Whether the Biggers test for determining the reliability of eyewitness identification evidence remains valid in light of scientific research demonstrating its defects

QUESTION PRESENTED FOR REVIEW In criminal cases, where a defendant’s conviction is based on eyewitness identification, this Court has found that it was the likelihood of misidentification that violates a criminal defendant’s right to due process and that the central question was whether the identification procedure utilized was reliable even though the confrontation procedure was suggestive. Since this Court established the five-factor test in Neil v. Biggers, 409 U.S. 188 (1972), for determining the reliability of eyewitness identifications, which was reaffirmed in Manson v. Brathwaite, 432 U.S. 98 (1977), scientific research has demonstrated that a few of those factors have very little correlation with the accuracy of that identification. Specifically, the level of certainty or confidence a witness demonstrates in his identification can be a poor gauge of accuracy. In light of the scientific findings, the numerous cases of DNA exonerations of individuals wrongly convicted due to eyewitness evidence, and the trend in the state courts of last resort addressing the due process concerns stemming from the defects in the Biggers test, this case presents an opportunity for this Court to resolve the split in the federal and state courts regarding the test courts are to use in determining whether an identification made during an unnecessarily suggestive procedure is nonetheless sufficiently reliable to satisfy the requirements of due process and the integrity of our judicial system. 1