Difference between revisions of "Eyewitness Misidentification"

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== Background ==
  
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Eyewitness misidentification is the largest source of wrongful convictions in the United States.  Eyewitness misidentification has played a role in more than 75% of the convictions overturned due to DNA testing.<ref>Innocence Project Website: [http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php]</ref> From 1989 - 2007, more than 200 Americans have been exonerated by DNA evidence.  Of these, about half had previously been sentenced to death.<ref>Gross, Samuel R. "Convicting the Innocent", Annual Review of Law and Social Science, Vol. 4: 173-192, 174 (Volume publication date December 2008).</ref>  Yet DNA evidence is only available in about 10% of cases, making the proliferation of eyewitness misidentifications a serious problem contributing to wrongful convictions.<ref>Innocence Project Website: [http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php]</ref>
  
== Background ==
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The phenomenon of eyewitness misidentification also contains a racial dimension: 55% of exonerations in sexual assault or murder cases involve African-American defendants and white victims.<ref>Medwed, David, "Anatomy of a Wrongful Conviction: Theoretical Implications and Practical Solutions" Villanova Law Review, Vol. 51, 2006, U of Utah Legal Studies Paper No. 05-37.</ref>
 
 
Eyewitness misidentification is the greatest source of wrongful conviction in the United States; it is responsible for more than 75% of the convictions overturned in DNA testing (IP).  From 1989 - 2007, more than 200 Americans have been exonerated by DNA evidence; of these 200, about half had previously been sentenced to death. (Gross, 2008, 174) Yet, DNA evidence can only account for a small percentage of actual wrongful convictions, since there is only biological evidence in 10% of all felony cases (Mourer 2008, 7).
 
The phenomenon of eyewitness misidentification is not without the dimension of race. Fifty-five percent of the exonerations in cases of sexual assault or murder involve African-American defendants and white victims, which is four times higher than the rate at which these type of cross-racial crimes actually occur. Overall, racial minorities are "over-represented and "over punished" in the criminal justice systems. (Medwed 2006, 137)
 
While the belief in the infallibility of human memory is pervasive, social science research in the past 30 years has proven that eye-witness identifications can be inaccurate (Innocence Project Website). A study found that 80% of juries will believe eyewitness testimony (Mourer 2008, 8)
 
  
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Eyewitness evidence tends to be persuasive to a judge and jury.  One study found that 80% of juries will believe eyewitness testimony.<ref>Sarah Anne Mourer "Reforming Eyewitness Identification Procedures under the Fourth Amendment" Duke Journal of Constitutional Law and Public Policy, University of Miami Legal Studies Research Paper No. 2008-02,2008.</ref>  However, social science research in the past 30 years has proven that eyewitness identifications are often inaccurate.<ref>Innocence Project Website: [http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php]</ref> Research has shown that the human mind is not like a recorder; the average human cannot take a photographic snapshot of the perpetrator in their mind.  Additionally, the possibility for memory contamination is high throughout the evidence collecting process.<ref>Innocence Project Website: [http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php]</ref>
  
 
== Data ==
 
== Data ==
  
The problem behind the systematic study of false convictions is the impossibility of determining this exact number; there are many cases of false convictions that are never brought to light. Almost everything we know about false confessions is through exonerations, which only accounts for 2% of all rape and murder cases (Gross, 2008, 173). Between 1989 and 2003, eyewitness misidentification was the cause of error in 50% of exonerated murder cases and 88% of rape cases. (Gross, 2008, 186)
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The difficulty in studying false convictions stems from the fact that false convictions are only brought to light when they are overturned, so it is impossible to estimate how many false convictions are out there. Exonerations only account for 2% of all rape and murder cases.<ref>Gross, Samuel R. "Convicting the Innocent", Annual Review of Law and Social Science, Vol. 4: 173-192, 173 (Volume publication date December 2008).</ref> Between 1989 and 2003, eyewitness misidentification was the cause of error in 50% of exonerated murder cases and 88% of rape cases.<ref>Gross, Samuel R. "Convicting the Innocent", Annual Review of Law and Social Science, Vol. 4: 173-192, 186 (Volume publication date December 2008).</ref>
 
 
  
 
== Memory and Suggestion ==
 
== Memory and Suggestion ==
  
Psychologists and behavioral science researchers have found that memory is influenced by the conditioning of the observer. Time is also an important element; psychologists describe the influence of the passing time in terms of sharpening and leveling effect. With the passage of time, the critical aspects of the perceived situation becomes exaggerated or sharpened. At the same time, memory for less critical aspects of the original perception becomes diminished in a phenomenon known as leveling. One major factor that influences the witness' memory is the degree of suggestion present in the identification process, which can be created intentionally or non-intentionally (Center for Criminal Justice Advocacy Website). According one study of eyewitness accuracy, study participants that received confirming feedback (ie. information suggesting that their identification is correct) reported having a better view of the culprit, more easily making their identification, being more willing to testify and having a clearer picture of the culprit's face in their mind. (Bradfield 2002, 116)
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Psychologists and behavioral science researchers have found that memory is influenced by an observer's conditioning. Time is also an important element. Psychologists describe the influence of the passing time in terms of sharpening and leveling effect; thus, as time passes, critical aspects of the remembered situation become exaggerated or sharpened. At the same time, memory for less critical aspects of the original perception become diminished in a phenomenon known as leveling. For example, in a store hold-up, the eyewitness may remember the weapon more accurately than the person wielding it.<ref>Innocence Project Website: [http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php]</ref> 
  
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Another major factor influencing memory is the amount of suggestion supplied by law enforcement throughout the identification process.  Suggestion can be created intentionally or unintentionally.<ref>Center for Criminal Justice Advocacy Website [http://criminaldefense.homestead.com/eyewitnessmisidentification.html]</ref> According to one study of eyewitness accuracy, study participants that received confirmation (ie. feedback suggesting their identification was correct) reported having a clearer picture of the culprit's face, being sure of their description, and being more willing to testify.<ref>Ann Bradfield, Gary Wells and Elizabeth Olson, "The Damaging Effect of Confirming Feedback on the Relationship Between Eyewitness Certainty and Identification Accuracy"  Journal of Applied Psychology Vol. 87, No. 1, Pg. 216, 2002.</ref>
  
 
== Variables ==
 
== Variables ==
  
The variables that cause eyewitness misidentification can be divided into two categories: estimator variables and systems variables. (Innocence Project Website)
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Variables contributing to  eyewitness misidentification are divided into two categories:  
- Estimator variables cannot be controlled by the criminal justice system. Examples of estimator variables include: the lighting during which the crime took place, the distance from which the eyewitness saw the criminal, the race of the criminal, the presence of a weapon during the crime and the degree of stress and trauma suffered by the eyewitness during the crime.
 
  
- Systems variables can and should be controlled by the criminal justice system. These include the manner in which the law enforcement system retrieves information from the eyewitness, such as lineups and photo arrays. Since system variables that affect the accuracy of identification include the type of lineup, the selection of "fillers, the manner in which the lineup is administers, instructions to witnesses before identification procedures, the identity of the person administering the lineup, and communication with witnesses after they make the identification.
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1) '''Estimator Variables:'''
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Variables that cannot be controlled by the criminal justice system.  
  
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Examples include:
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*Lighting during the event 
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*Distance between the Eyewitness and Perpetrator
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*Race of Perpetrator
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*Presence of a weapon 
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*Degree of Stress and Trauma suffered by Eyewitness
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2) '''Systems Variables:'''
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Variables that can and should be controlled by the criminal justice system.
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Examples include:
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*Manner in which Investigating Officers retrieve information from Eyewitness
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**Type of [[Showups, Lineups, and Photo Arrays | Lineups or Photo Arrays]]
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**Selection of Fillers
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**Manner in which the Lineup is Administered
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**Instructions to Eyewitness before Identification
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**Communication with Eyewitness after Identification
  
 
== Policy ==
 
== Policy ==
  
There is currently no overarching policy on reforming eye-witness misidentification procedures. However, Lawyers, judges and law enforcement officials are not unaware of systems variables that cause the eyewitness misidentification. In 1999, the US Justice Department's National Institute of Justice published a landmark report on this problem entitled "Eyewitness Evidence: A Guide for Law Enforcement." (Thompson 2009, 3)This report serves as a step-by-step guide of standardized practice for minimizing errors in eyewitness identification, ranging from the role of the investigator in obtaining information from the witness, preparing mug books (a photo book compilation of previously arrested people), instructing the witness and preparing lineups. According to Gary Wells' article for Harvard University's Nieman Foundation for Journalism, reforms have already taken place in New Jersey, Boston (MA), Minneapolis (MN), North Carolina, Wisconsin, Virginia Beach (VA) and Santa Barbara County (CA). (Wells, Nieman Website)
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There are currently no government-endorsed policies to reform eyewitness misidentification. However, lawyers, judges, and law enforcement officials are aware of the systemic problems with eyewitness misidentification.<ref>Sandra Guerra Thompson, "Judicial Blindness to Eyewitness Misidentification", Marquette Law Review, Forthcoming, U of Houston Law Center No. 2009-A-35.</ref>  In 1999, the United States Department of Justice (DOJ) published a report entitled "Eyewitness Evidence: A Guide for Law Enforcement." The report provides a guide for standardizing eyewitness identification to minimize errors.  The DOJ supports a methodical approach and provides guidance at every step of investigation from the initial witness interview to instructing the witness during lineups.<ref>US Justice Department's National Institute of Justice Website: Eyewitness Evidence: A Guide for Law Enforceme[http://www.ncjrs.gov/pdffiles1/nij/178240.pdf]</ref>
  
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Some states have undertaken reforms of their own volition, though the process is limited to future identifications only.  For example, reform programs have begun in New Jersey, North Carolina, and Wisconsin.  In addition, a few cities have begun implementing reform: Boston, MA; Minneapolis, MN; and Virginia Beach, VA.<ref>Niemen Foundation for Journalism at Harvard University Website [http://niemanwatchdog.org/index.cfm?fuseaction=ask_this.view&askthisid=0028]</ref>
  
== Solutions to Prevent Eyewitness Misidentification ==
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== Solutions ==
 
   
 
   
The measures of reform generally include these following factors from the law enforcement standpoint:
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Reform measures generally promote increased diligence by law enforcement officials:  
 
 
* Instructing the witness:  It is important for the law enforcement officer to let the witness know that the suspected criminal might not be in the lineup. The witness should be discouraged from guessing if he/she is unsure. (Wells, Nieman Website)
 
 
 
* Number of fillers: The use of five or more lineup fillers who fit the description of the suspect, thus ensuring that one person does not stand out due to any phenotypes (Wells, Nieman Website)
 
 
 
* Sequential versus simultaneous display: When exhibiting a photographical lineup, experts suggest displaying the pictures sequentially, rather than simultaneously in order to combat the problem of relative judgment, in which the witness chooses the person most resembling the criminal from a simultaneous display. Currently, only the states of New Jersey and North Carolina mandate the sequential display. (Thompson 2009, 13)
 
 
 
* Blind lineup: the lineup is conducted by another law enforcement official other than the case detective, who cannot distinguish between the lineup fillers and the person of interest and therefore cannot give the eyewitness subtle hints or indications about the identity of the suspect. (Fisher 2007, 5)
 
  
* Double blind lineup: The history of conducting psychological experiments has indicated that despite attempts to remain neutral, the experimenter can invariably betray some indication of his/her knowledge. Moreover, if the witness thinks that the conductor of the lineup knows the identity of the suspect, the witness is likely to interpret the any inadvertent signs given by him/her. (Bradfield 2002, 118) Whenever possible, the lineup should be conducted by a law enforcement official who does not know the identity of the suspect. Furthermore, the witness should be instructed that that the law enforcement official does not know the identification of the suspect. (Thompson 2009, 12)
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* '''Instructing the witness:'''  It is important to emphasize that the suspect may not be in the lineup.  The official should discourage the witness from guessing if unsure.<ref>Niemen Foundation for Journalism at Harvard University Website [http://niemanwatchdog.org/index.cfm?fuseaction=ask_this.view&askthisid=0028]</ref>
  
* Collection of Certain Reports: Immediately following the identification, the person conducting the lineup should secure a statement from the victim on how certain he/she is of the identification. The timing of this statement is particularly important because it is the natural tendency of the victim to become highly certain of his/her identification later on in the case after being briefed by police and prosecutors. Having eyewitness report their certainty at the time of the identification without the contamination of external influences will prevent "certainty-inflating" information or external influences later. (Bradfield, 119)
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* '''Lineup Composition:''' Officials should use five or more fillers who fit the basic description of the suspect to ensure that one person does not obviously stand out as different. For example, the person should not be the only one of his/her race or the only one with facial hair.  Additionally, the same suspect should not be shown in multiple lineups.<ref>Niemen Foundation for Journalism at Harvard University Website [http://niemanwatchdog.org/index.cfm?fuseaction=ask_this.view&askthisid=0028]</ref>
  
C* lear Records: Investigators should maintain a clear record of all of the lineups, not just the one that resulted in the identification of the person who is the focus of the investigations.   
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* '''Sequential v. Simultaneous Display:''' During a photographic lineup, experts suggest displaying pictures sequentially rather than simultaneously.  The problem with simultaneous display is that a witness tends to perform a relative judgment of which ''most resembles'' their image of the suspectCurrently only New Jersey and North Carolina mandate sequential display.<ref>Sandra Guerra Thompson, "Judicial Blindness to Eyewitness Misidentification", Marquette Law Review, Forthcoming, U of Houston Law Center No. 2009-A-35.</ref>
  
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* '''Blind lineup:''' The lineup should be conducted by a law enforcement official other than the case detective.  This way, the officer conducting the lineup cannot distinguish between fillers and the individual of interest and cannot unintentionally or intentionally indicate the identity of the suspect.<ref>Fisher, Stanley "Eyewitness Misidentification Reform in Massachusetts", Working Paper Series, Public Law & Legal Theory Working Paper No. 07, 2007.</ref>
  
== Practical Considerations for the Defender (Wells, Nieman Website) ==
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* '''Confidence Statement:''' Immediately following identification, the individual conducting the lineup should secure a statement from the eyewitness' level of certainty.  Timing is extremely important.  An eyewitness tends to become more certain after being briefed by the police and prosecutors.<ref>Ann Bradfield, Gary Wells and Elizabeth Olson, "The Damaging Effect of Confirming Feedback on the Relationship Between Eyewitness Certainty and Identification Accuracy"  Journal of Applied Psychology Vol. 87, No. 1, Pg. 216, 2002.</ref> 
  
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* '''Records:''' Investigators should maintain a clear record of every lineup, not just the one that resulted in identification of a suspect.  Additionally, identification should be video recorded whenever possible.  Recording benefits both the defense and the prosecution.  In the event of misconduct, the defense has visual evidence.  On the other hand, the prosecution may show the jury that the procedures were legitimate and aboveboard.
  
Engaging a Witness to Testify Eyewitness Misidentification: It is possible to find academics, such as Gary Wells, who have published articles on the topic of eyewitness misidentification. Especially in the case in which inappropriate pre-trial suggestion has occurred, expert testimony on the vague nature of eyewitness identification can be useful in discrediting the witness.
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== Practical Considerations ==
  
Motion to Suppress: The prosecution is more likely to bring charges in cases in which the eyewitnesses is certain than in cases in which the eyewitness is not. If the decision is made to prosecute, the defense can submit a motion to suppress the identification evidence on the grounds that the eyewitness is uncertain. The decision made in Neil v. Biggers (1972) lays out the judicial guidelines for the motion to suppress based on whether or not the witness is certain. In the cases in which the witness is certain, the motion to suppress almost never succeeds. (Bradfield 2002, 117)
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'''Engaging an Expert Witness:''' Expert Testimony can be used to discredit an eyewitness identification.
  
Participation of the Client: In the United States, there are no legal grounds for failing to participate in a lineup, especially if the client is already in custody. Since the client's participation in there is no valid privilege against self-incrimination claim.
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'''Motion to Suppress:''' The prosecution is unlikely to pursue a case in which the eyewitness is uncertain; however if there are mitigating factors, the defense can submit a "Motion to Suppress" the identification and exclude the eyewitness' testimony.  ''Neil v. Biggers'' (1972)outlines the standard for granting a Motion to Suppress.  Factors include:
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*1) Opportunity of the witness to view the criminal at the time of the crime
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*2) Witness' degree of tension
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*3) Accuracy of the witness' prior description of criminal
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*4) Level of certainty demonstrated by the witness at identification
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*5) Length of time between the crime and identification
  
Preparing the Client: If the client is asked to participate in a lineup, it is important to brief him/her to cooperate with the police and avoid any obstreperous behavior. The lack of cooperation can be used against the client later on in trial. Advise the client not to say anything to the other people chosen to appear in a lineup. If the client has not appeared in a lineup in the past, find out how the lineup is conducted in the locality and explain the process to the client.
 
  
Defender Attendance at the Lineup: In the event that attendance at the lineup. Read the National Institute of Justice's report entitled "Eyewitness Evidence - A Guide for Law Enforcement" in order to gain a better understanding of the fair way to conduct lineups. The action of the defender at the lineup is dependent on what the defender anticipates in court. In general, the role of the defender should be a passive one, but the level of involvement depends on many variables such as: the potential culpability of the client, the defender's knowledge about the trial/investigation and knowledge about the police.
 
  
- Passive Role: If the police use suggestive procedures, it may be best to remain passive but document the procedures in order to discredit the witness in court. Ideally, the defender should carry a small video camera and record what happens during the lineup. The defender should also be accompanied by a third party, a relatively unbiased third party "prover."
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'''Client Preparation:''' If the client is asked to participate in a lineup, it is important to brief him/her to cooperate and avoid any obnoxious behavior. Lack of cooperation can be used against the client at trial. The Defender should research how lineups are conducted in the locality and explain the process to the client.  Also, he/she should advise his/her client not to speak to other members of the lineup.
- Active Role: If the defender determines that it's in the client's best interest to make constructive suggestions concerning the lineup, the defender should file a motion for best practices in line-ups and eye-witness interviews. If the defender is in a situation where the defendants' right to counsel has been accrued, the defender can make the argument that the right to counsel includes the right to be present at a pre-line up briefing and post line-up debriefing.
 
  
Preparing Cross-Examination of Eyewitness Evidence: Questions that should be asked of the defense in preparation:
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'''Lineup Attendance:''' The Defender should attend the lineup whenever possible.  The National Institute of Justice published a report entitled ''Eyewitness Evidence - A Guide for Law Enforcement'' outlining fair lineup practices. In general, the Defender should remain passive during the lineup, and if he/she determines that some action is necessary, he/she should be authoritative, yet deferential. 
- What elements on the accuracy of the identification does the attorney want to present to the jury?
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*''Passive Role:'' The Defender should document all procedures for later use in court. Ideally, the Defender should carry a small video camera and be accompanied by an unbiased third party who will act as a "prover" in court.
- What specific jury instructions will the trial judge give in relation on identification?
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*''Active Role:'' If the Defender determines that it is in the client's best interest to interfere, the Defender should file a "Motion for Best Practices".
- Will the defender only rely on the cross-examination of the eyewitness to establish the basis for the misidentification claim? Will the defender be able to introduce expert evidence on factors that influence the accuracy of identification, such as: forgetfulness,
 
- Is there any documentation of the identification process? This includes document from formal/informal discovery, about the witness, the perpetrator, the client, the occurrence of the crime, as well as, show-ups, photo spreads and lineups with any instructions delivered to the eyewitness by law enforcement officers.  
 
- What information has been published in live witness or scholarly research about factors that can positively or negatively affect the eyewitness identification?
 
  
Opening Statement:
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== Trial Tips ==
If the defender plans to attack the testimony of the eyewitness, the defender should claim in the opening statement that the eyewitness is either mistaken or lying. In most cases, the defender should claim that the eyewitness is mistaken. In the case that the defender wants to claim that the witness has lied, the defender should be prepared to offer proof of the motive.
 
  
Jury Instructions:  
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'''Cross-Examination of Eyewitness Evidence:''' Issues the defense should explore during trial preparation:  
The defenders should ask for instructions cautioning the jurors of the vagaries of eyewitness misidentification. The defender should attempt to write his/her own instruction to make sure that the tone is fair. In the case that the trial judge refuses to give the defendants' required instructions, ask the judge to give one. If the defender feels that any part of the judge's instruction is unfair, the defender should object to the aspects that are unfair.
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*Which identification elements do you (the attorney) want to present to the jury? 
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*What jury instructions do you want given to the jury regarding identification?
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*Will you rely on cross-examination of the eyewitness to establish a misidentification claim? Will you introduce expert evidence on factors that influence  identification? Or both?
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*Was the identification process documented? And do you have access to recordings/documents?
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*What extraneous research will positively or negatively affect the impact of the eyewitness identification?
  
Suggesting Reasonable Doubt:
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'''Opening Statement:'''
Misidentification is in the category of a "reasonable doubt" defense, which means that the defender is contesting that there is at least a reasonable doubt that the crime was not committed by the defendant. In order to achieve reasonable doubt, focus on weakening the credibility of an eyewitness opinion. Some factors for devising questioning:
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The opening statement is the defense's first opportunity to argue in a "you will hear today" manner for eyewitness misidentification. If the Defender plans to attack the legitimacy of the identification, the Defender should claim the eyewitness is either mistaken or lying. The defense should be prepared to present evidence regarding the witness' motive, if claiming the witness is lying. In the majority of cases, the defender should claim that the eyewitness is simply mistaken and demonstrate discrepancies.
 
 
- Was the perpetrator the eyewitness knew before the offense?
 
- Did the eyewitness only have a brief time in order to identify the perpetrator?
 
- Were the eyewitness and the perpetrator of different races?
 
- How far away was the eyewitness from the perpetrator during the time of the viewing?
 
- Did the viewing occur during the day or night?
 
- Does the eyewitness have good vision?
 
- What were the lighting conditions of the viewing?
 
- Did the perpetrator use a deadly weapon that might have caused fear or distract the eyewitness' attention from the perpetrator's actions?
 
- Did the eyewitness ever change the description of the perpetrator at any point?
 
- During the time of the identification, how was the client displayed - ie. showups, line-ups, photo displays
 
- How long after the event was the identification made?
 
- Was the perpetrator in disguise?
 
- What characteristics did the perpetrator have that would make him stand out (scars,
 
- Does the client have any distinguishing features that the perpetrator did not have?
 
- Did the client have any contact with the eyewitness prior to/after the event that would cause the eyewitness to confuse contact with the client with the criminal event?
 
- What did the investigators do or say that would improperly influence the eyewitness' identification?
 
- What was said between the investigators working on the case and the eyewitness? What kinds of instructions were given during the interaction?
 
  
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'''Jury Instructions:'''
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The defense should write fair and balanced jury instructions regarding the witness' identification.  If the trial judge refuses the defense's instructions, ask the judge to provide his/her own instructions pertaining to identification.  If the defender believes any part of the instructions are unfair, the defense should formally object.
  
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'''Reasonable Doubt:'''
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Eyewitness misidentification is an argument for reasonable doubt as the defense is contesting that there is at least a reasonable doubt that the crime was not committed by the defendant.  In order to succeed on reasonable doubt, the defense should focus on weakening the credibility of the identification.  Factors to explore:
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* Did the eyewitness have any interaction with the alleged perpetrator prior to the offense?
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* How long was the incident? Did the eyewitness have a sufficient amount of time to identify the perpetrator?
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* Were the eyewitness and the perpetrator of different races?
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* How far was the eyewitness from the perpetrator during the incident?
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* What were the conditions?  Was it day or night, light or dark, cloudy or sunny, etc?
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* Does the eyewitness have impaired vision?
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* Did the perpetrator use a deadly weapon that might have distracted the eyewitness during the incident?
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* Has the eyewitness changed the description of the perpetrator at any time?
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* How was identification conducted: lineup, mugbook, photo display, etc?
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* How long was it between the incident and identification?
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* Was the perpetrator in disguise?
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* Did the perpetrator have any identifying characteristics?
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* Does your client have any distinguishing features that the perpetrator did not have?
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* Did your client have any contact with the eyewitness prior to/after the event that might have led the eyewitness to confuse your client with the perpetrator?
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* Did the investigators do or say anything to improperly influence the eyewitness identification?
  
 
== Case Studies ==
 
== Case Studies ==
  
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* Shawn Massey
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Massey spent 12 years in prison based on a false eyewitness identification. At the time of identification, the eyewitness was shown several photos and pointed out a resemblance between Massey and the perpetrator.  However, she also told investigators that Massey did not have the correct hair, his skin was much lighter, and he weighed much less than the perpetrator. None of this information was given to Massey's Defense Attorney and did not come to light at trial. This information didn't come to light until years later when Massey was finally released.  Luckily, the witness was open to cooperating with investigators.  This case demonstrates the importance of the Defense Attorney's conducting investigations into the identification process.  (Duke Law Innocence Project).
  
Calvin Willis:
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* Calvin Willis
 
In 1982, three girls were sleeping alone in a home in Shreveport, Louisiana when a man with cowboy boots came into the house and raped the oldest girl, who was 10 years old. When the police started the investigation, all three girls remembered the incident differently. Additionally, one police report stated that the victim did not see the police. Another report stated that the victim identified her attacker as Calvin Willis. The girl testified that she was shown a photo lineup and instructed to pick Willis, who was convicted and sentenced to life in prison. In 2003, DNA evidence proved Willis' innocence; he had spent nearly 22 years in prison for a crime he didn't commit. (Innocence Project Website)  
 
In 1982, three girls were sleeping alone in a home in Shreveport, Louisiana when a man with cowboy boots came into the house and raped the oldest girl, who was 10 years old. When the police started the investigation, all three girls remembered the incident differently. Additionally, one police report stated that the victim did not see the police. Another report stated that the victim identified her attacker as Calvin Willis. The girl testified that she was shown a photo lineup and instructed to pick Willis, who was convicted and sentenced to life in prison. In 2003, DNA evidence proved Willis' innocence; he had spent nearly 22 years in prison for a crime he didn't commit. (Innocence Project Website)  
  
Bobby Joe Leaster
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* Bobby Joe Leaster
In 1970, a man named Levi Whiteside was killed in a holdup of a neighborhood store. Bobby Joe, who was standing on a nearby street corner on his way to visit his family, was wearing clothes that matched eyewitness descriptions of the person who killed Levi. Bobby Joe was apprehended and brought in front of the victim's widow, who was held at gunpoint during the holdup and had looked at the assailant. The police presented only Bobby Joe, in handcuffs and asked "is this him?" She identified him and he ended up in prison for 15 years, until another eyewitness testimony freed him.  (Mourer 2008, 1 - 2)
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In 1970, a man named Levi Whiteside was killed in a hold-up of a neighborhood store. Bobby Joe, who was standing on a nearby street corner on his way to visit his family, was wearing clothes that matched eyewitness descriptions of the person who killed Levi. Bobby Joe was apprehended and brought in front of the victim's widow, who was held at gunpoint during the hold-up and had looked at the assailant. The police presented only Bobby Joe, in handcuffs and asked "is this him?" She identified him and he ended up in prison for 15 years, until another eyewitness testimony freed him.  (Mourer 2008, 1 - 2)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
Sources
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----
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See [[Causes of Wrongful Convictions]]
  
Academic Papers:
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{{Languages|Eyewitness Misidentification}}
1. Gross, Samuel R. "Convicting the Innocent", Annual Review of Law and Social Science, Vol. 4: 173-192 (Volume publication date December 2008)
 
2. Samuel R. Gross , Kristen Jacoby , Daniel J. Matheson , Nicholas Montgomery and Sujita Patil, "Exonerations in the United States, 1989 through 2003", Journal of Criminal Law and Criminology, Vol. 95, No. 2, 2005 
 
3. Ann Bradfield, Gary Wells and Elizabeth Olson, "The Damaging Effect of Confirming Feedback on the Relationship Between Eyewitness Certainty and Identification Accuracy"  Journal of Applied Psychology Vol. 87, No. 1, 2002
 
4. Sandra Guerra Thompson, "Judicial Blindness to Eyewitness Misidentification", Marquette Law Review, Forthcoming, U of Houston Law Center No. 2009-A-35
 
5. Sarah Anne Mourer "Reforming Eyewitness Identification Procedures under the Fourth Amendment" Duke Journal of Constitutional Law and Public Policy, University of Miami Legal Studies Research Paper No. 2008-02,2008
 
6. Fisher, Stanley "Eyewitness Misidentification Reform in Massachusetts", Working Paper Series, Public Law & Legal Theory Working Paper No. 07, 2007
 
7. Medwed, David, "Anatomy of a Wrongful Conviction: Theoretical Implications and Practical Solutions" Villanova Law Review, Vol. 51, 2006, U of Utah Legal Studies Paper No. 05-37
 
  
Websites:
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== Notes ==
1. Innocence Project Website:
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<references/>
(http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php)
 
2. Center for Criminal Justice Advocacy Website: (http://criminaldefense.homestead.com/eyewitnessmisidentification.html)
 
3. US Justice Department's National Institute of Justice Website:
 
"Eyewitness Evidence: A Guide for Law Enforcement"
 
(http://www.ncjrs.gov/pdffiles1/nij/178240.pdf)
 
4. Niemen Foundation for Journalism at Harvard University Website: (http://niemanwatchdog.org/index.cfm?fuseaction=ask_this.view&askthisid=0028)
 

Latest revision as of 16:03, 4 April 2011

Background

Eyewitness misidentification is the largest source of wrongful convictions in the United States. Eyewitness misidentification has played a role in more than 75% of the convictions overturned due to DNA testing.[1] From 1989 - 2007, more than 200 Americans have been exonerated by DNA evidence. Of these, about half had previously been sentenced to death.[2] Yet DNA evidence is only available in about 10% of cases, making the proliferation of eyewitness misidentifications a serious problem contributing to wrongful convictions.[3]

The phenomenon of eyewitness misidentification also contains a racial dimension: 55% of exonerations in sexual assault or murder cases involve African-American defendants and white victims.[4]

Eyewitness evidence tends to be persuasive to a judge and jury. One study found that 80% of juries will believe eyewitness testimony.[5] However, social science research in the past 30 years has proven that eyewitness identifications are often inaccurate.[6] Research has shown that the human mind is not like a recorder; the average human cannot take a photographic snapshot of the perpetrator in their mind. Additionally, the possibility for memory contamination is high throughout the evidence collecting process.[7]

Data

The difficulty in studying false convictions stems from the fact that false convictions are only brought to light when they are overturned, so it is impossible to estimate how many false convictions are out there. Exonerations only account for 2% of all rape and murder cases.[8] Between 1989 and 2003, eyewitness misidentification was the cause of error in 50% of exonerated murder cases and 88% of rape cases.[9]

Memory and Suggestion

Psychologists and behavioral science researchers have found that memory is influenced by an observer's conditioning. Time is also an important element. Psychologists describe the influence of the passing time in terms of sharpening and leveling effect; thus, as time passes, critical aspects of the remembered situation become exaggerated or sharpened. At the same time, memory for less critical aspects of the original perception become diminished in a phenomenon known as leveling. For example, in a store hold-up, the eyewitness may remember the weapon more accurately than the person wielding it.[10]

Another major factor influencing memory is the amount of suggestion supplied by law enforcement throughout the identification process. Suggestion can be created intentionally or unintentionally.[11] According to one study of eyewitness accuracy, study participants that received confirmation (ie. feedback suggesting their identification was correct) reported having a clearer picture of the culprit's face, being sure of their description, and being more willing to testify.[12]

Variables

Variables contributing to eyewitness misidentification are divided into two categories:

1) Estimator Variables: Variables that cannot be controlled by the criminal justice system.

Examples include:

  • Lighting during the event
  • Distance between the Eyewitness and Perpetrator
  • Race of Perpetrator
  • Presence of a weapon
  • Degree of Stress and Trauma suffered by Eyewitness

2) Systems Variables: Variables that can and should be controlled by the criminal justice system.

Examples include:

  • Manner in which Investigating Officers retrieve information from Eyewitness
    • Type of Lineups or Photo Arrays
    • Selection of Fillers
    • Manner in which the Lineup is Administered
    • Instructions to Eyewitness before Identification
    • Communication with Eyewitness after Identification

Policy

There are currently no government-endorsed policies to reform eyewitness misidentification. However, lawyers, judges, and law enforcement officials are aware of the systemic problems with eyewitness misidentification.[13] In 1999, the United States Department of Justice (DOJ) published a report entitled "Eyewitness Evidence: A Guide for Law Enforcement." The report provides a guide for standardizing eyewitness identification to minimize errors. The DOJ supports a methodical approach and provides guidance at every step of investigation from the initial witness interview to instructing the witness during lineups.[14]

Some states have undertaken reforms of their own volition, though the process is limited to future identifications only. For example, reform programs have begun in New Jersey, North Carolina, and Wisconsin. In addition, a few cities have begun implementing reform: Boston, MA; Minneapolis, MN; and Virginia Beach, VA.[15]

Solutions

Reform measures generally promote increased diligence by law enforcement officials:

  • Instructing the witness: It is important to emphasize that the suspect may not be in the lineup. The official should discourage the witness from guessing if unsure.[16]
  • Lineup Composition: Officials should use five or more fillers who fit the basic description of the suspect to ensure that one person does not obviously stand out as different. For example, the person should not be the only one of his/her race or the only one with facial hair. Additionally, the same suspect should not be shown in multiple lineups.[17]
  • Sequential v. Simultaneous Display: During a photographic lineup, experts suggest displaying pictures sequentially rather than simultaneously. The problem with simultaneous display is that a witness tends to perform a relative judgment of which most resembles their image of the suspect. Currently only New Jersey and North Carolina mandate sequential display.[18]
  • Blind lineup: The lineup should be conducted by a law enforcement official other than the case detective. This way, the officer conducting the lineup cannot distinguish between fillers and the individual of interest and cannot unintentionally or intentionally indicate the identity of the suspect.[19]
  • Confidence Statement: Immediately following identification, the individual conducting the lineup should secure a statement from the eyewitness' level of certainty. Timing is extremely important. An eyewitness tends to become more certain after being briefed by the police and prosecutors.[20]
  • Records: Investigators should maintain a clear record of every lineup, not just the one that resulted in identification of a suspect. Additionally, identification should be video recorded whenever possible. Recording benefits both the defense and the prosecution. In the event of misconduct, the defense has visual evidence. On the other hand, the prosecution may show the jury that the procedures were legitimate and aboveboard.

Practical Considerations

Engaging an Expert Witness: Expert Testimony can be used to discredit an eyewitness identification.

Motion to Suppress: The prosecution is unlikely to pursue a case in which the eyewitness is uncertain; however if there are mitigating factors, the defense can submit a "Motion to Suppress" the identification and exclude the eyewitness' testimony. Neil v. Biggers (1972)outlines the standard for granting a Motion to Suppress. Factors include:

  • 1) Opportunity of the witness to view the criminal at the time of the crime
  • 2) Witness' degree of tension
  • 3) Accuracy of the witness' prior description of criminal
  • 4) Level of certainty demonstrated by the witness at identification
  • 5) Length of time between the crime and identification


Client Preparation: If the client is asked to participate in a lineup, it is important to brief him/her to cooperate and avoid any obnoxious behavior. Lack of cooperation can be used against the client at trial. The Defender should research how lineups are conducted in the locality and explain the process to the client. Also, he/she should advise his/her client not to speak to other members of the lineup.

Lineup Attendance: The Defender should attend the lineup whenever possible. The National Institute of Justice published a report entitled Eyewitness Evidence - A Guide for Law Enforcement outlining fair lineup practices. In general, the Defender should remain passive during the lineup, and if he/she determines that some action is necessary, he/she should be authoritative, yet deferential.

  • Passive Role: The Defender should document all procedures for later use in court. Ideally, the Defender should carry a small video camera and be accompanied by an unbiased third party who will act as a "prover" in court.
  • Active Role: If the Defender determines that it is in the client's best interest to interfere, the Defender should file a "Motion for Best Practices".

Trial Tips

Cross-Examination of Eyewitness Evidence: Issues the defense should explore during trial preparation:

  • Which identification elements do you (the attorney) want to present to the jury?
  • What jury instructions do you want given to the jury regarding identification?
  • Will you rely on cross-examination of the eyewitness to establish a misidentification claim? Will you introduce expert evidence on factors that influence identification? Or both?
  • Was the identification process documented? And do you have access to recordings/documents?
  • What extraneous research will positively or negatively affect the impact of the eyewitness identification?

Opening Statement: The opening statement is the defense's first opportunity to argue in a "you will hear today" manner for eyewitness misidentification. If the Defender plans to attack the legitimacy of the identification, the Defender should claim the eyewitness is either mistaken or lying. The defense should be prepared to present evidence regarding the witness' motive, if claiming the witness is lying. In the majority of cases, the defender should claim that the eyewitness is simply mistaken and demonstrate discrepancies.

Jury Instructions: The defense should write fair and balanced jury instructions regarding the witness' identification. If the trial judge refuses the defense's instructions, ask the judge to provide his/her own instructions pertaining to identification. If the defender believes any part of the instructions are unfair, the defense should formally object.

Reasonable Doubt: Eyewitness misidentification is an argument for reasonable doubt as the defense is contesting that there is at least a reasonable doubt that the crime was not committed by the defendant. In order to succeed on reasonable doubt, the defense should focus on weakening the credibility of the identification. Factors to explore:

  • Did the eyewitness have any interaction with the alleged perpetrator prior to the offense?
  • How long was the incident? Did the eyewitness have a sufficient amount of time to identify the perpetrator?
  • Were the eyewitness and the perpetrator of different races?
  • How far was the eyewitness from the perpetrator during the incident?
  • What were the conditions? Was it day or night, light or dark, cloudy or sunny, etc?
  • Does the eyewitness have impaired vision?
  • Did the perpetrator use a deadly weapon that might have distracted the eyewitness during the incident?
  • Has the eyewitness changed the description of the perpetrator at any time?
  • How was identification conducted: lineup, mugbook, photo display, etc?
  • How long was it between the incident and identification?
  • Was the perpetrator in disguise?
  • Did the perpetrator have any identifying characteristics?
  • Does your client have any distinguishing features that the perpetrator did not have?
  • Did your client have any contact with the eyewitness prior to/after the event that might have led the eyewitness to confuse your client with the perpetrator?
  • Did the investigators do or say anything to improperly influence the eyewitness identification?

Case Studies

  • Shawn Massey

Massey spent 12 years in prison based on a false eyewitness identification. At the time of identification, the eyewitness was shown several photos and pointed out a resemblance between Massey and the perpetrator. However, she also told investigators that Massey did not have the correct hair, his skin was much lighter, and he weighed much less than the perpetrator. None of this information was given to Massey's Defense Attorney and did not come to light at trial. This information didn't come to light until years later when Massey was finally released. Luckily, the witness was open to cooperating with investigators. This case demonstrates the importance of the Defense Attorney's conducting investigations into the identification process. (Duke Law Innocence Project).

  • Calvin Willis

In 1982, three girls were sleeping alone in a home in Shreveport, Louisiana when a man with cowboy boots came into the house and raped the oldest girl, who was 10 years old. When the police started the investigation, all three girls remembered the incident differently. Additionally, one police report stated that the victim did not see the police. Another report stated that the victim identified her attacker as Calvin Willis. The girl testified that she was shown a photo lineup and instructed to pick Willis, who was convicted and sentenced to life in prison. In 2003, DNA evidence proved Willis' innocence; he had spent nearly 22 years in prison for a crime he didn't commit. (Innocence Project Website)

  • Bobby Joe Leaster

In 1970, a man named Levi Whiteside was killed in a hold-up of a neighborhood store. Bobby Joe, who was standing on a nearby street corner on his way to visit his family, was wearing clothes that matched eyewitness descriptions of the person who killed Levi. Bobby Joe was apprehended and brought in front of the victim's widow, who was held at gunpoint during the hold-up and had looked at the assailant. The police presented only Bobby Joe, in handcuffs and asked "is this him?" She identified him and he ended up in prison for 15 years, until another eyewitness testimony freed him. (Mourer 2008, 1 - 2)


See Causes of Wrongful Convictions

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Notes

  1. Innocence Project Website: [1]
  2. Gross, Samuel R. "Convicting the Innocent", Annual Review of Law and Social Science, Vol. 4: 173-192, 174 (Volume publication date December 2008).
  3. Innocence Project Website: [2]
  4. Medwed, David, "Anatomy of a Wrongful Conviction: Theoretical Implications and Practical Solutions" Villanova Law Review, Vol. 51, 2006, U of Utah Legal Studies Paper No. 05-37.
  5. Sarah Anne Mourer "Reforming Eyewitness Identification Procedures under the Fourth Amendment" Duke Journal of Constitutional Law and Public Policy, University of Miami Legal Studies Research Paper No. 2008-02,2008.
  6. Innocence Project Website: [3]
  7. Innocence Project Website: [4]
  8. Gross, Samuel R. "Convicting the Innocent", Annual Review of Law and Social Science, Vol. 4: 173-192, 173 (Volume publication date December 2008).
  9. Gross, Samuel R. "Convicting the Innocent", Annual Review of Law and Social Science, Vol. 4: 173-192, 186 (Volume publication date December 2008).
  10. Innocence Project Website: [5]
  11. Center for Criminal Justice Advocacy Website [6]
  12. Ann Bradfield, Gary Wells and Elizabeth Olson, "The Damaging Effect of Confirming Feedback on the Relationship Between Eyewitness Certainty and Identification Accuracy" Journal of Applied Psychology Vol. 87, No. 1, Pg. 216, 2002.
  13. Sandra Guerra Thompson, "Judicial Blindness to Eyewitness Misidentification", Marquette Law Review, Forthcoming, U of Houston Law Center No. 2009-A-35.
  14. US Justice Department's National Institute of Justice Website: Eyewitness Evidence: A Guide for Law Enforceme[7]
  15. Niemen Foundation for Journalism at Harvard University Website [8]
  16. Niemen Foundation for Journalism at Harvard University Website [9]
  17. Niemen Foundation for Journalism at Harvard University Website [10]
  18. Sandra Guerra Thompson, "Judicial Blindness to Eyewitness Misidentification", Marquette Law Review, Forthcoming, U of Houston Law Center No. 2009-A-35.
  19. Fisher, Stanley "Eyewitness Misidentification Reform in Massachusetts", Working Paper Series, Public Law & Legal Theory Working Paper No. 07, 2007.
  20. Ann Bradfield, Gary Wells and Elizabeth Olson, "The Damaging Effect of Confirming Feedback on the Relationship Between Eyewitness Certainty and Identification Accuracy" Journal of Applied Psychology Vol. 87, No. 1, Pg. 216, 2002.