EYEWITNESS MISIDENTIFICATION
Mistaken Eyewitness Identification
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. Witnesses feel pressure to identify a suspect and will cue in on the body language and facial expressions of the lineup administrator. 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.
Most of the time when law enforcement shows a suspect to a witness, 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. When fillers are selected that do not resemble the witness’s description, 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 pack or lineup.
Best practices call for the police to document the confidence level of the witness at the time of the identification. 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. Confidence levels often change after the identification is made. It may have been months, or perhaps years, between the time of the original line up or photo identification and when a case goes to trial. During that time span witnesses’ confidence levels may increase, even if they were less sure about their accuracy at the time of the original identification. 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.
On October 2, 2014, the National Research Council of the National Academy of Sciences released a report entitled Identifying the Culprit: Assessing Eyewitness Identification. This report does an excellent job of summarizing what we do and do not know about eyewitness identification testimony, and it offers recommendations on how to collect and use eyewitness identification evidence in cases in which a criminal's identity is in dispute. The Identifying the Culprit report recommends that police use procedures designed to protect eyewitness memories from contamination, and to collect information about the reliability of witness identifications. Specifically, the Report recommends that police departments:
- Train all law enforcement officers in eyewitness identification, focusing specifically on factors that affect vision and memory, and to train officers on procedures to prevent contamination.
- Implement "double-blind" identification procedures in which the officer who administers an in-person or photographic lineup does not know which of the people is the suspect, and thus cannot deliberately or unintentionally influence the witness.
- Develop and use standardized witness instructions at identification procedures.
- Document witnesses' level of confidence in their judgments at the time of the identifications.
- Videotape all identification procedures.
Problematic identification methods can be fixed, but often take public awareness and community support to engage the law enforcement community to reform identification practices to increase the reliability of witness identification.
Mistaken eyewitness identification plays a role in more than 70% of convictions overturned through DNA testing nationwide. According to the Innocence Project data, this is the most common element in all wrongful convictions which are later overturned by DNA. Misleading photo pack and line-up/show-up methods are often used by law enforcement. Rarely do these methods receive serious scrutiny. Best practices to prevent wrongful convictions require that police identification methods are reformed to reduce errors in misidentification.
Misidentification is an issue of public safety, and not just an issue of wrongful convictions. Bad identification practices taint and derail investigations. The actual perpetrator can get away, and then commit more crimes, while the police focus on the wrong person and build a case that eventually leads to a wrongful conviction. In several Kentucky wrongful conviction cases the real perpetrator went on to commit similar crimes because the police built the case around the wrong person.
Regardless of the flaws in the current system of identification, traditional eyewitness identifications remain among the most commonly used evidence brought against criminal defendants. Eye witness identification is compelling evidence when it is presented in court. Even though reform efforts are simple to put into practice and would make identifications far more reliable and reduce the number of wrongful convictions, most law enforcement agencies still use the same error prone methods that have been used for many decades. The most common form of identification is live and photo line ups. Best practices require that police use a blind administrator and specific instructions to increase the reliability of this kind of identification method, but MOST law enforcement agencies do not engage in either of these practices. In many cases victims and eyewitnesses are put under undue pressure when they are not given the proper kinds of instructions, which leads to mistaken identifications. When law enforcement officers do not provide blind administration then subtle cues (whether intentional or not) may be given as to what person should be identified, and this can lead to mistaken identifications.
Other factors increase the likelihood of mistakes. Gaps in the witness’s memory can occur when an identification takes plays days, if not months, after the offense. Pressure from police to fill those gaps can cause the witness to “remember” things that did not happen, things like information that was supplied by the police, or suggested by how the lineup or photo pack is presented to the witness. Psychologists recognize this as "memory reconstruction" and that these memories may not be accurate - but law enforcement still engages in these practices.
Mistakes made because of poor identification methods can be prevented, but often time law enforcement have no policies or procedures to assure that best practices are deployed. Reform in this area is needed to reduce wrongful convictions caused by misidentification.