Eyewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing, playing a role in more than 70% of convictions overturned through DNA testing nationwide.
When Witnesses Get It Wrong
In case after case, DNA has proven that eyewitness identification is frequently inaccurate. In the wrongful convictions where eyewitness misidentification played a role, the circumstances varied substantially. For example, the Innocence Project has worked on cases in which:
- A witness made an identification in a “show-up” procedure (where witnesses are shown only the suspect at the scene of the crime or in another incriminating context) from the back of a police car hundreds of feet away from the suspect in a poorly lit parking lot in the middle of the night.
- A witness in a rape case was shown a photo array where only the photo of the person that the police suspected was marked with an “R”, while the rest were unmarked
- Witnesses substantially changed their description of a perpetrator (including key information such as height, weight and presence of facial hair) after they learned more about a particular suspect.
- Witnesses only made an identification after multiple photo arrays or lineups — and then made hesitant identifications (saying they “thought” the person “might be” the perpetrator, for example) – but at trial the jury was told the witnesses did not waver in identifying the suspect.
Decades of Solid Scientific Evidence Supports Reform
In October of 2014, the National Academy of Sciences (NAS), the nation’s premier scientific entity, issued a groundbreaking report settling many long-debated areas of police practice. The report identified a set of reform procedures, which have been promoted by the Innocence Project since the inception of its work in this area of police practice.
In 1907, Hugo Munsterberg published On the Witness Stand, in which he questioned the reliability of eyewitness identification. When Yale Law professor Edwin Borchard studied 65 wrongful convictions for his pioneering 1932 book, Convicting the Innocent, he found that eyewitness misidentification was the leading contributing factor of wrongful convictions.
Research illustrates that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. In eyewitness identifications, witness memory is impacted by a variety of factors that occur from the time of the crime onwards, and their memories can be easily contaminated.
Hundreds of scientific studies (particularly in the last three decades) have affirmed that eyewitness identification is often inaccurate and that it can be made more accurate by implementing specific identification reforms.
Reforms and Solutions
Several easy-to-adopt procedures have been shown to significantly decrease the number of misidentifications. In order to prevent additional additional wrongful convictions due to misidentification, the Innocence Project is collaborating with law enforcement and policymakers to adopt the following policies:
- Blind/Blinded administration
Blind administration, where the officer administering the lineup is unaware of who the suspect is, can prevent suggestive statements or unconscious gestures or vocal cues that may influence the witness, thereby reducing the risk of a misidentification. For the small police agency with work force constraints, a method called the “folder shuffle” can be utilized to effectively blind the administrator.
- Lineup composition
“Fillers” (the non-suspects included in a lineup) should resemble the eyewitness’ description of the perpetrator. Further, the suspect should look similar to the fillers (for example, he should not be the only member of his race in the lineup, or the only one with facial hair). Eyewitnesses should also not view more than one identification procedure with the same suspect.
The person viewing the lineup should be told that the perpetrator may or may not be in the lineup and that the investigation will continue regardless of the lineup result. This reduces the pressure on the witness of feeling like they have to pick a perpetrator. The witness should also be told not to look to the administrator for guidance.
- Confidence Statements:
Law enforcement should elicit and document a statement from an eyewitness articulating his or her level of confidence in the identification made at the time that the identification is made.
Identification procedures should be videotaped and/or audiotaped whenever possible.
19 states have have implemented these reforms through laws, court action and policy directives, while jurisdictions including Baltimore, Boston, Dallas, Minneapolis, Oklahoma City, Philadelphia, San Diego, San Francisco and Tucson have made eyewitness identification reform procedures part of their standard practice.
National Academy of Sciences Releases Landmark Report on Memory and Eyewitness Identification, Urges Reform of Police Identification Procedures
"Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads" by Gary Wells, et al., Law and Human Behavior.
"Social Influence in Eyewitness Recall: A Meta-Analytic Review of Lineup Instruction Effects" by Nancy Mehrkins Steblay, Law and Human Behavior.
"The Eyewitness Post Identification Feedback Effect 15 Years Later: Theoretical and Policy Implications" by Nancy K. Steblay, Gary L. Wells and Amy Bradfield Douglas, Psychology, Public Policy, and Law.
"The Effect of Suspect-Filler Similarity on Eyewitness Identification Decisions: A Meta-Analysis" by Ryan J. Fitzgerald, et al., Psychology, Public Policy, and Law.