A case in point: The Texas Fourteenth Court of Appeals upheld a capital murder conviction (life sentence) in August in which the main inculpatory evidence was a voice identification made by a witness 20 years after the crime occurred. Since the standard of review was "abuse of discretion," the justices felt compelled to defer to the trial judge's ruling, which relied on a 1972 Supreme Court precedent, Neil v. Biggers. But Chief Justice Kem Thompson Frost offered up a concurrence suggesting the law and science are out of whack:
In the forty-three years since the Supreme Court of the United States articulated the Biggers factors, scientists have been studying whether these factors accurately predict the reliability of a witness’s identification. The findings raise concerns. Studies are ongoing, but the research results in hand tend to undercut confidence that the Biggers factors are truly indicia of reliability. The scientific literature suggests that though some of the Biggers factors relate to the reliability of a witness’s identification, others do not. Empirical research seems to be revealing that some of the factors may not be good indicators of reliability.Chief Justice Thompson Frost adumbrated a sampling of research demonstrating why the factors judges are told to consider in Biggers don't jibe with modern science, much of which also relates to shortcomings in eyewitness testimony. In the end, though, she concluded that "Even though the scientific literature calls into question the validity of the Biggers factors, this court is bound to consider them" and, ultimately, to defer to the trial court. There's little question, though, that the Chief Justice has identified a rather junky brand of evidence which deserves closer scrutiny than it has heretofore received.