Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.
While eyewitness testimony can be persuasive evidence to a judge or jury, 30 years of strong social science research has proven that eyewitness identification is often unreliable. Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor do we recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.
When witnesses get it wrong
In case after case, DNA has proven what scientists already know – that eyewitness identification is frequently inaccurate. In the wrongful convictions caused by eyewitness misidentification, the circumstances varied, but judges and juries all relied on testimony that could have been more accurate if reforms proven by science had been implemented. The Midwest Innocence Project has worked on cases in which:
- a child witness made an identification after being told that she must look through a magic door and if she didn’t pick the “bad man,” he would go free. She was then shown just two pictures: one of the defendant and one of her relative.
- 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.
- witnesses were presented the lineup together and were able to discuss their thoughts together before they all made an identification. The jury did not hear that the identifications were not independent.
- a witness was presented with a voice line-up in which everyone in the lineup had a Jamaican accent except for the defendant.
Variables impacting accuracy of identifications
Leading social science researchers identify two main categories of variables affecting eyewitness identification: estimator variables and system variables.
- Estimator variables are those that cannot be controlled by the criminal justice system. They include simple factors like the lighting when the crime took place or the distance from which the witness saw the perpetrator. Estimator variables also include more complex factors, including race (identifications have proven to be less accurate when witnesses are identifying perpetrators of a different race), the presence of a weapon during a crime, and the degree of stress or trauma a witness experienced while seeing the perpetrator.
- System variables are those that the criminal justice system can and should control. They include all of the ways that law enforcement agencies retrieve and record witness memory, such as lineups, photo arrays, and other identification procedures. System variables that substantially impact the accuracy of identifications include the type of lineup used, the selection of “fillers” (or members of a lineup or photo array who are not the actual suspect), blind administration, instructions to witnesses before identification procedures, administration of lineups or photo arrays, and communication with witnesses after they make an identification.
Reforms within our region
Research has revealed simple measures that can prevent eyewitness misidentifications. These reform measures 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, and include:
- 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.
- 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. Another is that the investigation will continue regardless of whether an identification is made.
- Composing the lineup: Suspect photographs should be selected that do not bring unreasonable attention to him or her. Non-suspect photographs and/or live lineup members (fillers) should be selected based on their resemblance to the description provided by the eyewitness – as opposed to their resemblance to the police suspect. Note, however, that within this requirement, the suspect should not unduly stand out from among the other fillers.
- Confidence statements: Immediately following the lineup procedure, the eyewitness should provide a statement, in his or her own words, that articulates the level of confidence he or she has in the identification made.
In our five-state area, here is how our states add up:
- Arkansas: In 2012, the Arkansas Association of Chiefs of Police (AACP) released a model policy for eyewitness identification procedures. The model policy includes: blind administration, proper use of fillers, proper instructions to the witness, and witness confidence statements. The AACP policy also includes procedure for show up identifications. Adopted: 2012.
- Iowa has no eyewitness identification reform policy.
- Kansas recently passed eyewitness identification reform in 2016. The legislation, championed by Senate Vice President Jeff King (R-Independence), Sens. David Haley (D-Kansas City) and Jacob LaTurner (R-Pittsburg) and Rep. John Barker (R-Abilene) and endorsed by the Kansas County and District Attorneys Association, the Kansas Sheriff’s Association, the Kansas Police Chiefs Association, the Kansas Peace Officers Association, the Midwest Innocence Project, and the Innocence Project, was signed by Governor Brownback on May 11, 2016. The new law requires all Kansas law enforcement agencies to adopt written policies on witness identification procedures, and recommends that those policies include the four-core best practices listed above. Adopted: 2016.
- Missouri has failed repeatedly to pass any measures regarding eyewitness identification, despite the yearly introduction of a bill by Sen. Joe Keaveny (D – St. Louis). Read the op-ed from MIP Director Tricia Bushnell and Innocence Project State Policy Analyst Amol Sinha regarding Missouri’s failure to act.
- Nebraska passed full reform measures regarding eyewitness identification in 2016. With the Crime Commissions’s approval of a model eyewitness policy including the four-core reforms, Nebraska law now requires every law enforcement agency to have a written policy including these four evidence-based procedures. Adopted: 2016. Read the statute. Read the commission’s model policy.