UC Irvine Law Review

In 2018, in Sexton v. Beaudreaux, the Supreme Court, while purporting merely to summarize prior caselaw, articulated a constitutional standard for assessing eyewitness identification evidence that distorted the Court’s earlier due process jurisprudence and posed a serious—and until now largely unrecognized—threat to the truth-seeking function of the criminal justice system. Previously, the Court had used a relatively straightforward, two-part test for evaluating the constitutional admissibility of eyewitness evidence: First, the defendant was required to prove that police used an identification procedure that suggested the identity of the suspect and that police lacked any reasonable justification for failing to employ a more reliable procedure; second, if the defendant succeeded in showing that law enforcement used an “unnecessarily suggestive” procedure, the court should evaluate a series of ostensibly independent reliability factors to determine whether the suggestive procedure gave rise to a “substantial likelihood of misidentification.” In Beaudreaux, however, the Court asserted that “unnecessary suggestion” means something more than suggestion that is unnecessary; instead, the Court concluded that judges should find an identification procedure to be unnecessarily suggestive only if the procedure was so egregiously defective that the court could conclude, even before evaluating the reliability factors, that the procedure gave rise to a high probability of misidentification. Then, if the defendant succeeds in clearing this heightened hurdle, the court should assess the reliability factors to determine (for a second time) whether the eyewitness in question was likely mistaken. Lower courts have already begun citing the Beaudreaux Court’s flawed dictum with approval, and, even before Beaudreaux, it was common for lower courts to impose heightened burdens on defendants who challenged eyewitness evidence. Ultimately, the Beaudreaux Court’s pronouncement not only misreads Supreme Court eyewitness precedent but will lead to more convictions of innocent defendants based on eyewitness misidentification, which is already a leading cause of wrongful conviction. Finally, analogies to the Court’s due process jurisprudence on involuntary confessions and to its probable cause jurisprudence also counsel against adoption of the Beaudreaux Court’s error.