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 through DNA testing (Innocence Project). 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) However, DNA evidence is present in only about 10% of cases, making the proliferation of eyewitness misidentifications a serious problem contributing to wrongful convictions.
The phenomenon of eyewitness misidentification is not without a racial dimension. Fifty-five percent of exonerations in sexual assault or murder cases involve African-American defendants and white victims. (Medwed 2006, 137)
Eyewitness evidence tends to be persuasive to a judge and jury. One study found that 80% of juries will believe eyewitness testimony (Mourer 2008, 8). However, social science research in the past 30 years has proven that eye-witness identifications are often inaccurate (Innocence Project Website). 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 ripe throughout the evidence collecting process. (Innocence Project, discussed supra)
The difficulty in studying false convictions stems from the impossibility of determining the exact number. False convictions are only brought to light when they are overturned. Exonerations only account 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).
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. 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 holding it.
Another major factor influencing memory is the degree of suggestion present in the identification process. Suggestion can be created intentionally or unintentionally (Center for Criminal Justice Advocacy Website). According to one study of eyewitness accuracy, study participants that received confirmation (ie. feedback suggesting their identification is correct) reported having a clearer picture of the culprit's face, being sure of their description, and being more willing to testify. (Bradfield 2002, 116)
Variables contributing to eyewitness misidentification are divided into two categories:
Estimator Variables: Variables that cannot be controlled by the criminal justice system. Examples include:
- Lighting during event
- Distance between Eyewitness and Perpetrator
- Race of Perpetrator
- Presence of a weapon
- Degree of Stress and Trauma suffered by Eyewitness
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 Lineup is Administered
- Instructions to Eyewitness before Identification
- Communication with Eyewitness after Identification
Currently no government endorsed policy to reform eyewitness misidentification. However, lawyers, judges, and law enforcement officials are not unaware of the systemic problems with eyewitness misidentification. In 1999, the United States Department of Justice (DOJ) published a report entitled "Eyewitness Evidence: A Guide for Law Enforcement." (Thompson 2009, 3) 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.
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. (Bold textWells, Nieman Website)
Reform measures generally promote increased diligence by Law Enforcement Officials:
- Instructing the witness: Important to emphasize that the suspect may not be in the lineup. Official should discourage the witness from guessing if unsure. (Wells, Nieman Website)
- Lineup Composition: 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. Examples: 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. (Wells, Nieman Website)
- Sequential v. Simultaneous Display: During a photographic lineup, experts suggest displaying the 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. (Thompson 2009, 13)
- Blind lineup: A lineup 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. (Fisher 2007, 5)
- Confidence Statement: Immediately following identification, individual conducting the lineup should secure a statement from the eyewitness on their level of certainty. Timing is extremely important. An eyewitness tends to become more certain after being briefed by the police and prosecutors. (Bradfield, 119)
- 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 an Expert Witness: Expert Testimony can be used to discredit an eyewitness identification.
Motion to Suppress: Prosecution 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 criminal at time of crime
- 2) Witness' degree of tension
- 3) Accuracy of the witness' prior description of criminal
- 4) Level of certainty demonstrated by the witness at confrontation
- 5) Length of time between the crime and the confrontation.
(Neil v. Biggers 409 U.S. 188, 199 (1972)).
Client Preparation: If 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, should advise his/her client not to speak to other members of the lineup.
Lineup Attendance: 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. If the defender determines that some action is necessary, the defender should be authoritative, yet deferential.
- Passive Role: Document all procedures for later use in court. Ideally, the defender should carry a small video camera and be accompanied by a 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 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 be able to 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. 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 distract the eyewitness during the incident?
- Has the eyewitness changed their description of the perpetrator at any time?
- How was identification conducted: lineup, mugbook, photo display, etc?
- How long 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?
- 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 and Massey was finally released. Luckily, the witness was open to cooperating with investigators. This case demonstrates the importance of 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 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)
- Gross, Samuel R. "Convicting the Innocent", Annual Review of Law and Social Science, Vol. 4: 173-192 (Volume publication date December 2008)
- 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
- 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
- Sandra Guerra Thompson, "Judicial Blindness to Eyewitness Misidentification", Marquette Law Review, Forthcoming, U of Houston Law Center No. 2009-A-35
- 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
- Fisher, Stanley "Eyewitness Misidentification Reform in Massachusetts", Working Paper Series, Public Law & Legal Theory Working Paper No. 07, 2007
- 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