in the potential for reducing racial biases,[145] the risk for unfair prejudice is also exceptionally high. From the standpoint of emotional prejudice, BOIs created through an IVE can both cause the viewer to feel anxious or threatened in a scenario[146] and ultimately to identify with the avatar.[147] For example, if the animation in Murtha were presented through an IVE (with jurors wearing an HMD and data gloves), the jurors could feel as if the car was coming towards their own bodies, eliciting fear or anxiety through an apprehension of contact. Moreover, this vivid and emotional experience could cause a juror to disregard conflicting pallid evidence in the case as to the car’s trajectory or the sequence of events and unduly rely on the IVE, despite its being used merely as a representation of the propounding party or witness’s theory of the case.

IV.  Problems with the Current Rules for Demonstrative Computer-Generated Evidence

A.  Case Studies

When subjecting jurors to an IVE, both presence and the phenomenon of BOIs create a unique potential for unfair prejudice. Even though IVEs are uniquely immersive and extremely vivid when introduced as demonstrative evidence, they could still remain subject to surprisingly low evidentiary standards. While the rules presented in Part II may at face value appear to be a significant burden for the proponent of an IVE, as stated previously, the characterization of an IVE as substantive or demonstrative and the broad discretion afforded to trial judges can significantly impact the extent to which the rules are used to allow the use of IVE at trial. The treatment of CGE in the following cases is illustrative of the more lenient approach applied in many jurisdictions when dealing with demonstrative evidence.[148]

In Commonwealth v. Serge, a defendant found guilty of first-degree murder for killing his wife appealed the State’s use of a computer-generated animation as demonstrative evidence.[149] The animationintroduced to illustrate the expert testimonies of a forensic pathologist and crime scene reconstructionistpurported to show the manner in which the defendant shot his wife.[150] Prior to admitting the animation, the trial court required that it be authenticated as both a fair and accurate depiction of the testimony and that any potentially inflammatory material be excluded.[151] The trial court also issued a lengthy jury instruction at trial cautioning that the animation was a demonstrative exhibit for the sole purpose of illustrating expert testimony and cautioned the jury not to “confuse art with reality.”[152] The defendant challenged the animation as unfairly prejudicial and improperly authenticated under Pennsylvania Rule of Evidence 901(a) given that the depictions were unsupported by the record or the accompanying expert opinions.[153] The Pennsylvania Supreme Court found both that the animation was a proper depiction of the witness testimony and that the limiting instruction and lack of dramatic elements in the animation were sufficient to eliminate any concerns over prejudice.[154] The court affirmed the admissibility of the animation and held that the animation properly satisfied the basic requirements of Pennsylvania Rules of Evidence 401, 402, 403, and 901.[155]

More recently, in a Utah case—State v. Pereaa defendant convicted of two counts of aggravated murder and two counts of attempted murder appealed his sentence, arguing, in part, that computer-generated animations, excluded by the district court, were sufficiently authenticated under Utah Rule of Evidence 901(a).[156] At trial, the defendant attempted to introduce two animations to visually represent the testimony of a crime scene reconstruction expert.[157] The expert testified that “although he did not personally create the animations, they ‘g[a]ve an indication of what [he] believe[d] may have happened,’” making it easier for the jury to understand his testimony.[158] The State objected for lack of foundation and on the grounds that the animations did not accurately represent the facts, because under the State’s theory there was only one shooter.[159] Reversing the ruling of the district court, the Utah Supreme Court held that despite a lack of knowledge about the creation of the animation on the part of the testifying expert, Rule 901 “does not require that the demonstrative evidence be uncontroversial, but only that it accurately represents what its proponent claims.”[160] The district court’s exclusion was an error because the crime scene reconstruction expert confirmed that the animations accurately represented his interpretation of the facts.

In both cases, the computer-generated animations were deemed relevant under Rules 401 and 402, properly authenticated under Rule 901, and passed the balancing test of Rule 403. However, in neither case were the proponents of the animations obligated to meet foundational requirements beyond an assertion that the animation “fairly and accurately” depicted the testimony of the witnesses—despite the fact that the animations were constructed solely using witness testimony about their memories of the event. Additionally, both courts found that the trial court’s issuance of limiting instructions to the jury was sufficient to combat any prejudicial effects. Under examination, the court’s analyses contain multiple flaws which would be further complicated if IVEs were at issue.

B.  Issues with the Court’s Analyses

First, in creating computer-generated representations of a witness’s testimony “[n]o matter how much evidence exists, there is never enough to fill in every detail necessary. . . . The expert (or the animator) must make assumptions to fill in the blanks.”[161] In Serge, like in Murtha, the animators took significant liberties in creating the animation.[162] By placing a knife next to the victim and dressing the defendant’s character in red plaid, the animators made decisions that were not necessarily supported by the physical evidence but were then authenticated by the accompanying witness’s memory or an expert’s theory as to what happened.[163]

Like an animation, the creation of an IVE inevitably involves choices by a designer regarding not only what is perceived, but also how it is perceived. Without proper safeguards or consideration, a party at trial could ostensibly introduce an IVE for demonstrative purposes which appeared to be sufficiently limited in emotional content to the eyes of the trial judge but was designed using MIPs to subtly influence jury attitudes towards a given scenario. For example, in arguing a self-defense claim, a party could ask designers of an IVE to select color palettes and illumination levels more likely to elicit fear and anxiety.[164] As explained in Part III, even subtle or indirect changes to factors such as lighting, point of view, level of interactivity, or synchrony of movement can have significant psychological implications for users of an IVE.[165] However, none of these factors are involved in the current analysis for demonstrative CGE in many jurisdictions.[166]

Second, it seems clear that in combatting highly vivid demonstrative evidence, “the opponent of the animation should be allowed [on cross-examination] to demonstrate to the jury that the . . . animation [is] based, at least partially, on assumptions and conjectures, and not on purely objective, scientific factual determinations.”[167] Yet, under the current standards for demonstrative CGE, many jurisdictions do not require the testifying witness to have personal knowledge regarding the creation of the animation.[168] In Perea, for example, the animation was admitted despite the accompanying witness possessing no information about the creation of the animation.[169] A similar decision by a trial judge to admit an IVE as demonstrative evidence, without an accompanying witness having knowledge about the decisions or assumptions made in creating the IVE, would likewise significantly disadvantage an opponent in combatting its highly vivid qualities through cross-examination.

Third, both courts relied heavily on jury instructions to moderate the potential prejudicial impacts of the animations on the jury.[170] Though the general rule is to assume that juries will abide by limiting instructions,[171] the Supreme Court has previously recognized that “there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great . . . that the practical and human limitations of the jury system cannot be ignored.”[172] Moreover, research in the field of social psychology has “repeatedly demonstrated that . . . limiting instructions are unsuccessful at controlling jurors’ cognitive processes.”[173] While this does not necessitate the presumption that all jury instructions are ineffective, it does call into question whether a jury subjected to the highly vivid and unique psychological effects of an IVE might have trouble following a judge’s directions as to the permissible and impermissible purposes for its use.

V.  Recommendations

In anticipation of the onset of IVEs in the courtroom, this Note proposes several changes to the current standards for admissibility, as well as judicial guidelines for best practice in moderating the prejudicial impacts of IVEs.

A.  Stricter Foundational Requirements

Though it would be impractical to develop a “one-size-fits-all” method in dealing with the numerous potential contexts and purposes for which an IVE might be offered as demonstrative evidence, uniformly increasing the foundational requirements for admitting demonstrative IVEs would help to combat some of the potential sources for prejudice.

In State v. Swinton, the Connecticut Supreme Court recognized the need for changes in the rules governing demonstrative evidence with regard to evolving computer technologies.[174] Addressing the binary distinction of the courts between computer animations and computer simulations, the court recognized that there are some kinds of evidence which do “not fall cleanly within either category.”[175] Though Swinton addressed the enhancement of photographs through Adobe Photoshop, the court’s discussion is particularly applicable in relation to an IVE.[176] The court found that “the difference between presenting evidence and creating evidence was blurred”[177] and endorsed a previously established general rule requiring that in all cases involving CGE there be “testimony by a person with some degree of computer expertise, who has sufficient knowledge to be examined and cross-examined about the functioning of the computer.”[178] In addition, the court went one step further in setting out factors with which the expert should be familiar and which could be weighed in determining the reliability of, and adherence to, procedural requirements.[179]

Adopting the court’s logic, this Note recommends that as a basic requirement, an expert who prepared the IVE should be present at the trial to testify regarding the expert’s qualifications and the underlying processes used to create the IVE. This would ensure that the opposing party has the opportunity to cross-examine the expert regarding the underlying data and assumptions used in its creation. In continued recognition of the differences between substantive and demonstrative evidence, this would not necessitate that the proponent satisfy all of the requirements for admitting scientific evidence under Rule 702 (and the Daubert or Frye tests).[180] However, this would at least afford the opposing party the opportunity to cross-examine someone with personal knowledge of the IVE technology and its creation.[181]

B.  Evaluating and Limiting Prejudicial Effects

While establishing an adequate foundation by requiring the presence of an informed expert works to combat some of the unfairness stemming from reliability and misuse of evidence under the current demonstrative standards, this alone is insufficient to curb the range of significant potentials for prejudice. In addition to raising the foundational requirements, there are several factors which should be considered by a judge in conducting the Rule 403 balancing test. In addressing the potential for juror’s unfair reliance on an IVE, consideration of the factors identified in Part IV—chiefly the role of presence and BOIs—should be a necessary predicate to admission. This would require judges to scrutinize not only the design factors in an IVE, but also the level of interactivity facilitated.

Interestingly, beyond mere consideration of such factors, it may also be possible for judges to take affirmative steps to impose limitations on an IVE which could help to mitigate juror overreliance. As this Note has repeatedly stated, the source of many of the potentials for prejudice created by IVEs is their unique vividness and interactivity, which produce feelings of presence and body ownership in the user.[182] Both psychologicalpresence research and BOI studies indicate that there may be ways to limit, reduce, or remove the feelings of presence and ownership in a VE.[183] Such phenomenon, termed as “breaks in presence” (BIPs),[184] occur when the user’s feelings of ownership or consciousness within the VE are disrupted by perceived virtual or real-world interferences.[185]

Under Rule 611(a), judges have broad authority to regulate the admission of demonstrative evidence.[186] As such, judges could potentially use BIPs to mitigate the prejudicial effects of an IVE. Multiple studies have concluded that BOIs occur in VEs only when the movements depicted are relatively synchronous.[187] Because of this, “[w]hen there is asynchrony the illusion does not occur.”[188] With this knowledge, a judge would have the option to instruct the proponent of an IVE to increase the latency (delay) between the movements of the juror and the avatar, thereby reducing the likelihood that a BOI would occur. In another study, examiners found that replacing a perceived limb with a virtual arrow indicator would similarly reduce the BOI phenomenon.[189] Thus, an alternative option might be to instruct the proponent to limit the realistic qualities of the avatar by replacing human features with indicators. Naturally, as further studies are completed and the concepts of presence and ownership in VEs become better understood, so too will the options available to judges in imposing limitations.


As was recognized by the drafters of the Federal Rules of Evidence, it is difficult to define bright line admissibility rules.[190] Despite these difficulties, it stands that the current treatment of demonstrative evidence in many jurisdictions does not properly accommodate IVEs. Though it may appear contrary to logic to think that an IVE could be treated like a chart or graph in the courtroom, under current standards this might very well become the case in some jurisdictions. This author agrees that “every new development is eligible for a first day in court;[191] however, we as a legal community should be cognizant of the differences between past and emerging technologies and of the potential prejudicial risks newer technologies may pose. It is inevitable that IVEs will continue to make their way into the courtroom, but they should not proceed unchecked. The proposed increase in authentication requirements, as well as the potential factors for judges in evaluating and moderating the use of IVEs in the courtroom, are but an initial step in integrating IVEs for courtroom use. Thus, it remains essential that further psychological and cognitive studies be conducted with regard to the use of IVEs in the courtroom.

[*] *.. Senior Submissions Editor, Southern California Law Review, Volume 92; J.D. Candidate 2019, University of Southern California Gould School of Law; B.A. 2015, University of California, Riverside. My sincere gratitude to Professor Dan Simon for his guidance and the editors of the Southern California Law Review for their excellent work.  I would also like to thank my parents, Pamela and Robert Bunker, for their unwavering support and encouragement.

 [1]. High Impact Bringing Virtual Reality to the Courtroom, High Impact, (last visited Jan. 23, 2019).

 [2]. Damian Schofield, The Use of Computer Generated Imagery in Legal Proceedings, 13 Digital Evidence & Electronic Signature L. Rev. 3, 3 (2016). Some commentators have attributed the increase in use of computer-generated evidence (“CGE”) in the courtroom to three primary factors: (1) we have become a more visual society; (2) people retain much more of what they see than what they hear; and (3) technological advancements and decreasing costs are making this form of evidence more affordable for clients. See Mary C. Kelly & Jack N. Bernstein, Comment, Virtual Reality: The Reality of Getting It Admitted, 13 John Marshall J. Computer & Info. L. 145, 148–50 (1994).

 [3]. Carrie Leonetti & Jeremy Bailenson, High-Tech View: The Use of Immersive Virtual Environments in Jury Trials, 93 Marq. L. Rev. 1073, 1073 (2010).

 [4]. Compare Betsy S. Fielder, Are Your Eyes Deceiving You?: The Evidentiary Crisis Regarding the Admissibility of Computer Generated Evidence, 48 N.Y.L. Sch. L. Rev. 295 (2003) (discussing potential problems posed by the use of CGE), and Gareth Norris, Computer-Generated Exhibits, the Use and Abuse of Animations in Legal Proceedings, 40 Brief 10 (2011) (weighing the pros and cons of computer-generated animations in the courtroom), with Fred Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules Of Evidence, and the Need for Institutional Reform and More Judicial Acceptance, 13 Harv. J.L. & Tech. 161 (2000) (arguing that computer-generated animations are akin to earlier forms of demonstrative media and should be introduced into the courtroom under existing standards).

 [5]. See, e.g., Juries ‘Could Enter Virtual Crime Scenes’ Following Research, BBC (May 24, 2016), (reporting on a £140,000 European Commission grant to the Staffordshire University project for research and experiments on technology and techniques to transport jurors to virtual crime scenes).

 [6]. Fredric I. Lederer, The Courtroom 21 Project: Creating the Courtroom of the Twenty-First Century, 43 Judges’ J., Winter 2004, at 39, 42.

 [7]. Id.

 [8]. Id.

 [9]. Lars C. Ebert et al., The Forensic Holodeck: An Immersive Display for Forensic Crime Scene Reconstructions, 10 Forensic Sci. Med. Pathology 623, 62426 (2014).

 [10]. Id. A similar virtual reality (“VR”) reconstruction was developed in the United States by Emblematic Group in 2012 using audio files of 911 calls, witness testimony, and architectural drawings to re-create the events of the widely publicized Trayvon Martin shooting. Emblematic Group, One Dark Night-Emblematic Group VR, YouTube (May 9, 2015),
=1hW7WcwdnEg. It is also offered for download in the Google Play and Steam Store. See Mike McPhate, California Today: In Virtual Reality, Investigating the Trayvon Martin Case, NY Times (Feb. 24, 2017), (interviewing one of the creators).

 [11]. See Marc Cieslak, Virtual Reality to Aid Auschwitz War Trials of Concentration Camp Guards, BBC (Nov. 20, 2016),

 [12]. Although the immersive virtual environment (“IVE”) version has not yet been used at trial, the same 3-D model was previously utilized in the prosecution of wartime SS camp guard Reinhold Hanning to help assert his point of view from his post at a watchtower in the camp. Id.

 [13]. Basic VR headsets can be purchased for under $100 (for example, Google Cardboard and Samsung Gear VR), with more high-end headsets costing around $600 (for example, Oculus Rift and HTC Vive). See John Gaudiosi, Over 200 Million VR Headsets to Be Sold by 2020, Fortune (Jan. 21, 2016),; see also Stevi Rex, Global Virtual Reality Industry to Reach $7.2 Billion in Revenues in 2017, Greenlight Insights (Apr. 11, 2017), (forecasting global VR product sales to reach $7.2 billion by the end of 2017).

 [14]. See, e.g., Lamber Goodnow Legal Team Brings Virtual Reality Technology to the Courtroom, PR Newswire (Jan. 27, 2017),
-brings-virtual-reality-technology-to-the-courtroom-300397710.html (reporting on Arizona personal injury firm advertising use of VR in pending cases) (“In the old days, I’d use demonstrative exhibits, visual aids and witness statements in an attempt to ‘transport a jury to an accident scene.’ With virtual reality, not only can I transport jurors to the accident scene, I can put them in the car at impact.”).

 [15]. See, e.g., High Impact Bringing Virtual Reality to the Courtroom, supra note 1.

 [16]. See Nsikan Akpan, How Cops Used Virtual Reality to Recreate Tamir Rice, San Bernardino Shootings, PBS News Hour (Jan. 13, 2016, 5:00 PM), (discussing law enforcement agencies use of laser scanners at crime scenes and current projects to convert these kinds of scans for use with VR headsets) (“That’s what I see coming. We’re going to be putting these goggles on juries and say look around and tell me what you see.”). For more on various types of 3-D laser scanning devices employed by law enforcement in the United States, including use with drone technologies, see Robert Galvin, Capture the Crime Scene, Officer (Jul. 19, 2017),

 [17]. See Jeremy N. Bailenson et al., Courtroom Applications of Virtual Environments, Immersive Virtual Environments, and Collaborative Virtual Environments, 28 Law & Pol’y 249, 255–58 (2006).

 [18]. Leonetti & Bailenson, supra note 3, at 1076.

 [19]. See Bailenson et al., supra note 17, at 258–60.

 [20]. Leonetti & Bailenson, supra note 3, at 1118.

 [21]. Caitlin O. Young, Note, Employing Virtual Reality Technology at Trial: New Issues Posed by Rapid Technological Advances and Their Effects on Jurors’ Search for “The Truth,93 Tex. L. Rev. 257, 258 (2014).

 [22]. For further explanation of the concept of immersion in virtual environments (“VEs”), see Mel Slater & Sylvia Wilbur, A Framework for Immersive Virtual Environments (FIVE): Speculations on the Role of Presence in Virtual Environments, 6 Presence 603, 604–05 (1997) (“Immersion is a description of a technology, and describes the extent to which the computer displays are capable of delivering an inclusive, extensive, surrounding and vivid illusion of reality to the senses of a human participant.” (emphasis in original)).

 [23]. Patrick Costello, Health and Safety Issues Associated with Virtual Reality – A Review of Current Literature 6–8 (1997),

 [24]. See Frank Stenicke et al., Interscopic User Interface Concepts for Fish Tank Virtual Reality Systems, in 2007 IEEE Virtual Reality Conference 27, 27–28 (2007).

 [25]. George Robertson et al., Immersion in Desktop Virtual Reality, in Proceedings of the 10th Annual ACM Symposium on User Interface Software and Technology 11, 11 (1997); see also Stenicke et al., supra note 24, at 27. Modern-day desktop VR examples can be seen in video games, like the Call of Duty franchise, where users control their in-game avatars through a handheld controller or mouse/keyboard interface. These kinds of video games can be played from both first-person and third-person perspectives and computer-generated animations are rendered on a monitor (primarily via television and computer screens).

 [26]. Stenicke et al., supra note 24, at 27.

 [27]. See D.W.F. van Krevelen & R. Poelman, A Survey of Augmented Reality Technologies, Applications and Limitations, 9 Int’l J. Virtual Reality, no. 2, 2010, at 1, 1.

 [28]. Id. A popular example of this type of technology can be seen in Niantic’s Pokémon Go, which was released for mobile devices in July 2016. The game utilizes a user’s phone/tablet camera (which functions to depict their surrounding physical environment) and overlays virtual animations of monsters onto the camera image. Users can interact with the monsters through their touch-screen interface and the user’s real-world movements are tracked using their devices GPS services. See Pokémon Go, (last visited Dec. 28, 2018).

 [29]. See Bailenson et al., supra note 17, at 251.

 [30]. Id. at 250–53, 259.

 [31]. An alternative configuration is a Cave Automatic Virtual Environment (“CAVE”) where the user moves in a room surrounded by rear-projection screens. The user, wearing stereoscopic glasses instead of a head-mounted display (“HMD”), is tracked through an electromagnetic device and updated visual images are reflected on the screens. See id. at 253.

 [32]. Id.

 [33]. Ralph Schroeder, Social Interaction in Virtual Environments: Key Issues, Common Themes,

and a Framework for Research, in The Social Life of Avatars 1, 2 (2002) (citation omitted).

 [34]. For a comprehensive overview of studies on user feelings of presence in IVEs, see generally James J. Cummings & Jeremy N. Bailenson, How Immersive Is Enough? A Meta-Analysis of the Effect of Immersive Technology on User Presence, 19 Media Psychol. 272 (2016) (analyzing meta data collected from eighty-three studies on immersive system technology and user experiences of presence).

 [35]. Id. at 274. Of the factors relating to the level of user presence, “results show that increased levels of user-tracking, the use of stereoscopic visuals, and wider fields of view of visual displays are significantly more impactful than improvements to most other immersive system features, including quality of visual and auditory content.” Id. at 272.

 [36]. Neal Feigenson, Too Real? The Future of Virtual Reality Evidence, 28 Law & Pol’y 271,

273 (2006). Vividness means the extent to which the display forms a “sensorially rich environment,” and interactivity results from the ability of the user to “influence the form or content of the mediated environment.” Id.

 [37]. See Young, supra note 21, at 261.

 [38]. See infra Part III.

 [39]. Leonetti & Bailenson, supra note 3, at 1077.

 [40]. See generally Fed. R. Evid.

 [41]. Feigenson, supra note 36, at 276.

 [42]. See generally Laura Wilkinson Smalley, Establishing Foundation to Admit Computer-Generated Evidence as Demonstrative or Substantive Evidence, 57 Am. Juris. Proof of Facts 3d 455 (Westlaw 2018) (providing an overview of the various legal foundations for CGE’s admission into evidence).

 [43]. Karen L. Campbell et al., Avatar in the Courtroom: Is 3D Technology Ready for Primetime?, 63 Fed’n Def. & Corp. Counsel Q. 295, 296 (2013).

 [44]. Id.

 [45]. Id. at 298.

 [46]. Substantive Evidence, Black’s Law Dictionary (10th ed. 2014).

 [47]. Kurtis A. Kemper, Admissibility of Computer–Generated Animation, 111 A.L.R. 5th 529, § 2 (2003).

 [48]. Id.

 [49]. Leonetti & Bailenson, supra note 3, at 1098–99 (“The impediments that a proponent of an IVE would face, under Rule 403, the best evidence rule, or Rule 901, are chiefly matters of foundation, i.e., the admissibility of an IVE turns on whether the proponent could establish its accuracy, reliability, and authenticity.”).

 [50]. Id. For example, a blood spatter analyst could use a recreation of the crime scene to explain her findings.

 [51]. Id. at 1099 (footnotes omitted). For a comprehensive view of potential courtroom and pre-trial IVE applications, see generally Bailenson et al., supra note 17.

 [52]. Leonetti & Bailenson, supra note 3, at 1099.

 [53]. Campbell et al., supra note 43, at 299. Thus, requiring a sufficient showing of:

(1) the qualifications of the expert who prepared the simulation and (2) the capability and reliability of the computer hardware and software used to create the simulation . . . [that] (3) the calculations and processing of data were done on the basis of principles meeting the standards for scientific evidence under Rule 702; (4) the data used to make the calculations were reliable, relevant, complete, and input properly; and (5) the process produced an accurate result.


 [54]. Demonstrative Evidence, Black’s Law Dictionary (10th ed. 2014).

 [55]. I. Neel Chatterjee, Admitting Computer Animations: More Caution and New Approach Are Needed, 62 Def. Couns. J. 36, 37 (1995).

 [56]. Smalley, supra note 42, § 8.

 [57]. Id.

 [58]. Despite the fact that an IVE would utilize computer programming to create the illustrative aid, the separate treatment of an IVE as demonstrative or substantive evidence would not depend on whether VR technology was employed to achieve the rendering. See Galves, supra note 4, at 228 (“Although demonstrative animations use programs in design, the substantive result they create is based on the witness’s testimony rather than numerical calculations and other underlying input data.”).

 [59]. Feigenson, supra note 36, at 276. Although demonstrative evidence is not technically “evidence” in the context of the Federal Rules, standards of relevance, fairness, and authentication are still enforced by courts in weighing the admissibility of demonstrative evidence through analogy. Id.

 [60]. See Fed. R. Evid. 611(a). “The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.” Id.

 [61]. Fed. R. Evid. 401.

 [62]. See Fed. R. Evid. 402. “Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible.” Id.

 [63]. See Fed. R. Evid. 901(a).

 [64]. Id.

 [65]. Chatterjee, supra note 55, at 37.

 [66]. Smalley, supra note 42, § 9.

 [67]. See, e.g., Gosser v. Commonwealth, 31 S.W.3d 897, 903 (Ky. 2000) (“[B]ecause a computer-generated diagram, like any diagram, is merely illustrative of a witness’s testimony, its admission normally does not depend on testimony as to how the diagram was prepared, e.g., how the data was gathered or inputted into the computer.”), abrogated on other grounds by Elery v. Commonwealth, 368 S.W.3d 78 (Ky. 2012).

 [68]. See Fed. R. Evid. 901(b)(1). Significantly, this would include a re-creation of a scene or accident based on the personal knowledge of a sponsoring witness. See Leonetti & Bailenson, supra note 3, at 1098.

 [69]. See Feigenson, supra note 36, at 277.

 [70]. Campbell et al., supra note 43, at 299.

 [71]. Though, as argued in Part V, subjecting all IVE evidence to more substantive standards could have a moderating effect on some of the concerns raised in Part III.

 [72]. See, e.g., People v. McHugh, 476 N.Y.S.2d 721, 722–23 (Sup. Ct. 1984) (rejecting a motion for a pre-trial Frye hearing despite no prior instances of computer-generated animations being used at trial) (“While this appears to be the first time such a graphic computer presentation has been offered at a criminal trial, every new development is eligible for a first day in court.”); see also People v. Hood, 62 Cal. Rptr. 2d 137, 140 (Ct. App. 1997) (holding that the Kelly formulation for “new scientific procedures” does not apply to computer-generated animations when introduced as demonstrative evidence).

 [73]. See Fed. R. Evid. 403.

 [74]. Id.

 [75]. Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:12 (4th  ed. 2013) (“Much depends on surrounding facts, circumstances, issues, the conduct of trial, and the evidence adduced already and expected as proceedings move forward.”).

 [76]. Id.

 [77]. Fed. R. Evid. 403, advisory committee’s notes to 1972 proposed rules.

 [78]. Mueller & Kirkpatrick, supra note 75, § 4:13.

 [79]. Id.

[E]vidence is unfairly prejudicial in the sense of being too emotional if it is best characterized as sensational or shocking; if it provokes anger, inflames passions, or if it arouses overwhelmingly sympathetic reactions; provokes hostility or revulsion; arouses punitive impulses; or appeals to emotion in ways that seem likely to overpower reason.

Id. (footnotes omitted).

 [80]. Id.

 [81]. Id.; see, e.g., United States v. Brown, 490 F.2d 758, 764 (D.C. Cir. 1973) (“Despite a limiting instruction to the effect that the evidence is to be considered solely on the issue of the declarant’s state of mind (the proper purpose), there is the ever-present danger that the jury will be unwilling or unable to so confine itself.”).

 [82]. Fed. R. Evid. 403, advisory committee’s notes to 1972 proposed rules.

 [83]. Id.

 [84]. See Kwan Min Lee, Presence, Explicated, 14 Comm. Theory 27, 42 (2004). Though important with respect to the study of co-presence and other social phenomenon experienced in an IVE, social presence falls outside the scope of this Note. Social presence pertains to the way in which virtually rendered social actors are experienced as actual social actors by a user and is an important concept in the understanding of feelings of co-presence between multiple users in a VE. For more on social presence, see id. at 45.

 [85]. Id. at 46.

 [86]. Id. at 44.

 [87]. Julia Diemer et al., The Impact of Perception and Presence on Emotional Reactions: A Review of Research in Virtual Reality, 6 Frontiers Psychol., Jan. 2015, at 1.

 [88]. See R.M. Baños et al., Immersion and Emotion: Their Impact on the Sense of Presence, 7 CyberPsychology & Behav. 734, 735 (2004); see also Rosa M. Baños et al., Presence and Emotions in Virtual Environments: The Influence of Stereoscopy, 11 CyberPsychology & Behav. 1, 2–3 (2008).

 [89]. Anna Felnhofer et al., Is Virtual Reality Emotionally Arousing? Investigating Five Emotion Inducing Virtual Park Scenarios, 48 Int’l J. Hum.-Computer Stud. 48, 49 (2015) (citation omitted).

 [90]. For a seminal text on psychological laboratory designs for mood induction procedures, see generally Maryanne Martin, On the Induction of Mood, 10 Clinical Psychol. R. 669 (1990).

 [91]. Giuseppe Riva et al., Affective Interactions Using Virtual Reality: The Link Between Presence and Emotions, 10 CyberPsychology & Behav. 45, 46–47 (2007).

 [92]. Id. at 46.

 [93]. Id. at 46–48.

 [94]. Id. at 47.

 [95]. Id. at 49.

 [96]. Id.

 [97]. See Felnhofer et al., supra note 89, at 50.

 [98]. Id. at 53.

 [99]. Id. at 54. Interestingly, in contrast to these findings, an experiment performed using a desktop VR system to attempt to assess whether a simulated level of illumination could impact the affective appraisal of users in a VE failed to yield any measurable results. See Alexander Toet et al., Is a Dark Virtual Environment Scary?, 12 CyberPsychology & Behav. 363, 363 (2009). This suggests that the lack of interactivity in a non-immersive environment means that these kinds of systems may not pose the same risks as an IVE in strongly influencing user emotion through design. See id.

 [100]. See generally, e.g., Donghee Shin, Empathy and Embodied Experience in Virtual Environment: To What Extent Can Virtual Reality Stimulate Empathy and Embodied Experience?, 78 Computers Hum. Behav. 64 (2017).

 [101]. Schofield, supra note 2, at 13.

 [102]. See id.

 [103]. Id.

 [104]. See Gareth Norris, The Influence of Angle of View on Perceptions of Culpability and Vehicle Speed for a Computer-Generated Animation of a Road Traffic Accident, 20 Psychiatry, Psychol. & L. 248, 252–53 (2013).

 [105]. Id. at 250.

 [106]. Id. at 251.

 [107]. Id.

 [108]. Id. at 252 (citation omitted).

 [109]. Shin, supra note 100, at 66.

 [110]. Id.

 [111]. Id. (“By experiencing a virtual version of the story location as a witness/participant, and by feeling the perspective of a character depicted in the story, users received specialized access to the sights and sounds (and even to the feelings and emotions) associated with the story.”).

 [112]. Id. at 71. Interestingly, the study also found that, despite higher levels of immersion, users with a lower empathy trait had lower levels of reported embodiment and empathy—suggesting that the disposition of certain users may have a correlation on their empathy within a virtual world. Id. at 69.

 [113]. Id. at 69 (“VR developers propose immersion but users process it.”).

 [114]. See State v. Murtha, CR03-0568598T (Conn. Super. Ct., JD Hartford, 2006); see also Neal Feigenson & Christina Spiesel, Law on Display: The Digital Transformation of Legal Persuasion and Judgment 92103 (2009) (discussing the case in detail).

 [115]. Feigenson & Spiesel, supra note 114, at 92.

 [116]. Id.

 [117]. Id.

 [118]. Id. at 92–93.

 [119]. Id. at 93–94.

 [120]. Id.; see also NYU Press, Law on Display – Murtha Video, Part One, YouTube (Sept. 23, 2009), (showing the original police footage); NYU Press, Law on Display – Murtha Video, Part 2, YouTube (Sept. 23, 2009), (showing the edited footage with the animation used at trial).

 [121]. Feigenson & Spiesel, supra note 114, at 97.

 [122]. Id. at 9495.

 [123]. Schofield, supra note 2, at 13.

 [124]. Feigenson & Spiesel, supra note 114, at 251 n.113.

 [125]. See Konstantina Kilteni et al., The Sense of Embodiment in Virtual Reality, 21 Presence 373, 381–82 (2012).

 [126]. Id.

 [127]. Natalie Salmanowitz, Unconventional Methods for a Traditional Setting: The Use of Virtual Reality to Reduce Implicit Racial Bias in the Courtroom, 15 U.N.H. L. Rev. 117, 141 (2016) (“Instead of simply personifying an animated character in a digital game, immersive virtual environments can induce body ownership illusions, in which individuals temporarily feel as though another person’s body part is in fact their own.”).

 [128]. Konstantina Kilteni et al., Over My Fake Body: Body Ownership Illusions for Studying the Multisensory Basis of Own-Body Perception, Frontiers Hum. Neuroscience, Mar. 2015, at 1, 2.

 [129]. Matthew Botvinick & Jonathan Cohen, Rubber Hands ‘Feel’ Touch that Eyes See, 391 Nature 756, 756 (1998).

 [130]. Id.

 [131]. Kilteni et al., supra note 128, at 4.

 [132]. See generally H. Henrik Ehrsson et al., Threatening a Rubber Hand that You Feel Is Yours Elicits a Cortical Anxiety Response, 104 Proc. Nat’l Acad. Sci. U.S. 9828 (2007).

 [133]. See, e.g., Kilteni et al., supra note 128, at 3.

 [134]. Id. at 5, 8.

 [135]. Id. at 8.

 [136]. See id. at 11–12.

 [137]. Maria V. Sanchez-Vives et al., Virtual Hand Illusion Induced by Visuomotor Correlations, PLoS ONE, Apr. 2010, at 1, 3,

 [138]. Id.

 [139]. Id. at 5 (“[I]n spite of the fact that they saw the virtual hand move, did not feel their hand move, nor move it, they still blindly pointed towards the virtual hand when asked to point where they felt their hand to be.”).

 [140]. Id. at 2.

 [141]. See, e.g., Kilteni et al., supra note 128, at 9.

 [142]. See Elena Kokkinara & Mel Slater, Measuring the Effects Through Time of the Influence of Visuomotor and Visuotactile Synchronous Stimulation on a Virtual Body Ownership Illusion, 43 Perception 43, 56 (2014) (“The results provide evidence that congruent multisensory and sensorimotor feedback between the unseen real and the seen virtual legs can induce sensations that the seen legs are part of the actual body.”).

 [143]. See Konstantina Kilteni et al., Drumming in Immersive Virtual Reality: The Body Shapes the Way We Play, 19 IEEE Transactions on Visualization & Computer Graphics 597, 599, 603 (2013) (“Seeing a virtual body from first person perspective, and receiving spatiotemporally congruent multisensory and sensorimotor feedback with respect to the physical body entails an illusion of ownership over that virtual body.”).

 [144]. See Domna Banakou et al., Illusory Ownership of a Virtual Child Body Causes Overestimation of Object Sizes and Implicit Attitude Changes, 110 Proc. Nat’l Acad. Sci. 12846, 12849 (2013) (“[I]t is possible to generate a subjective illusion of ownership with respect to a virtual body that represents a child and a scaled-down adult of the same size when there is real-time synchronous movement between the real and virtual body.”); see also Tabitha C. Peck et al., Putting Yourself in the Skin of a Black Avatar Reduces Implicit Racial Bias, 22 Consciousness & Cognition 779, 786 (2013) (“IVR can be used to generate an illusion of body ownership through first person perspective of a virtual body that substitutes their own body. . . . [M]ultisensory feedback, such as visuomotor synchrony as used in our experiment, may heighten this illusion.”).

 [145]. See id. at 786 (finding that embodiment of light-skinned people in darker-skinned avatars can lead to comparative reductions in implicit racial bias).

 [146]. Ehrsson et al., supra note 132, at 9830.

 [147]. See Peck et al., supra note 144, at 786.

 [148]. While the following cases are taken from the Pennsylvania and Utah Supreme Courts respectively, the applicable rules of evidence are basically identical to the Federal Rules. See Pa. R. Evid. 403 cmt. (“Pa.R.E. 403 eliminates the word ‘substantially’ to conform the text of the rule more closely to Pennsylvania law.”); see also Pa. R. Evid. 901(a) cmt. (“Pa.R.E. 901(a) is identical to F.R.E. 901(a)”); Utah R. Evid. 901(a), 2011 advisory committee note (noting that the Utah rule is “the federal rule, verbatim.”); Utah R. Evid. 403, 2011 advisory committee note (same). For a general overview and survey of the treatment of computer animations at both the state and federal level, see generally Victoria Webster & Fred E. (Trey) Bourn III, The Use of Computer-Generated Animations and Simulations at Trial, 83 Def. Couns. J. 439 (2016).

 [149]. Commonwealth v. Serge, 896 A.2d 1170, 1176 (Pa. 2006).

 [150]. Id. at 1179–80.

 [151]. Id. at 1175.

 [152]. Id.

 [153]. Id. 1176.

 [154]. Id. at 1187. Notably, the animation was devoid of any “(1) sounds; (2) facial expressions; (3) evocative or even life-like movements; (4) transition between the scenes to suggest a story line or add a subconscious prejudicial effect; or (5) evidence of injury such as blood or other wounds.” Id. at 1183.

 [155]. Id. at 1187.

 [156]. State v. Perea, 322 P.3d 624, 635–36 (Utah 2013).

 [157]. Id. at 632.

 [158]. Id. at 635 (alterations in original).

 [159]. Id. at 635–637. Stating that

[t]he State objected and the district court refused to admit the animations, finding that “there [was] no foundation for the animation[s]” because Mr. Gaskill did not know “who created [them],” “the background of the people who created [them],” “how [they were] created,” or “what [the animators] relied upon in creating [them].”


 [160]. Id. at 637.

 [161]. David S. Santee, More than Words: Rethinking the Role of Modern Demonstrative Evidence, 52 Santa Clara L. Rev. 105, 135 (2012).

 [162]. See id. at 136.

 [163]. See id. at 136, 136 n.180, 140.

 [164]. In thinking about the effect of lighting, one cannot help but remember the first televised Nixon-Kennedy debate in which Richard Nixon refused makeup for the studio camera lighting, instead applying a cheap “coat of [drugstore] Lazy Shave to hide his five o’clock shadow.” Dan Gunderman, The Story of the First TV Presidential Debate Between Nixon and Kennedy—‘My God, They’ve Embalmed Him Before He Even Died’, N.Y. Daily News (Sept. 24, 2016, 4:25 AM),
/politics/story-televised-debate-nixon-jfk-article-1.2803277. The interesting result being that most viewers who listened to the radio felt Nixon had prevailed, but those viewing the televised debate overwhelmingly found favor with Kennedy, who had subtly applied powder. See id.

 [165]. See supra Part III.

 [166]. See Webster & Bourn, supra note 148, at 441–42.

 [167]. John Selbak, Comment, Digital Litigation: The Prejudicial Effects of Computer-Generated Animation in the Courtroom, 9 High Tech. L.J. 337, 366 (1994).

 [168]. See Webster & Bourn, supra note 148, at 441–42.

 [169]. See State v. Perea, 322 P.3d 624, 635–36 (Utah 2013).

 [170]. As previously mentioned, federal courts are advised to rely on jury instructions to attempt to limit prejudice following the Advisory Committee Notes to Rule 403. Fed. R. Evid. 403, advisory committee’s notes to 1972 proposed rules. At the federal level, most jurisdictions rely on jury instructions which essentially include the following:

(1) an admonition that the jury is not to give the animation or simulation more weight just because it comes from a computer; (2) a statement clarifying that the exhibit is based on the supporting witness’s evaluation of the evidence; and, (3) in the case of an animation, a statement that the evidence is not meant to be an exact recreation of the event, but is, instead, a representation of the witness’s testimony.

Webster & Bourn, supra note 148, at 442.

 [171]. Bruton v. United States, 391 U.S. 123, 135 (1968) (“Unless we proceed on the basis that the jury will follow the court’s instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense.” (citation omitted)). But see Krulewitch v. United States, 336 U.S. 440, 453 (1949) (Jackson, J., concurring) (“The naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction.”).

 [172]. Bruton, 391 U.S. at 135.

 [173]. Joel D. Lieberman & Jamie Arndt, Understanding the Limits of Limiting Instructions, 6 Psychol., Pub. Pol’y & L. 677, 686 (2000).

 [174]. See State v. Swinton, 847 A.2d 921, 945–46 (Conn. 2004).

 [175]. Id. at 937.

 [176]. Id. at 946.

 [177]. Id. at 938 (emphasis omitted).

 [178]. Id. at 942 (citation omitted).

 [179]. Id. at 942–43. These procedural factors included:

(1) the underlying information itself; (2) entering the information into the computer; (3) the computer hardware; (4) the computer software (the programs or instructions that tell the computer what to do); (5) the execution of the instructions, which transforms the information in some way—for example, by calculating numbers, sorting names, or storing information and retrieving it later; (6) the output (the information as produced by the computer in a useful form, such as a printout of tax return information, a transcript of a recorded conversation, or an animated graphics simulation); (7) the security system that is used to control access to the computer; and (8) user errors, which may arise at any stage.

Id. (citation omitted).

 [180]. See Fed. R. Evid. 702.

 [181]. Therefore, avoiding a situation like in Perea, where the witness cannot speak to the design of the accompanying computer-generated exhibit beyond asserting that it is a fair and accurate depiction of their testimony. See State v. Perea, 322 P.3d 624, 637 (Utah 2013).

 [182]. See Cummings & Bailenson, supra note 34, at 273.

 [183]. See Mel Slater & Anthony Steed, A Virtual Presence Counter, 9 Presence: Teleoperators & Virtual Environments 413, 426 (2000) (measuring the occurrence of user breaks in presence (“BIPs”) using an HMD); see also Sanchez-Vives et al., supra note 137, at 5; Kokkinara & Slater, supra note 142, at 56 finding that:

[T]he analysis of breaks suggest that asynchronous [visuotacticle] may be discounted when synchronous [visuomotor] cues are provided. . . . [W]e can predict a high or low estimated probability of the illusion solely from knowing which [visuomotor] group (synchronous or asynchronous) the person was in . . . asynchronous [visuotacticle] stimulation combined with asynchronous [visuomotor] stimulation is shown to be incompatible with the illusion.

Kokkinara & Slater, supra note 142, at 56.

 [184]. For a further explanation of BIPs, see generally Maria V. Sanchez-Vives & Mel Slater, From Presence to Consciousness Through Virtual Reality, 6 Nature Reviews Neuroscience 332 (2005).

 [185]. Take, for example, when a person is deeply engrossed in watching a movie:

Every so often . . . some real world event, or some event within the movie itself, will occur that will throw you out of this state of absorption and back to the real world of the theatre: someone nearby unwraps a sweet wrapper, someone coughs, some aspect of the storyline becomes especially ridiculous, and so on.

Slater & Steed, supra note 183, at 419.

 [186]. See Fed. R. Evid. 611(a), advisory committee’s notes to proposed rule (describing the broad powers of the judge to regulate demonstrative evidence).

 [187]. See, e.g., Sanchez-Vives et al., supra note 137, at 2.

 [188]. Id. at 3.

 [189]. See Ye Yuan & Anthony Steed, Is the Rubber Hand Illusion Induced by Immersive Virtual Reality?, in 2010 IEEE Virtual Reality Conference 95, 101 (2010) (“[T]he IVR arm ownership illusion appears to exist when the virtual arm roughly appears in shape and animation like the participant’s own arm, but not when there is a virtual arrow.”).

 [190]. See Mueller & Kirkpatrick, supra note 75.

 [191]. People v. McHugh, 476 N.Y.S.2d 721, 722 (Sup. Ct. 1984).



Eyewitness Identifications: Recommendations to the Third Circuit – Note by Brady Witbeck

From Volume 91, Number 3 (March 2018)


Eyewitness Identifications: RecoMmendations to the Third Circuit

Brady Witbeck[*]


Just before two o’clock in the afternoon on October 22, 1991, two high school students, Chedell Williams and Zahra Howard, ascended the steps of the Fern Rock train station in North Philadelphia, planning to take a train back to their homes.[1] Seemingly out of nowhere, two men appeared, blocked the girls way up to the station, and demanded Chedells earrings. Terrified, the girls bolted in opposite directions. The two men followed Chedell. They soon caught her and tore out her earrings. Then “[o]ne of the men grabbed her, held a silver handgun to her neck, and shot her.”[2] The perpetrators fled. Chedell was pronounced dead within the hour.[3]

Police soon focused their investigation on James Dennis, who lived relatively close to the train station in the Abbotsford Homes projects. Detectives would later explain that they heard rumors that Dennis was involved in the shooting, though they were at that time “unable to identify the source of the rumors.”[4] The detectives obtained preliminary descriptions of the perpetrators from three eyewitnesses.[5] These initial descriptions did not align well with Dennis’s actual appearance. Nonetheless, a few eyewitnesses identified Dennis during subsequent photo lineups, live lineups, and the trial.[6] In presenting the government’s case, the prosecution relied heavily on these eyewitness identifications.[7] Dennis was found guilty of “first-degree murder, robbery, carrying a firearm without a license, criminal conspiracy, and possession of an instrument of a crime.”[8] He was sentenced to death.

Then, after spending twentyfour years challenging his conviction, Dennis was granted a conditional writ of habeas corpus.[9] In Dennis v. Secretary, Pennsylvania Department of Corrections, the Third Circuit Court of Appeals found that prosecutors had improperly withheld evidence that bolstered Dennis’s alibi and implicated another man in Chedell’s death.[10]

Dennis is most notable not for unearthing aberrant prosecutorial misconduct, but for Chief Judge Theodore McKee’s lengthy concurrence, which illuminated endemic failures by courts and police departments to understand and mitigate the unreliability of eyewitness identification evidence.[11] Shortly after issuing its decision in Dennis, the Third Circuit formed a task force instructed to “make recommendations regarding jury instructions, use of expert testimony, and other procedures and policies intended to promote reliable practices for eyewitness identification and to effectively deter unnecessarily suggestive identification procedures, which raise the risk of a wrongful conviction.”[12] The Task Force will rely on scientific research and is co-chaired by Chief Judge McKee.[13] By establishing this Task Force, the Third Circuit recognized that not only is there a problem with the way the criminal justice system deals with eyewitness identification evidence, but also that unreliable identifications correspond to false convictions. Chief Judge McKee’s concurrence in Dennis and the commissioning of the Task Force demonstrate that the legal system is opening up to implementing scientifically proven methods to lessen the problem of false identifications and convictions.[14]

This Note will concentrate on how system variables impact the reliability of eyewitness identifications.[15] System variables are the procedures and practices law enforcement use to elicit eyewitness identifications.”[16] Because system variables are generally within the exclusive control of law enforcement, they present the most straightforward method through which the criminal justice system can make eyewitness identifications reliable, thus decreasing the risk of false convictions. This Note will focus on how the criminal justice system can improve the eyewitness identification process. In particular, this Note evaluates suggested reforms for photo arrays, live lineups, and jury instructions.

This Note will present simple, scientifically proven approaches to reform that will lead to a more just system and more accurate identifications and convictions. The Third Circuit Task Force should adopt recommended methods found in the volumes of psychological research written on eyewitness identification and analyzed in detail in this Note. Through a combination of legislative and judicial action, the system can be dramatically improved with minimal cost and inconvenience. Part I of this Note will examine Dennis in-depth and demonstrate how failures on the part of the criminal justice system led to false identifications and Dennis’s conviction. Part II will analyze the scientific research concerning system variables as well as the intersection of science and the criminal justice system. Part III will discuss current procedures for photo arrays, live lineups, and jury instructions, and their deficiencies. Part IV will discuss how different states have tried to solve these problems. Part V will make recommendations to the Third Circuit Task Force.

I.  DENNIS V. SECRETARY, Pennsylvania Department of Corrections

As Chief Judge McKee examined the data and scientific research on eyewitness identifications, he came to the conclusion that cases like Dennis are not mere anomalies; instead, they are serious miscarriages of justice that occur too frequently and should be rectified by the judiciary.[17] Even when multiple eyewitnesses identify a person, those identifications can be unreliable and “[a]lmost without exception, eyewitnesses who identify the wrong person express complete confidence that they chose the real perpetrators.[18] Even though three people identified the defendant as the perpetrator in Dennis, the way those identifications were obtained raised “serious questions about the accuracy of those identifications.”[19] Perhaps most troubling, the jury had no way of knowing the unreliable nature of the identifications, and as a result, an innocent man spent more than twenty years on death row.[20]

On the day Chedell Williams was murdered, the police obtained initial reports from eyewitnesses to the crime.[21] Five eyewitnesses claimed they could identify the shooter.[22] These five eyewitnesses were at varying distances from the shooter when the crime took place. The eyewitnesses said the shooter wore a red sweat suit and wielded either a dull silver gun or a shiny, chrome-plated gun. One of the key eyewitnesses told police that he “would be able to identify the shooter if he saw him again,” as he was only “about six feet from the perpetrators” and looked directly at the shooter as the shooter ran away.[23]

After the police heard rumors that the shooter was Dennis, they arranged for several eyewitnesses to see if they could identify Dennis as the shooter by placing his picture in a photo array.[24] The police “compiled three arrays of eight photographs each.”[25] The first array was used to identify the shooter, the second to identify the accomplice, and the third to give the eyewitnesses an opportunity to identify a suspect. Police composed the photo arrays with pictures of seven innocent fillers and a recently taken photo of Dennis. They then individually showed the photo arrays to each eyewitness and instructed each witness to “[s]ee if you recognize anyone.”[26] Four of the nine eyewitnesses stated that Dennis looked familiar, but no eyewitness expressed a high degree of confidence in their identification at the time of the photo array.[27] Following at least two of these uncertain identifications, the photo array administrator asked the eyewitnesses if they were confident in their identifications; when responding to this question, two eyewitnesses reported greater confidence in their identifications.[28] The remaining five eyewitnesses were not able to identify the shooter with any degree of certainty.[29]

Around a month and a half later, police conducted a live lineup, which included six persons: Dennis and five fillers.[30] Only the four eyewitnesses that identified Dennis in the prior photo arrays were present at this live lineup,  and [t]he police had those four witnesses view the lineup at the same time, in the same room.[31] The police gave instructions to each eyewitness to carefully look at all of the lineup participants to see if they recognized any one of them as the suspect, and they also instructed that none of the eyewitnesses had to make an identification if they could not recognize the suspect in the lineup.[32] Two of the eyewitnesses somewhat confidently pointed out Dennis, one eyewitness was less sure, and one—the eyewitness who initially claimed that he was so close to the perpetrator that he could easily make an identification—identified a filler.[33] Later at the trial, the prosecution put three eyewitnesses on the stand, all of whom confidently pointed at Dennis, “even though all three had expressed doubt in their earlier identifications.”[34]


The debate about what role science should play in eyewitness identification evidence is not new. In 1908, Hugo Münsterberg, a pioneering psychologist, published On the Witness Stand.[35] In it, Münsterberg profiles different judicial and police practices and analyzes them to see how the judicial system could improve with respect to eyewitness testimony.[36] To illustrate the need to incorporate science into the criminal justice system, he detailed an experience that occurred after his family home was burglarized.[37] As an eyewitness at the burglary trial, he recounted various details about the robbery.[38] But after comparing his testimony to the crime-scene evidence, Münsterberg realized there were significant errors in his testimony and that, despite his best intentions, some of his memories were distorted.[39] He emphasized that human memory is inherently faulty and that perhaps the greatest impediment to justice is not intentional lies on the part of the eyewitness but the unintentional failings of memory.[40] Finally, he spoke to the issue of how the judicial system has failed to put into practice the scientific research of the time.[41]

Münsterberg was repudiated by John Wigmore for what Wigmore viewed as an uncouth attack on the legal profession, an attack that was not justified by the scientific research Münsterberg touted.[42] Wigmore viewed Münsterberg as a popular scientist—someone more interested in fame than properly integrating science and the law.[43] While Wigmore criticized Münsterberg, he himself was a strong proponent of the use of psychology in the legal profession.[44] This debate, which took place over a century ago, demonstrates that even among those who believe science should play a greater role in evidence, it is difficult to achieve a consensus on the specifics.

Today, there are some in the legal profession who believe few or no reforms are necessary to bring science and evidence together. For example, Justice Antonin Scalia, in his concurrence in Kansas v. Marsh, rejected the idea that the way the justice system handles eyewitness identifications is deeply flawed.[45] He wrote his Marsh concurrence primarily as a response to Justice Souter’s dissent, in which Souter acknowledged the primary risk of capital punishment: that the defendant is innocent.[46] Scalia claimed that because Souter did not list an instance when an innocent person was put to death, this risk is overstated.[47] Scalia went further, claiming that DNA evidence has confirmed guilt more often than it has proved the innocence of convicted persons.[48] He also claimed that the recent reversals of false convictions are not the result of “the operation of some outside force to correct the mistakes of our legal system, rather than as a consequence of the functioning of our legal system.”[49] Scalia stated that capital cases are actually given heightened judicial scrutiny, which leads to better and more accurate results, as the appeals process can be very lengthy in these cases.[50] Scalia echoed the claims of many who say that while the system may be imperfect, it still functions at a high rate of accuracy and needs minimal reform, if any.[51]

Scalia’s assessment contrasted with that of Chief Judge McKee in Dennis, in which McKee tied together the best psychological research on eyewitness identifications and recognized that the criminal justice system must improve in order to be more accurate.[52] McKee began by quoting Justice Brennan, who had stated over three decades prior that juries are likely to believe eyewitness testimony over other types of evidence, especially when the eyewitness is confident.[53] “James Dennis was sentenced to death because three eyewitnesses appeared at trial and confidently pointed their fingers at him when asked if they saw Chedell Williams’ killer in the courtroom.”[54] Because the jury was not properly instructed as to how to handle eyewitness identifications by the court and the police department was not properly trained, an innocent man was sentenced to death.[55] His purpose in writing his lengthy and thoughtful concurrence was to push the law to catch up with the science and persuade both police departments and juries to reform.[56] Reform is critical as mistaken identifications “‘erode public confidence in the criminal justice system as a whole.’”[57]

The Supreme Court itself recognized the problems inherent in eyewitness identifications in United States v. Wade.[58] In Wade, the Court declared that “the vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.”[59] The Court cited “the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification” as a major factor contributing to misidentification.[60] The Court’s opinion recognized the danger that once an eyewitness has identified someone during a lineup, that eyewitness’s confidence in that identification can be artificially inflated. Improper suggestions and poor lineup construction during the lineup process can taint an entire trial.[61]


In the United States, eyewitnesses identify some 77,000 suspects annually.[62] Often, juries place great weight on eyewitness identifications and, accordingly, the identifications provide powerful evidence against a defendant.[63] Despite the importance of eyewitnesses, their accounts are generally less accurate than most people—including judges, jurors, and attorneys—would assume.[64]

In one study, 590 participants were tested to determine if, after having spoken to a woman for fifteen seconds, they could later identify that same woman.[65] During a live lineup where the woman was present, only forty-nine percent of the participants were able to correctly identify the woman.[66] While 62% of participants correctly refrained from making an identification when the target was absent from the lineup, the remaining thirty-eight percent of participants made an identification.[67]

Police departments generally use three types of methods to obtain identifications from eyewitnesses: showups, photo arrays, and live lineups.[68] But how police departments administer these three methods varies greatly and lacks uniformity across jurisdictions.[69] With thousands of police departments and courts, it is difficult to obtain a clear picture of how different jurisdictions obtain eyewitness identifications.[70] Many police departments have no standing procedures or policies, and many police officers are not aware of how system variables, which police control, can influence the reliability of this type of evidence.[71]

This Section describes how photo arrays, live lineups, and jury instructions function and how these processes often fall short of their objective to obtain reliable identifications. Showups, ad hoc procedures where law enforcement officers bring eyewitnesses to a location to show them a suspect, will not be discussed at length.[72]

A.  Photo Arrays and Live Lineups Defined

Photo arrays and live lineups constitute important ways in which police can obtain eyewitness identifications.[73] Police regularly use both photo arrays and live lineups in their investigative efforts.[74] Though live lineups are generally considered more accurate than photo arrays, they are conducted less frequently.[75] In most photo arrays, the eyewitness is presented with a number of photographs and instructed to identify the photo of the person who the eyewitness believes committed the crime.[76] A defendant does not have the right to have an attorney present during a photo array.

Like photo arrays, live lineups are used by police either to determine or confirm the identity of a suspect.[77] In a live lineup, an eyewitness is presented with a number of people and asked to identify the person the witness believes to be the suspect.[78] Live lineups can occur either before or after an indictment.[79] Most live lineups in the United States contain around five participants.[80] Eyewitnesses either view the lineup participants sequentially or simultaneously.[81] Sequential lineups compel the eyewitness to make an absolute judgment of identity, while simultaneous lineups allow the eyewitness to make a relative judgment of identity.[82]

In a sequential lineup the eyewitness views the suspect and fillers one at a time. . . . In the original sequential lineup for each person (i.e., the suspect and fillers) the eyewitness either identifies the person as the culprit or not. If the eyewitness makes an identification the procedure ends. If no identification is made then the next person is shown to the eyewitness.[83]

In a simultaneous lineup, the eyewitness is presented with all the lineup participants at one time.[84]

B.  System Variables and Accuracy

As Chief Justice McKee stated in Dennis, system variables are within the control of law enforcement.[85] Because police departments control the practices and procedures used to acquire eyewitness identifications, the Third Circuit Task Force (“Task Force”) should examine the scientific research concerning the accuracy of those procedures. Studies have identified simple, cost-effective ways to adjust system variables to improve the reliability of eyewitness identification evidence.

Though photo arrays and live lineups are most accurate when administered blindly—that is, when the person administering the lineup does not know the identity of the suspect—very few police departments conduct blind lineups and arrays.[86] In an experiment, students were randomly assigned to play the role of either a lineup administrator or a mock eyewitness.[87] The mock eyewitnesses were shown a video of a theft in which they were exposed to the perpetrator’s face for twenty-five seconds.[88] One group, who was assigned the role of lineup administrator, was told the identity of the suspect, while the other group was not.[89] The researchers found that the non-blind administrators often smiled when the mock eyewitness viewed the suspect in the photo array and smiled after the eyewitness identified the suspect.[90] The non-blind photo arrays resulted in significantly more false identifications than the photo arrays that were administered blind.[91] The researchers also found that the non-blind administrators affected eyewitnesses’ confidence in their selections.[92]

Feedback from a non-blind administrator can manipulate eyewitnesses’ confidence in their identifications.[93] This is even true when the eyewitness mistakenly identifies the wrong person; feedback confirming an eyewitness’s mistaken identification impairs the eyewitness’s memory of the original perpetrator.[94] When an administrator makes statements like “[w]e thought this might be the one,” [t]hat’s the one you picked out in the photo,” or even more subtle, non-verbal communications, eyewitnesses’ confidence can increase and their ability to recognize the actual suspect can decrease.[95] “Relative to a no feedback condition, witnesses who received good-memory feedback expressed higher post-identification confidence in a subsequent lineup identification, whereas those who received poor-memory feedback evinced lower confidence.”[96]

Jurisdictions, as well as experts, disagree as to the advantages of using sequential lineups instead of simultaneous lineups. Some jurisdictions have reformed their procedures in order to have eyewitnesses make absolute judgments of identity, while others have cited evidence that claims relative judgments of identity are more reliable.[97] A study that purports to go against the grain of recent evidence—in that it supports simultaneous lineups—found that eyewitness identifications based on relative judgments are less reliable than those based on absolute judgments.[98][A] witness using an absolute judgment makes an identification of a lineup member if the match between that lineup member and the witness’s memory of the perpetrator is sufficiently high,” while a relative judgment can be made when the match is relatively better than any other member of the lineup.[99] The study also found that “witnesses’ reliance on relative judgments undermines the reliability of the identification evidence, and increases the relative risk of a false identification that can ultimately lead to a wrongful conviction.”[100] Despite this recent study, the scientific community is still somewhat divided on this issue, with some studies claiming that there is little difference in reliability between the two approaches.[101]

Lineup instructions given to eyewitnesses before they make identifications impact the reliability of any identification that follows.[102] Biased instructions occur when the lineup administrator fails to explicitly instruct the eyewitness that the perpetrator may not be present in the lineup and that it is permissible to identify no one.”[103] In some instances, biased instructions “compel[] witnesses to adopt a lower criterion for accepting their sense of recognition of the most familiar-looking lineup member as correct . . . and thereby enhances their confidence in making a positive identification of that lineup member,” and can also artificially increase eyewitnesses confidence in their identifications because they may assume the suspect is in the lineup.[104] In one study, participants viewed a video of a mock theft and were instructed to identify a suspect from both a thief-present and thief-absent live lineup.[105] One group was given biased instructions before they attempted to make an identification, while the other group was not. The mock eyewitnesses’ confidence was then measured. The results found that “[b]iased instructions and positive feedback increased confidence and ratings of eyewitnessing conditions.”[106] The study also found that eyewitnesses’ confidence in their identifications only modestly relates to the accuracy of those identifications.[107]

C.  Jury Instructions

Jury instructions that provide the jury with information on how to use eyewitness identifications could improve a jury’s evaluation of eyewitness evidence, thus improving the deliberation process. Instructions can inform the jury how memory works, how an identification was obtained, and dismiss the myth of the infallibility of the identification process.[108] Jury instructions regarding eyewitness identifications and their use in trials typically contain some qualifications about their accuracy, but these instructions are often generic and do not properly convey scientific realities.[109] Some experts claim that most current jury instructions do not increase a jury’s sensitivity to possible errors in eyewitness testimony.[110] This is because jurors weigh eyewitness evidence too heavily and because they are “often uncritical of the reliability of the testimony.”[111]

For example, the instructions received by the jury in Dennis were “plain vanilla” and unhelpful.[112] The instructions were long, confusing, and did not include any “explanation of the relevant system or estimator variables that so crucially impact the reliability of witness identifications.”[113] Jurors are often not aware, or at least do not receive instructions from the court, of possible inaccuracies of eyewitness testimony generally and of eyewitness identifications specifically.[114] Studies have shown that jurors do not understand how memory functions or how memory can be influenced and manipulated.[115] Juries have limited knowledge about memory and rely on eyewitness confidence, an eyewitness’s memory for minor details, and the consistency of an eyewitness’s testimony, while ignoring the impact system variables have on the reliability of eyewitness identifications.[116] The myth that people can never forget a face or that an encounter with an armed suspect increases or enhances one’s ability to identify a suspect can lead to a jury overvaluing an identification during its deliberations.[117]


In the past decade, a few jurisdictions have reformed procedures with the goal of improving the reliability of eyewitness identification evidence. This Section will discuss three states in particular: New Jersey, Oregon, and North Carolina. These jurisdictions used scientific research to improve how police departments obtain identifications and to ensure that courts only admit into evidence eyewitness identifications that have indicia of truth and reliability. New Jersey and Oregon addressed eyewitness identification procedures through their respective Supreme Courts.[118] North Carolina’s legislature instituted reforms statutorily.[119] In addition to analyzing the reforms adopted by these states, this Section will evaluate proposals from experts in the fields of law and psychology who have proposed procedures and practices to increase the reliability of eyewitness identification evidence.

A.  New Jersey

Recently, the Supreme Court of New Jersey attempted to improve the reliability of eyewitness identification evidence with its decision in State v. Henderson.[120] The court overhauled its test for the admission of eyewitness identification evidence.[121] The decision called for blind administration of photo arrays and live lineups, new pre-lineup instructions, the creation of rules for lineup construction, and new record keeping procedures.[122] The court also determined that jury instructions needed to improve in order to better equip juries in their process of deliberation.[123]

In Henderson, an eyewitness to a crime was shown a photo array that included eight photographs—one of the suspect and seven of innocent fillers.[124] Before the photo array was administered, the eyewitness was given instructions that were standard in New Jersey police departments.[125] He was informed that an administrator would show him photos sequentially and the perpetrator’s photo was not necessarily included in the array.[126] The eyewitness also was instructed that the suspect could have either gained or lost weight since the incident and that facial hair could easily be altered.[127] The photos were shown to the eyewitness in an order that was random to the administrator.[128] During the photo array, the eyewitness narrowed the photos down to two, but he could not make a clear identification.[129] Police later testified that during this point in the photo array, the eyewitness was excited, so police removed him from the room, calmed him down for one to five minutes, and then showed him the eight photos again.[130] Police claimed that the eyewitness was then quickly and confidently able to identify the police suspect. The eyewitness later testified that he felt pressured to make an identification and that police pushed him to identify the suspect.[131]

The jury instructions provided at trial did not inform the jury about the influence suggestive police behavior can have on the reliability of identifications.[132] The instructions were long, confusing, and included scientific language most likely unfamiliar to jurors, and to determine whether the identification was reliable, the instructions asked jurors to consider a number of competing and seemingly contradictory factors.[133]

To improve the reliability of eyewitness identifications, the New Jersey Supreme Court addressed system variables within the control of the criminal justice system that it believed would best improve the reliability of identification evidence.[134] The court determined that because even subtle, non-intentional suggestions by police during the identification process can influence memory, photo arrays and live lineups should be administered blindly.[135] Because police departments have limited resources, the court suggested that departments could use the “envelope method” for the administration of photo arrays.[136] With the envelope method, “an officer who knows the suspect’s identity places single lineup photographs into different envelopes, shuffles them, and presents them to the witness. The officer/administrator then refrains from looking at the envelopes or pictures while the witness makes an identification.”[137] This method would decrease the likelihood of improper suggestion by the police.[138]

The court ordered that before administering a photo array or a live lineup, New Jersey police must always instruct the eyewitness that the person who committed the crime may or may not be present and that the eyewitness should not feel pressure to make an identification.[139] In order to decrease the possibility of an eyewitness simply guessing the identity of the suspect, every lineup should be composed of fillers who look similar to the suspect, so the suspect does not stand out.[140] This is so an eyewitness’s confidence is not artificially inflated by a perception that the identification process was “easy.”[141] There should be at least five fillers in a live lineup, and lineups should not feature more than one suspect.[142] The court also reminded police departments that all lineups should be recorded and preserved so that courts can later determine if the lineup was properly constructed.[143]

In order to avoid improper feedback from police that could inflate eyewitnesses’ confidence in their identification, the court held that “law enforcement officers should make a full record—written or otherwise—of the witness’ statement of confidence once an identification is made.”[144] Officers should not allow eyewitnesses to view the suspect multiple times, as this can artificially increase confidence in their identification.[145] The New Jersey Supreme Court took no position on whether police departments should favor sequential or simultaneous lineups.[146] The court believed that there was insufficient scientific evidence to show a preference for either and that more studies needed to be conducted before the court could state a preference.[147]

To better help jurors understand the eyewitness identification process, the court reformed jury instructions.[148] Lay people, on the whole, do not understand how memory works.[149] The court identified the common misconceptions that memory is similar to a video recording and that memory cannot be contaminated or distorted by outside influence.[150] Juries also tend to give disproportionate weight to the confidence of the eyewitness.[151] In order to better equip the jury to evaluate eyewitness identifications, jury instructions need to clearly and comprehensively inform the jury about the science of eyewitness identification and the nature of memory.[152] However, jury instructions should not overwhelm the jury and must be helpful to jurors.

B.  Oregon

In State v. Lawson, the Supreme Court of Oregon overhauled its test for determining the admissibility of eyewitness identifications.[153] In Lawson, the court consolidated two cases, in which the admissibility of eyewitness identification evidence was at issue.[154] Two defendants were separately tried and convicted, at least in part because of eyewitness identifications that “had been subject to an unduly suggestive police procedure in the course of identifying” the defendants.[155]

The test used by Oregon courts during the defendants’ trials to evaluate the admissibility of eyewitness identification evidence was fairly permissive, and it failed in its purpose of preventing suggestive and inaccurate identifications from being admitted into evidence.[156] The test was comprised of generic, unhelpful factors that attempted to make sure the time between the event and the identification was minimized, the certainty of the eyewitness was high, and the eyewitness had a chance to clearly see the suspect before the identification was admitted.[157]

In one of the cases consolidated in Lawson, a victim was shot in the chest and admitted to the hospital, where she was questioned by police as to the identity of her attacker.[158] The victim was shown a black-and-white photo array while heavily medicated, sedated, and restrained in her hospital bed.[159] Moreover, because her injuries necessitated a breathing tube, the victim could only respond to police questioning by nodding or shaking her head. At first, the victim did not identify anyone from the photo array; however, she eventually nodded “yes” to leading questions regarding the suspect’s identity.[160] The victim later had no recollection of this interview.[161]

Approximately two weeks later, when the victim could speak, she said that she was not able to identify the person who shot her; the following month, she was not able to pick the defendant out of another photo array, but shortly thereafter the police informed her that she had identified someone during her stay in the hospital.[162] After hearing this, the victim said she recognized the man police had identified as a suspect; however, she stated that she was not certain he was the perpetrator.[163] At a much later date, and after police repeatedly exposed the victim to the suspect’s photo, the victim identified the suspect at a live lineup and even testified at trial that she “always knew it was him.”[164] Based in part on this evidence, the defendant was convicted.[165] On appeal, the Oregon Supreme Court held that the identification should not have been admitted into evidence as it was subject to suggestive police procedure.[166]

In the case, the Oregon Supreme Court examined scientific research about system variables that the court believed could prevent false or unreliable identifications from being admitted into evidence.[167] Based on their examination of the science, the court mandated judicial and police department reforms.[168] Additionally, the Lawson court shifted the defendant’s burden to prove suggestibility onto the prosecution.[169]

In order to improve the reliability of eyewitness identification evidence, the Oregon Supreme Court found that the criminal justice system needed to improve several system variables, which are in the exclusive control of the justice system.[170] The court called for the blind administration of photo arrays to prevent an administrator from improperly influencing an identification.[171] When police administer photo arrays or live lineups, the administrator should inform eyewitnesses that they do not have to make an identification, as the perpetrator may not be in the lineup or array.[172] The court called for live lineups to be constructed using fillers that look physically similar to the suspect so the suspect does not stand out.[173] Furthermore, live lineups and photo arrays in Oregon must now be conducted sequentially so that the eyewitness makes an absolute judgment of identity instead of a relative judgment.[174]

The fact that the victim in Lawson viewed the suspect multiple times was a major factor in determining the identification was unreliable.[175] When police continually expose a victim to images of one suspect, the victim tends to become more familiar with the suspect’s face; this can result in the victim eventually identifying that suspect with confidence, even if initially the victim was unsure of the perpetrator’s identity. Because police continually exposed the victim to images of the suspect, the victim became more familiar with his face, so much so that the victim could eventually identify him with confidence, even though initially the victim was unsure of the perpetrator’s identity.[176] For this reason, after Lawson, Oregon police are required to avoid multiple viewings when conducting photo arrays and live lineups.[177]

The opinion did not elaborate in-depth about how Oregon courts should craft jury instructions on how to evaluate eyewitness identifications, but the court suggested that future jury charges should include reference to system variables that influence reliability.[178] The court cited an Oregon evidence rule that stated identifications must be helpful to the trier of fact.[179] Therefore, identifications, when admitted, should not serve to confuse the jury but should help the jurors with their fact-finding, thus providing another reason to improve the reliability of eyewitness identifications.[180]

C.  North Carolina

While legislatures lack some of the sophisticated legal experience of the courts, passing laws to regulate police conduct can be an effective way to quickly and authoritatively adjust system variables. North Carolina took this approach with the North Carolina Eyewitness Identification Reform Act (“the Act”).[181] The Act, passed in 2007, attempts to incorporate scientific advances in the field of eyewitness identifications to better assure reliability and bolster the truth finding function of the criminal justice system in North Carolina.[182] To further this goal, it provides instructions for police departments on how to administer identifications according to the best available practices.[183]

The Act calls for independent administrators, who are not aware of the suspect’s identity, to carry out both photo arrays and live lineups.[184] The independent administrator will give instructions that inform the eyewitness that the perpetrator may or may not be in the lineup or photo array, and will also state that the investigation does not hinge on the eyewitness making an identification, so the eyewitness should not feel undue pressure to make one.[185]

Under the Act, both photo arrays and live lineups should contain at least five innocent fillers who resemble the suspect.[186] Lineups and photo arrays with more than one suspect are prohibited, and eyewitnesses are separated from others who are making an identification to prevent them from conferring with one another before or during the live lineup or photo array.[187] Eyewitnesses are not be provided any information about the suspect, and police make a video recording of the process or an audio recording if a video recording is not feasible.[188] The Act also proposes that lineups could be administered by a computer program as an alternative method to keep the administrator from seeing the photo in front of the witness.[189]

In order to facilitate these reforms, law enforcement officers are required to go through training programs so that they know how to conduct lineups and photo arrays in compliance with this statute.[190] The Act calls for the creation of materials and classes to facilitate the training of law enforcement officers.[191] Two preexisting North Carolina police-training agencies, the North Carolina Criminal Justice Education and Training Standards Commission and the North Carolina Sheriffs’ Education and Training Standards Commission, were made responsible for creating these programs and materials.[192]

D.  Scholarly Proposals

Legal scholars have proposed reforms that often go further than the changes made in states like New Jersey, Oregon, and North Carolina. For example, the National Academy of Sciences issued a report addressing the reliability of eyewitness identification evidence.[193] The academy’s goal was to digest the current scientific research on the subject and present it to law enforcement and the legal community, and the academy called for greater cooperation among the law enforcement and scientific communities so that identification procedures can improve across the country.[194] Scholars hope that the training of law enforcement as to how memory works and how law enforcement can unintentionally influence identifications will allow police to see why reform is necessary.[195]

The report made recommendations as to how jurisdictions can improve the reliability of eyewitness testimony.[196] It called for blind administration of lineups, uniform and “easily understood instructions” to be provided to the eyewitness prior to an identification, and careful documentation of eyewitnesses confidence in their identifications.[197] These instructions should inform the eyewitness that “the perpetrator may or may not be in the photo array or lineup and that the criminal investigation will continue regardless of whether the witness selects a suspect.”[198] The report suggested that due to a lack of consensus as to the merits of sequential versus simultaneous lineups, neither method should be preferred.[199]

The academy acknowledged that some police departments are hesitant to make changes that would require them to stretch their limited resources.[200] In response, the committee suggested that “departments consider procedures and new technologies” that would alleviate this concern.[201] For example, if a non-blind administrator is not available, a department could use either a “computer-automated presentation of lineup photos”[202] or the envelope method that is employed in New Jersey.[203] The eyewitness identification process should also be videotaped, even though doing so could increase costs and burden eyewitnesses’ privacy interests.[204] However, when these concerns arise, departments can videotape the process non-intrusively, and in fact, many departments already have the technology that would allow them to document these procedures.[205]

The report called for the “use of clear and concise jury instructions” to assist jurors in their fact-finding mission.[206] Jury instructions can convey the most important underlying aspects of the identification process in clear language.[207] This would allow the jury to properly give weight to eyewitness identification evidence in its deliberations.[208] “Appropriate legal organizations, together with law enforcement, prosecutors, defense counsel, and judges, should convene a body to establish model jury instructions regarding eyewitness identifications.”[209]

Going forward, the academy recommended that a national research initiative be established to increase our understanding of the science of eyewitness identifications.[210] The research initiative would allocate future funds for research, formulate new policy positions, review research, advocate future policy changes, and provide formal assessments of reforms across the country.[211]

Separately, Dan Simon, in his book In Doubt, proposed a series of reforms that could fix the systematic errors inherent in the identification process.[212] He proposed a series of reforms that would “provide best-practice protocols andare directed at the twofold goal of maximizing the accuracy of identifications and the transparency of the procedures used to elicit them.[213] Simon’s reforms include:

2. . . . [L]ive and video lineups should be preferred over photographic arrays.

3. Suspects should not be placed in identification procedures absent an appreciable threshold of guilt.

4. Prior to the lineup, witnesses should not be exposed to any identifying information about the suspect from any source.

5. Lineups should be conducted as soon as possible after the witnessed event.

6. Lineups should include only one suspect and five or more fillers whose innocence is beyond doubt.

7. Fillers should match the witness’s description of the perpetrator and not be noticeably dissimilar from the suspect.

8. The suspect should be allowed to determine his place in the lineup and to change places between lineups.

9. The witness should be instructed that the perpetrator “may or may not be” in the lineup, and that it is appropriate to respond “perpetrator is not present,” and “don’t know.”

10. Targets should be presented sequentially (rather than simultaneously).

11. All identification procedures should be “double blind”: the administrator must be kept unaware of the identity of the suspect; the witness should be informed that the administrator does not know the suspect’s identity.

12. The administrator should refrain from any communication or behavior that could be interpreted as suggestive or revealing of the identity of the suspect.

13. The witness should announce his recognition or nonrecognition, followed immediately by a confidence statement. The witness should not be given any feedback before completing the statement.

14. The time it took the witness to announce recognition should be measured and recorded. . . .

16. Witnesses who at any time pick someone other than the suspect should not be allowed to provide any identification testimony about the suspect.

17. Witness [sic] who fail to identify the suspect, make a hesitant decision, or express low confidence at the initial identification should be deemed to have a weak memory of the suspect.

18. The procedure should be recorded in its entirety, preferably on videotape. Recording should include the images used and the instructions given. The witness should be videotaped throughout the procedure.[214]

Simon also suggests that the composition of lineups be computerized to altogether remove the human error element from the equation.[215]

Simon does recognize that the implementation of most of these ideas is uncontroversial, but also that there is an inherent trade off “between the intended objective of reducing false identifications and the unintended effect of losing correct identifications.”[216] Despite this, Simon argues that these proposed reforms would provide a net gain for the judicial system.[217] Providing a complete record of identification procedures is critical for minimizing “the effects of memory decay, contamination, and any other biases induced by the investigation and pretrial procedures” and providing fact finders and other decision makers with the best possible information for assessing the reliability of the identifications.”[218]


The Third Circuit should borrow the best and most practicable reforms undertaken by North Carolina, New Jersey, and Oregon. These states have taken steps toward integrating scientific research into the judicial system, thus making eyewitness identification evidence more reliable. The Task Force has the opportunity to combine the best ideas of these states to lower the risk of wrongful convictions in the Third Circuit. These reforms can further serve as a model for other jurisdictions to reform their policies and procedures. Though live lineups generally produce more reliable evidence than photo arrays, the Task Force should recommend reforms for both photo arrays and live lineups given the impracticality of having a live lineup for every identification. The Task Force should also address jury instructions.

Because the composition of a lineup can greatly influence the reliability of the resulting identification, the Task Force should provide clear guidelines on how and when lineups should be conducted. Lineups and photo arrays should be conducted close in time to when the crime took place, so the eyewitness is more likely to remember the suspect. In many of the cases discussed above, police conducted lineups months or even a year after an event occurred, which led to decays in memory and ultimately false identifications.

The Task Force should adopt a policy similar to that of North Carolina, which requires that live lineups include at least five fillers.[219] These fillers should be similar in race, height, age, and facial structure to the suspect. Ideally, lineups will be composed by a computer program to ensure similarity among the lineup participants. If the suspect has a unique feature, such as a mole or a tattoo, lineup administrators should select photos of other suspects with the same features or alter the filler photos so that the unique feature is present in all or most of the photographs.[220] Photos of the suspect should not be more than a year old[221] and, whenever possible, should not be photos where the suspect has different facial hair than during the time the incident took place.[222] Lineups should never include more than one suspect.[223] As in New Jersey, all live lineups and photo arrays should be recorded and preserved, so that if the reliability of the identification is brought into question, a court can use the recording to help determine if the identification was reliable.

Whenever possible, photo arrays and live lineups should be administered in isolation, away from third parties who could influence the evidence. Lineup administrators should select quiet, separate areas of police precincts and ensure that the eyewitness is separated from other police officers and other eyewitnesses. The lineup administrator should ensure that the eyewitness does not have any access to case materials, including “information about the case, [and] the progress of the investigation.”[224] Eyewitnesses should not be allowed to see images of the suspect outside of the lineup administration, including wanted posters of the suspect that may be hanging in the police department where the photo array or live lineup is being administered.[225]

The Third Circuit should mandate that police departments administer both photo arrays and live lineups blindly. Blind administration increases the accuracy of eyewitness identifications and lowers the risk of feedback from the lineup administrator.[226] Because police resources are limited, the task force should recommend that even where the photo array administrator is not blind to the suspect’s identity, the police department should follow the envelope method employed in New Jersey. This method will prevent the administrator from seeing the photographs before eyewitnesses make an identification, removing the risk that the administrator could influence the eyewitnesses beforehand.[227] However, because the administrator could provide feedback to the eyewitness post-identification, the envelope method should only be used when a fully blind test is impractical.

The Task Force should recommend that police departments change the way they instruct eyewitnesses prior to administering either a photo array or a live lineup. Because biased instructions lead to false identifications and artificially increased confidence in those identifications, it is critical that police departments give uniform, unbiased instructions to eyewitnesses.[228] Lineup administrators should explicitly state that the suspect may or may not be in the photo array or live lineup and that the entire case does not rely on the eyewitness making an identification. Police should try to ensure that eyewitnesses do not feel pressure to make an identification and that they are aware they can say that they do not know if the suspect is in the lineup. These eyewitness instructions are important because an eyewitness should not assume that the suspect is in the lineup. Furthermore, multiple viewings of the suspect by eyewitnesses should not be allowed, so as not to inflate their confidence in the identification.

Once an eyewitness makes an identification, police should immediately record the level of confidence the eyewitness has in that identification. Although juries often overvalue eyewitness confidence, it can serve a role at trial, especially if the confidence is measured immediately after an identification.[229] Eyewitnesses’ confidence in their identifications can be used as a factor to determine if the evidence is admissible. When an eyewitness identifies a suspect without hesitation and without prompting by the lineup administrator, that identification is more likely to be reliable. The eyewitness should also confirm in writing the identification. This provides an additional failsafe to ensure that the eyewitness was not coerced into making an identification and allows for a statement of confidence to be in writing.

Because the scientific community is split on whether sequential or simultaneous viewing of a lineup results in the most reliable identifications, the Task Force should not state a preference for either.

The Task Force should improve existing jury instructions. If a jury were equipped to properly weigh eyewitness evidence and were aware of how and why some identifications are unreliable, police departments could internally strive to improve system variables knowing that a jury may discard improperly obtained identification evidence. Some jurisdictions use expert testimony to inform the jury about eyewitness identifications; however, this method generally appears unsuccessful.[230] Because current instructions do not assist the jury in properly evaluating eyewitness identifications, new, standard instructions should be implemented.

As in Dennis, the jury instructions in New Jersey prior to judicial reform were confusing and muddled.[231] This led the New Jersey Supreme Court to implement new jury instructions. Because the Third Circuit’s jury instructions are similar to those previously used in New Jersey—in that they are too long and do not explain simply how eyewitness identifications can be inaccurate and unreliablethe Task Force should also implement better jury instructions.[232] Proper instructions give juries a tool to compensate for their limited knowledge of how memory functions. Instructions should encourage a jury to examine various factors to determine not only if police procedure leading up to the identification was proper, but also if the eyewitness’s memory shows indicia of reliability. As in New Jersey, the Task Force should inform juries that they should refrain from assigning undue weight to eyewitness confidence; however, they should also be wary of overwhelming the jury with scientific information.

Finally, the Third Circuit Task Force should recommend a training program for police departments that will help implement these reforms. When implementing its legislative reforms, North Carolina recognized that training was essential to increase the reliability of eyewitness identification evidence.[233] Police officers should be instructed that following these procedures will not necessarily result in fewer convictions, but will help ensure that investigations are conducted in a manner most conducive to truthfinding. The Task Force could appoint a team of experts to travel to conferences and individual police departments to train police on how best to implement the proposed reforms. In order to ensure compliance, the Task Force should require periodic reports from both trial courts and police departments as to how the proposals are being implemented and if any modifications to the reforms are necessary in the future. The Task Force should reconvene in five years to reexamine scientific evidence and suggest any further changes.


The investigative procedures used in Dennis that caused such an unjust outcome are employed in many jurisdictions across the country. The Third Circuit Task Force on Eyewitness Identifications has been presented with the unique opportunity to examine every facet of the eyewitness identification process and recommend changes that will serve to decrease the risk of false convictions. New Jersey, Oregon, and North Carolina, among others, provide a path forward that the Task Force should follow. Through blindly administrated lineups, correct pre-lineup instructions, proper construction of lineups, helpful jury instructions, and other reforms analyzed above, the Third Circuit can serve as an example of how scientific research can be implemented into the justice system to produce both fair and just results.


[*] *. Executive Articles Editor, Southern California Law Review, Volume 91; J.D. Candidate 2018, University of Southern California Gould School of Law; B.A. History 2015, Brigham Young University. I would like to thank Professor Dan Simon and Professor Sam Erman for valuable guidance and feedback on earlier drafts of this note. In addition, I would like to thank the staff and editors of the Southern California Law Review for their excellent work.

 [1]. Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 269 (3d Cir. 2016).

 [2]. Id.

 [3]. Id.

 [4]. Id.

 [5]. Id. at 270.

 [6]. Id. at 270–71.

 [7]. Id.

 [8]. Id. at 275.

 [9]. Id. at 269.

 [10]. Id. at 275, 287.

 [11]. See generally id. at 313–44 (McKee, C.J., concurring).

 [12]. Order Establishing Third Circuit Task Force on Eyewitness Identifications (Sept. 9, 2016),

 [13]. Id.

 [14]. See               Dennis, 834 F.3d at 313 (McKee, C.J., concurring); Order, supra note 12.

 [15]. While there are other factors that contribute to unreliable eyewitness identification evidence, this Note will only focus on system variables.

 [16]. Dennis, 834 F.3d at 321 (McKee, C.J., concurring).

 [17]. Id. at 313–16.

 [18]. Id. at 315.

 [19]. Id.

 [20]. Id. at 316.

 [21]. Id. at 317.

 [22]. Id.

 [23]. Id.

 [24]. Id. at 318. Police never clarified where the rumors originated or why the detectives decided to further investigate the rumors. Id.

 [25]. Id.

 [26]. Id.

 [27]. Id.

 [28]. Id.

 [29]. Id. at 319.

 [30]. Id.

 [31]. Id.

 [32]. Id. at 320.

 [33]. Id.

 [34]. Id.

 [35]. Hugo Münsterberg, On the Witness Stand: Essays on Psychology and Crime (1908).

 [36]. See generally id.

 [37]. Id. at 39–44.

 [38]. Id. at 39.

 [39]. Id. at 39–40.

 [40]. See id. at 40, 67–68.

 [41]. See generally id.

 [42]. See James M. Doyle, Ready for the Psychologists: Learning from Eyewitness Errors, 48 Ct. Rev. 4, 4–5 (2012).

 [43]. See id. at 4.

 [44]. Id.

 [45]. See Kansas v. Marsh, 548 U.S. 163, 182–99 (2006) (Scalia, J., concurring).

 [46]. Id. at 185–86.

 [47]. Id. at 188.

 [48]. Id.

 [49]. Id. at 193.

 [50]. Id. at 198.

 [51]. Id.

 [52]. See generally Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 313–44 (3d Cir. 2016) (McKee, C.J., concurring).

 [53]. Id. at 313.

 [54]. Id.

 [55]. Id.

 [56]. Id.

 [57]. Id. at 316 (quoting Comm. on Sci. Approaches to Understanding and Maximizing the Validity and Reliability of Eyewitness Identificationin Law Enforcement and the Courts et al., Identifying the Culprit: Assessing Eyewitness Identification 22 (2014)).

 [58]. See generally United States v. Wade, 388 U.S. 218 (1967).

 [59]. Id. at 228.

 [60]. Id.

 [61]. Id. at 231–33.

 [62]. Dan Simon, In Doubt: The Psychology of the Criminal Justice Process 50–51 (2012).

 [63]. Id.

 [64]. Id. at 51, 53.

 [65]. A. Daniel Yarmey, Eyewitness Recall and Photo Identification: A Field Experiment, 10 Psychol. Crime & L. 53, 53 (2004).

 [66]. Id.

 [67]. Id.

 [68]. Simon, supra note 62, at 51.

 [69]. Id.

 [70]. Id.

 [71]. Id. at 76.

 [72]. For an in-depth discussion of show-up procedures, see id. at 70–71, 77–78.

 [73]. Id. at 51–52.

 [74]. Id. at 52.

 [75]. Id. at 69.

 [76]. Id. at 51–52.

 [77]. Id. at 70.

 [78]. Id.

 [79]. Id. at 81.

 [80]. Id. at 72.

 [81]. Id. at 71.

 [82]. Id.

 [83]. Daniel B. Wright, The Impact of Eyewitness Identifications from Simultaneous & Sequential Lineups, 15 Memory 746, 748 (2007).

 [84]. Simon, supra note 62, at 71.

 [85]. Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 321 (3d Cir. 2016) (McKee, C.J., concurring).

 [86]. Steve D. Charman & Vanessa Quiroz, Blind Sequential Lineup Administration Reduces Both False Identifications and Confidence in Those False Identifications, 40 Law & Hum. Behav. 477, 477, 483–84 (2016).

 [87]. Id. at 477.

 [88]. Id. at 480.

 [89]. Id. at 477.

 [90]. Id.

 [91]. Id.

 [92]. Id. at 484.

 [93]. Laura Smalarz & Gary L. Wells, Confirming Feedback Following a Mistaken Identification Impairs Memory for the Culprit, 38 Law & Hum. Behav. 283, 283 (2014).

 [94]. Id.

 [95]. Id.

 [96]. Michael R. Leippe, Donna Eisenstadt & Shannon M. Rauch, Cueing Confidence in Eyewitness Identifications: Influence of Biased Lineup Instructions and Pre-Identification Memory Feedback Under Varying Lineup Conditions, 33 Law & Hum. Behav. 194, 197 (2009).

 [97]. See infra Part IV (discussing how various jurisdictions have either adopted or rejected this reform).

 [98]. Steven E. Clark, Michael A. Erickson & Jesse Breneman, Probative Value of Absolute and Relative Judgments in Eyewitness Identification, 35 Law & Hum. Behav. 364, 364 (2011).

 [99]. Id.

 [100]. Id. at 377.

 [101]. See, e.g., Comm. on Sci. Approaches to Understanding & Maximizing the Validity & Reliability of Eyewitness Identificationin Law Enf’t & the Courts et al., Identifying the Culprit: Assessing Eyewitness Identification 104 (2015) [hereinafter Comm. on Sci.].

 [102]. Leippe, supra note 96, at 196, 204.

 [103]. Id. at 196.

 [104]. Id.

 [105]. Id. at 194.

 [106]. Id.

 [107]. Id.

 [108]. See Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 341–44 (3d Cir. 2016) (McKee, C.J., concurring).

 [109]. Id. at 342.

 [110]. See, e.g., Richard A. Wise et al., An Examination of the Causes and Solutions to Eyewitness Error, Frontiers Psychiatry, Aug. 14, 2014, at 1, 4.

 [111]. Wright, supra note 83, at 747.

 [112]. Dennis, 834 F.3d at 342 (McKee, C.J., concurring).

 [113]. Id.

 [114]. Id.

 [115]. See generally Wise, supra note 110.

 [116]. Id. at 1–2.

 [117]. Dennis, 834 F.3d at 342–43 (McKee, C.J., concurring).

 [118]. See generally State v. Lawson, 291 P.3d 673 (Or. 2012); State v. Henderson, 27 A.3d 872 (N.J. 2011).

 [119]. N.C. Gen. Stat. § 15A-284.50–.53 (2015).

 [120]. See Henderson, 27 A.3d at 896–903.

 [121]. See id.

 [122]. Id. at 896–900.

 [123]. Id. at 878.

 [124]. Id. at 880–81.

 [125]. Id.

 [126]. Id.

 [127]. Id. at 881.

 [128]. Id.

 [129]. Id.

 [130]. Id.

 [131]. Id.

 [132]. See id. at 882–83.

 [133]. Id.

 [134]. See id. at 892, 896.

 [135]. Id. at 896–97.

 [136]. Id. at 897.

 [137]. Id.

 [138]. Id.

 [139]. Id.

 [140]. Id. at 897–98.

 [141]. Id. at 898.

 [142]. Id.

 [143]. Id.

 [144]. Id. at 900.

 [145]. Id. at 900–01.

 [146]. Id. at 901–02.

 [147]. Id.

 [148]. Id. at 910–11.

 [149]. Id. at 910.

 [150]. Id. at 894–95.

 [151]. Id. at 910–11.

 [152]. See id. at 910–11, 924–25.

 [153]. See State v. Lawson, 291 P.3d 673, 688 (Or. 2012).

 [154]. Id. at 678.

 [155]. Id.

 [156]. Id. at 683–84, 688–89.

 [157]. Id. at 683–84.

 [158]. Id. at 678–79.

 [159]. Id. at 679.

 [160]. Id.

 [161]. Id.

 [162]. Id.

 [163]. Id. at 679–80.

 [164]. Id. at 680.

 [165]. Id.

 [166]. Id. at 698.

 [167]. Id. at 685–88.

 [168]. Id. at 698.

 [169]. Id. at 693–94.

 [170]. Id. at 685.

 [171]. Id. at 686.

 [172]. Id.

 [173]. Id.

 [174]. Id.

 [175]. See id. at 698.

 [176]. Id. at 686–87.

 [177]. Id.

 [178]. Id. at 688.

 [179]. Id. at 693–94.

 [180]. Id.

 [181]. N.C. Gen. Stat. § 15A-284.50–.53 (2015).

 [182]. See id. § 15A-284.51–.52.

 [183]. Id. § 15A-284.52.

 [184]. Id. § 15A-284.52(b).

 [185]. Id.

 [186]. Id.

 [187]. Id.

 [188]. Id.

 [189]. Id. § 15A-284.52(c).

 [190]. Id. § 15A-284.53.

 [191]. Id.

 [192]. Id.

 [193]. See generally Comm. on Sci., supra note 101.

 [194]. See id. at xiii–xiv.

 [195]. Id. at 106.

 [196]. Id. at 105–12.

 [197]. Id. at 104.

 [198]. Id. at 107.

 [199]. Id. at 104.

 [200]. Id. at 106–07.

 [201]. Id. at 106.

 [202]. Id. at 107.

 [203]. Id. See also State v. Henderson, 27 A.3d 872, 897–99 (N.J. 2011).

 [204]. Comm. on Sci., supra note 101, at 109.

 [205]. See id.

 [206]. Id. at 112.

 [207]. See id.

 [208]. Id.

 [209]. Id.

 [210]. Id. at 113–14.

 [211]. Id.

 [212]. See generally Simon, supra note 62.

 [213]. Id. at 82–83.

 [214]. Id. at 83–84.

 [215]. Id. at 86–87.

 [216]. Id. at 84.

 [217]. See id at 84–86.

 [218]. Id. at 85.

 [219]. N.C. Gen. Stat. § 15A-284.52 (2015).

 [220]. Memorandum from Deputy Att’y Gen. Sally Q. Yates to Heads of Dep’t Law Enf’t Components All Dep’t Prosecutors (Jan. 6, 2017) (on file with author) [hereinafter Yates].

 [221]. Although Yates’s memo recommends against using a photograph that is “several years old,” the routine use of photographs that are no more than one year old would be ideal to increase the probability of accurate identifications. See id.

 [222]. Id.

 [223]. Simon, supra note 62, at 83.

 [224]. Yates, supra note 220.

 [225]. Id.

 [226]. Charman, & Quiroz, supra note 86, at 484.

 [227]. See State v. Henderson, 27 A.3d 872, 897 (N.J. 2011).

 [228]. Leippe, supra note 96, at 197.

 [229]. Yates, supra note 220.

 [230]. Wise, supra note 110, at 4–5.

 [231]. Henderson, 27 A.3d at 882–84.

 [232]. Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 342 (3d Cir. 2016) (McKee, C.J., concurring).

 [233]. See N.C. Gen. Stat. § 15A-284.50–.53 (2015).

The Mismatch Between Twenty-First-Century Forensic Evidence and Our Antiquated Criminal Justice System – Article by Erin Murphy

From Volume 87, Number 3 (March 2014)

The shortcomings of forensic evidence in the criminal justice system are now well known. But most scholarly attention has concentrated on “first-generation” forensic techniques such as hair or pattern analysis, bite marks, firearms, and ballistics. Moreover, most of the attention has centered on the investigative process, specifically the collection and analysis of evidence. This Essay turns the critical lens on scientific evidence in a different direction. It focuses on “second-generation” technologies—such as location tracking, biometrics, digital forensics, and other database-driven techniques, and it scrutinizes the adjudicative system—the “bail to jail” stream—rather than the investigative process. Ultimately, this Essay argues that almost every aspect of the adversarial process, as currently conceived, is ill-suited to ensuring the integrity of high-tech evidence. Specifically, the adversarial model demands individualized rather than collective inquiries, embraces secrecy rather than transparency, and privileges viva voce evidence over other forms of fact-gathering. Furthermore, it heavily depends upon the skill of counsel and in-court confrontation rather than out-of-court oversight and structural reform to address problems related to evidentiary integrity, and adopts rigid rules of finality grounded in part on an assumption that proof is always inconclusive. This Essay concludes that the eighteenth-century model of justice may be ill-suited to twenty-first-century evidence, and offers recommendations for a more reliable factfinding system.



Black and White or Red All Over? The Impropriety of Using Crime Scene DNA to Construct Racial Profiles of Suspects – Note by Natalie Quan

From Volume 84, Number 6 (September 2011)

When the body of a deceased woman was found near the Mississippi River close to Baton Rouge in July 2002, DNA retrieved from the crime scene was linked to the murders of two other women in the area, and multiple law enforcement agencies subsequently began an aggressive search for the serial killer. Using witness statements and an FBI profile, the FBI, the Louisiana State Police, and the police and sheriff’s departments of Baton Rouge determined that their suspect was a young white man. After a fourth murder believed to have been committed by the same perpetrator occurred in December 2002, officials intensified their hunt for the killer by spending over one million dollars to collect and test the DNA of some 1200 white men in the area, but they made no matches and consequently had no leads.

In March 2003, the investigators crossed paths with molecular biologist Tony Frudakis of the company DNAPrint Genomics, who claimed that he could ascertain the suspect’s social race by testing the crime scene DNA for 176 specific genetic markers that disclose information about physical traits. Frudakis said that because certain markers are found predominantly in people of African, Indo-European, Native American, or South Asian roots, he could analyze their frequencies and predict the suspect’s ancestry with 99 percent accuracy, and then infer social race from this ancestry finding. Initially skeptical of the science, officials sent Frudakis DNA samples from twenty individuals with known racial designations—and upon blind testing the samples, Frudakis correctly identified the race of each individual.

Even more intriguing were the results of Frudakis’s analysis of the Baton Rouge serial killer’s DNA. Using a test he called DNAWitness, Frudakis concluded that the suspect’s “biogeographical ancestry” was 85 percent Sub-Saharan African and 15 percent Native American, which left, in his words, “no chance that this is a Caucasian. No chance at all.”



The Fraud Exception to the Parol Evidence Rule: Necessary Protection for Fraud Victims or Loophole for Clever Parties? – Note by Alicia W. Macklin

From Volume 82, Number 4 (May 2009)

Consider the following hypothetical: Two businesses—X, a software company, and Y, a retailer—reach a typical agreement regarding a software license. After extended negotiations, a written, integrated agreement finalizes the deal; it states that X will license software to Y and provide related hosting and technical support services. It does not include, nor did the two parties ever discuss, implementation of the software. Some time after the agreement was made, Y attempts to compel X to implement the software. Y later argues in court that X made fraudulent oral promises that induced Y to sign the written agreement. Y claims that X additionally agreed to provide both a total cost of ownership guarantee, including implementation, and the assistance of its consulting and development personnel to implement the software. Y’s lawyers correctly realize that, in California, the courts have allowed extrinsic evidence of fraudulent promises when those promises are consistent with or independent of the written agreement, notwithstanding the Parol Evidence Rule (“PER”). Thus, while X can present its best argument that the promise to implement the software would directly contradict or vary the terms of the limited licensing contract, the outcome in court is still unpredictable. Unsuspecting X is in danger of being forced to bear a substantial burden for which it never intended to contract.



Sampling Evidence at the Crossroads – Article by Laurens Walker & John Monahan

From Volume 80, Number 5 (July 2007)

McLaughlin v. Phillip Morris USA, Inc., has been certified as a nationwide class action on behalf of an estimated 50 million “light” cigarette smokers. Plaintiffs seek more than $280 billion in damages, to be trebled to over $800 billion. In certifying this mass tort, District Judge Jack B. Weinstein announced his plan to completely abandon individualized adjudication in favor of aggregate factual determinations based on evidence from statistical samples. Prior to McLaughlin, at least two federal trial judges had permitted the use of sampled evidence in major consolidated or class action trials, but both included some adjudication of individual claims. In McLaughlin, Judge Weinstein’s plan would entirely eliminate proof of individual class member claims in the face of the overwhelming cost of gathering such evidence from tens of millions of plaintiffs. The central issue in the interlocutory appeal now before the Second Circuit is the legality of Judge Weinstein’s plan to use sampled evidence to determine whether the plaintiff class members relied on representations by the defendants that “light” cigarettes were less harmful than regular cigarettes, and, if so, to determine the aggregate amount of damages.

In this Article, we address and defend Judge Weinstein’s controversial proposal to statistically sample evidence, rather than to obtain evidence on an individualized, case-by-case basis. We endorse his view that statistical sampling combined with other evidence “is a necessary and pragmatic evidentiary approach that reflects full due process in this and many other mass tort cases.”