Eyewitness Identification Reform
Mistaken Identifications are the Leading Factor In Wrongful Convictions
Mistaken eyewitness identifications contributed to approximately 71% of the more than 360 wrongful convictions in the United States overturned by post-conviction DNA evidence.
• Inaccurate eyewitness identifications can confound investigations from the earliest stages. Critical time is lost while police are distracted from the real perpetrator, focusing instead on building the case against an innocent person.
• Despite solid and growing proof of the inaccuracy of traditional eyewitness ID procedures – and the availability of simple measures to reform them – traditional eyewitness identifications remain among the most commonly used and compelling evidence brought against criminal defendants.
Traditional Eyewitness Identification Practices – And Problems
• In a standard lineup, the lineup administrator typically knows who the suspect is. Research shows that administrators often provide unintentional cues to the eyewitness about which person to pick from the lineup.
• In a standard lineup, without instructions from the administrator, the eyewitness often assumes that the perpetrator of the crime is one of those presented in the lineup. This often leads to the selection of a person despite doubts.
• In a standard lineup, the lineup administrator may choose to compose a live or photo lineup where non-suspect “fillers” do not match the witness’s description of the perpetrator or do not resemble the suspect. This can cause the suspect to stand out to a witness because of the composition of the lineup. This unintentional suggestion can lead an eyewitness to identify a particular individual in a photo array or lineup.
• In a standard lineup, the lineup administrator may not elicit or document a statement from a witness articulating their level of confidence in an identification made during the identification process. A witness’s confidence can be particularly susceptible to influence by information provided to the witness after the identification process. Research shows that information provided to a witness after an identification suggesting that the witness selected the right person can dramatically, yet artificially, increase the witness’s confidence in the identification. Therefore it is critically important to capture an eyewitness’s level of confidence at the point in time that an identification is made.
How to Improve the Accuracy of Eyewitness Identifications
The Innocence Project endorses a range of procedural reforms to improve the accuracy of eyewitness identification. These reforms have been recognized by police, prosecutorial and judicial experience, as well as national justice organizations, including the National Institute of Justice and the American Bar Association. The benefits of these reforms are corroborated by over 30 years of peer-reviewed comprehensive research.
1. The “Double-blind” Procedure/Use of a Blind Administrator: A “double-blind” lineup is one in which neither the administrator nor the eyewitness knows who the suspect is. This prevents the administrator of the lineup from providing inadvertent or intentional verbal or nonverbal cues to influence the eyewitness to pick the suspect.
2. Instructions: “Instructions” are a series of statements issued by the lineup administrator to the eyewitness that deter the eyewitness from feeling compelled to make a selection. They also prevent the eyewitness from looking to the lineup administrator for feedback during the identification procedure. One of the recommended instructions includes the directive that the suspect may or may not be present in the lineup.
3. Composing the Lineup: Suspect photographs should be selected that do not bring unreasonable attention to him. Non-suspect photographs and/or live lineup members (fillers) should be selected so that the suspect does not stand out from among the other fillers. Law enforcement should select fillers using a blended approach that considers the fillers’ resemblance to the description provided by the eyewitness and their resemblance to the police suspect. (More detailed recommendations can be provided upon request by the Innocence Project.)
4. Confidence Statements: Immediately following the lineup procedure, the eyewitness should provide a statement, in his own words, that articulates the level of confidence he or she has in the identification made.
5. The Lineup Procedure Should Be Documented: Ideally, the lineup procedure should be electronically recorded. If this is impracticable, an audio or written record should be made.
Which states have implemented these reforms?
24 states have implemented the core reforms promoted by the Innocence Project either through legislation, court action, or substantial voluntary compliance. These states are:
California, Colorado, Connecticut, Georgia, Hawaii, Louisiana, Maryland, Massachusetts, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, Texas, Vermont, West Virginia and Wisconsin.