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)
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)
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)
The variables that cause eyewitness misidentification can be divided into two categories: estimator variables and systems variables. (Innocence Project Website)
- 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.
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)
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)
Academic Papers: 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: 1. Innocence Project Website: (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)