[Part 1 of a series on: The Common Causes of Wrongful Convictions]
Eyewitnesses getting it wrong, resulting in the wrongful conviction of an innocent person, is nothing new. In 1932, Yale Law professor Edwin Borchard wrote the book “Convicting the Innocent: 65 Actual Errors of Criminal Justice”. He found that eyewitness misidentification was the leading factor across the cases that he reviewed.
More than eight decades later, it remains the single biggest problem, contributing to over 75% of wrongful convictions in recent years.
In his dissent to Watkins v. Sowders, 449 U.S. 341 (1981), the late Supreme Court Justice William Brennan observed that “there is almost nothing more convincing [to a jury] than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’”. Brennan noted, how problematic this is, however, stating, “the Court has recognized the inherently suspect qualities of eyewitness identification evidence”, and he described the evidence as “notoriously unreliable”.
Why is it so unreliable?
There are a host of factors that compromise the accuracy of eyewitness identifications. Here are some of them:
- Simple human error. Our brains are highly complex and do not process or store information in straightforward ways that ensure predictably accurate recall.
- Extreme duress on the witness during the crime. This is exacerbated even more when weapons are present.
- Poor conditions for visibility at the scene of the crime, or use of a disguise by the perpetrator such as a mask or wig.
- Pressure to make a positive ID felt by the witness during the criminal investigation.
- A racial disparity between the witness and the suspect.
- A lack of distinctive characteristics of the suspect such as tattoos or extreme height.
- Overhearing comments by other witnesses can have the effect of reshaping memory.
- Poor administration of identification procedures by law enforcement.
This last factor is a prolific problem, but one that States have the power to address by the introduction of some simple uniform guidelines for law enforcement. Several procedures have been positively shown to decrease the number of misidentifications in those States that have adopted them:
Better practices by law enforcement
1. The Elimination of “Showup” Techniques
A “showup” is an identification procedure in which, unlike in a lineup or photo array, the suspect is presented singly to the crime victim. There have been cases when this has been conducted 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, or with the suspect in handcuffs.
2. Blind Administration of Lineups
The officer administering a “lineup” must be unaware of who the suspect is. This is the only way to ensure that they do not indicate the suspect to the witness, either consciously or unconsciously, by comments, word inflection or gesture.
3. Lineup Composition
Those included in a lineup as “fillers” should resemble the eyewitness’s description of the perpetrator, and no one in the lineup should stand out from the other members. Documented cases show that lineups in which a suspect looked nothing like the other lineup members, even having distinctly different facial features, hair, or in some cases being of a different race, have produced eyewitness misidentification that led to wrongful convictions.
4. Instructions to the Witness
It’s vital that the witness viewing the lineup be told: (1) that the person who committed the crime may or may not be in the lineup, (2) that they are free to not identify anyone, and (3) that the investigation will continue regardless of the lineup result. This reduces pressure on the witness by feeling that they have to make a choice, and therefore selecting the person who they think “most” resembles the perpetrator.
5. Confidence Statements
Memory is, to some degree, malleable and studies show that eyewitnesses tend to become more confident of their identification over time, and the more times they see a suspect. A lengthy process of investigation and prosecution can result in the witness having seen the accused multiple times before and during their appearance in court. So it’s important for law enforcement to elicit and document a statement from the eyewitness articulating his or her level of confidence at the time that the initial identification is made.
6. Video Recording of Identification Procedures
Recording protects the integrity of the process, and the universal access that law enforcement has to good equipment today means there is really no good reason for failing to implement this.
None of the above guidelines put an undue burden on police officers or prosecutors, and (apart from the fact that these practices are all recommended by multiple major studies of criminal procedures) they would seem to be simple common sense. And yet, according to The Innocence Project, to date only 14 States have legislated to adopted them.