The Need for Eyewitness Identification Policies

Alejandra de la Fuente — January 28, 2016 @ 4:00 PM — Comments (0)

Eyewitness misidentification has been a widely discussed topic in terms of wrongful convictions. While it may seem harsh to question a victim about the certainty of his/her identification of a suspect, research does show that mistakes can be made. Human memories are not set in stone, they are malleable and susceptible to influence and alteration.

Eyewitness misidentification is actually the leading cause for wrongful convictions in the U.S. that have been overturned by DNA. Out of those 337 cases that have been overturned by DNA, eyewitness misidentification was responsible for 71 percent of them. In addition, almost half of those DNA exonerations included cross-racial misidentification.

Concern over eyewitness misidentification has garnered increasing attention, so much so that several organizations and individuals have called for much needed reforms. One state that is paying close attention to the numbers is Missouri.

Missouri’s numbers actually exceed the national average. Surprisingly, out of the nine of Missouri’s wrongful convictions that have been overturned by DNA, eyewitness misidentification was involved in every single one. Compared to the national average of 71 percent, Missouri surpasses that number at 100 percent. In addition, out of Missouri’s nine DNA exonerations, cross-racial misidentification was involved in five of those cases. Despite these numbers, Missouri has failed thus far to improve their methods when it comes to eyewitness identification.

A jury instruction presented to the Missouri Supreme Court last month was rejected. This instruction would have informed jurors of scientifically proven factors that contribute to eyewitness misidentification. Although the court did adopt a different set of instructions, they disregard scientific research and do not adequately caution jurors of those factors.

Now, some people are calling on the state’s legislature to pass Senate Bill 842, which would require the adoption of the best techniques for improving eyewitness identification across the state. Those techniques are the same ones the Innocence Project in New York have been urging lawmakers and law enforcement across the county to adopt for the past several years. These suggestions include blind administration, lineup composition, instructions, confidence statements, and recording.

In blind administration, the officer administering a lineup does not know who the suspect is. This could help prevent misidentification because the officer is much less likely to make suggestive statements, unconscious gestures, or vocal cues that may effect a witness’s identification.

In lineup composition, the suspect should resemble the individuals who are not suspects, and those non-suspects should look like the description of the perpetrator given by the eyewitness. In addition, lineups should be performed sequentially, meaning eyewitnesses view individuals or pictures one at a time rather than together to prevent the problem of relevant judgment.

Upon viewing a lineup, the eyewitness should be instructed that the perpetrator may or may not be present and that the investigation will continue regardless of whether or not he/she makes an identification. This could help prevent misidentification because eyewitnesses may not feel pressured that they have to pick a perpetrator. Eyewitnesses should also be instructed not to look at the lineup administrator for guidance.

Eyewitnesses should make a confidence statement once they have made identifications, describing in their own words their level of confidence in their identifications.

Law enforcement should be required to record all eyewitness identification procedures.

Some states and jurisdictions have already adopted and enforced these recommendations. One state that may join them is Nebraska. Similar to Missouri, Nebraska State Senator Patty Pansing Brooks presented Legislative Bill 846 to the Judiciary Committee last week. The bill would create a strict policy for law enforcement agencies to follow when conducting eyewitness identification procedures. Although 60 percent of Nebraska’s law enforcement agencies already have similar eyewitness identification policies in place, requiring agencies both statewide and nationwide to adopt policies is the only way to ensure everyone is doing their part in making sure innocent people do not end up in prison.

Florida, unofrtunately, does not have any uniform policy requirement for the preparation and administration of lineups. A bill to fix this, championed by IPF, was narrowly defeated after passing the Florida Senate in 2011.

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