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. (Wells, Nieman Website)
Solutions to Prevent Eyewitness Misidentification
The measures of reform generally include these following factors from the law enforcement standpoint:
- 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)
- 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)
- Clear 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.
Practical Considerations for the Defender (Wells, Nieman Website)
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.
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)
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.
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." - 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: - What elements on the accuracy of the identification does the attorney want to present to the jury? - What specific jury instructions will the trial judge give in relation on identification?
- 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: 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: 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.
Suggesting Reasonable Doubt: 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:
- 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?
- 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?
- 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