Research Papers / Eyewitness Identification is Unreliable [3]

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Eyewitness Identification is Unreliable
Eyewitness misidentification has been proven to be the number one cause for wrongful convictions across the nation. . Convictions that have been overturned because of DNA testing, 72% of them were convictions due to wrongful eyewitness identification. Also social science research has proven that eyewitness identification is often unreliable (Innocence Project). There are many causes of eyewitness misidentification from the obvious (lighting, distance, etc.) to the suggestive comments the investigating police pose, to how the human memory works (or doesn't)! There are staggering statistics and extensive research proving how unreliable an eyewitness identification is, yet the justice system has not recognized these facts and still holds an eyewitness identification enough evidence to convict a person. Reforms in our justice system are much needed to stop the convicting of innocent people due to eyewitness misidentification.

Studies have been done to find out how many exonerated cases have been falsely
convicted due to an erroneous eyewitness identification. As a joint project, Michigan's and
Northwestern's law schools conducted a detailed analysis of 873 cases in the National
Registry of Exonerations that discovered 667 (76%) of these cases were wrongful
convictions due to eyewitness misidentification (Gross SR, Shaffer M). Out of the 312
exonerated cases by Innocence Project in the U.S., eyewitness error was involved in 75% of them
(The Innocence Project). These statistics should make everyone take notice especially our justice
system.
Inside these cold statistics is the human element. Derrick Williams of Florida spent 18 years for a rape he did not commit due to an erroneous eyewitness identification. Cornelius Dupree spent 30 years in a Texas prison for a rape and robbery he did not commit largely due to a single eyewitness identification. Johnny Pinchback spent 27 years in a Texas prison for a 1984 rape he did not commit because of a mistaken eyewitness identification (Clare AP). Thanks to DNA testing, these men have been exonerated. There are hundreds more stories that read the same. Even though these men have been finally proven innocent and released from prison, they can never get those years back. Their whole life has been taken from them because our justice system does not recognize the unreliability of an eyewitness identification, let alone make reforms to correct it. How can we honestly convict innocent people knowing how fallible the human memory is and how easily it can be manipulated.

The fallibility of memory has been researched, tested, and proven. The memory does not work like a tape recorder or video camera, but is highly selective and reconstructive. . Memory is selective, because if it were not, "our minds would be cluttered with mental junk - the temperature at noon on Thursday, the price of turnips two years ago, a phone number needed only once." (Wade & Tavris) Recovering a memory is not like playing back a video, it is more like watching a few disconnected frames, and then figuring out what the rest of the scene must have been like. (Wade & Tavris). Psychologist Sir Frederick Bartlett was one of the first scientists to make this point. He had people read unfamiliar, lengthy stories from other cultures, then asked them to tell the stories back to him. As the volunteers tried to recall the stories, they often eliminated or changed details that did not make sense to them, and added other details to make the story coherent. Bartlett then concluded that memory must be a reconstructive process. He stated that we may reproduce simple information by rote, but when remembering complex information, we typically alter in ways that help us make sense of the material, based on what we already know, or what we think we know. Hundreds of studies since, found this to be true for everything from stories to personal experiences to conversation (Wade & Travis)

Because memory is reconstructive, it is also vulnerable to suggestion - to ideas implanted in our minds after the event, which then become associated with it. Elizabeth Loftus and colleagues conducted program of research that lasted over three decades. It showed that memories are influenced by the way in which questions are put to the eyewitness, and by suggestive comments made during an interrogation or interview. In one study, these researchers showed how even subtle changes in the wording of questions, can lead a witness to give different answers. The participants in the study watched short films depicting car collisions. Afterward, the researchers asked some of them about how fast were the cars going when they hit each other. The other viewers were asked the same question but the verb changed to smashed, collided, bumped or contacted. Estimates of how fast the cars were going varied on the verb that was used. Smashed produced the fastest estimates followed by, collided, bumped, hit and contact, the slowest. (Luftus & Palmer 1974).

In a similar study, the participants were asked if they saw "a" broken headlight and the others were asked if they saw "the" broken headlight. The question with "the" presupposes a broken headlight and merely asks if the witness saw it, whereas the question with "a"makes no presupposition. People who received questions with "the" were far more likely to report having seen something that had not really appeared in the film, than those who received questions with "a". (Luftos & Zanni) If a tiny word like "the" can lead people to remember something they never saw, you can imagine how the leading questions of police detectives and lawyers might influence a witness' recall.

Leading questions, suggestive comments, and misleading information affect people's memories not only for events they have witnessed, but also for their own experiences. In a study when people were shown a phony Disneyland ad featuring Bugs Bunny, about 16% later recalled having met a Bugs character at Disneyland (Braun, Ellis & Loftus, 2002). Using several versions of the ad in later studies, the percentages were even higher. Some people even claimed to remember shaking hands with the character, hugging him or seeing him in a parade. These so called memories were impossible because Bugs Bunny is a Warner Bros. creation and would not be at a Disney amusement park!

All the members of the criminal justice system should know and understand the
variables that affect eyewitness evidence (identification). Estimator variables are the things that the criminal justice system cannot control, but none the less, can affect a person's ability to perceive and recall. Someone who is under high psychological stress is less likely to make a

reliable identification later. (APA) The accuracy of identification is decreased by 10% when a weapon is present during an event. (APA) Other estimator variables include the obvious, distance, lighting, and how long the witness viewed the suspect, which are all important also. (APA) The witness's personal characteristics are also important such as age, race bias, or level of intoxication. (APA) Memory decay is inevitable and irreversible. (APA)

System variables are the factors that the criminal justice system can and should control such as photographic or physical line-ups which are responsible for many misidentifications. Studies show that witnesses select the wrong suspect from a photo lineup roughly a quarter of the time. When the suspect is left out of a lineup, witnesses pick an innocent person more than a third of the time-even when told that the suspect may not appear in the lineup. Law enforcement, intentionally or not, can and do give suggestive cues to the eyewitness as to the identity of a perpetrator. It may be a simple nudge when the officer wants the eyewitness to pick a suspect, or maybe the officer simply looks at the suspect more or longer than the other persons in a line-up. For example, a witness in a rape case was shown a photo array where only one photo, the person police suspected was the perpetrator, was marked with an "R."(Innocence Project) A line up may have the suspect stand out in appearance in either a photographic or in-person line-up... Post-identification feedback or confirmation can create a false sense of confidence in a witness. If a witness hears that he or she did a "good job" picking a certain face, even the wrong one, he is more likely to repeat the mistake at trial. For the same reason, multiple witnesses to the same event should be told not to discuss the identification procedure among themselves

Gary Wells, PhD., an experimental social scientist at Iowa State University and a 1999 member of the Justice Dept. panel published the first ever national guidelines on gathering eyewitness testimony. In a 2000, American Psychologist article ((Vol. 55, No. 6, pages 581-598) agreeing with the Justice Dept. report, Wells and his colleagues outlined a number of ways a police can avoid biasing eyewitness testimony.

Reforms as to how a line-up is conducted will help decrease errors in eyewitness identification. A blind administrator is suggested for a photo or live line-up. The police officer conducting the identification line-up will not know the suspect, therefore he will not unintentionally or intentionally give signals to the eyewitness making an identification. Research and experience have shown that the risk of misidentification is sharply reduced if the police officer administering a photo or live lineup is not aware of who the suspect is. (Innocence Project)

The suspects should be dressed just the way the eyewitness described the perpetrator. The suspect should not stand out, such as the only one of his race or the only one in the line-up with a beard. Also, the suspect should not appear in multiple line-ups.

The person viewing the line-up should be instructed that the perpetrator may not be in the line-up and if they do not see the perpetrator that the investigation will go on. These instructions should ease the pressure of the eyewitness to pick anyone, they also should be told not to look at the officer administering the line-up. This will prevent any cues from administrator, although a blind administrator would solve this problem. Identification procedures should be videotaped whenever possible - this protects innocent suspects from any misconduct by the lineup administrator, and it helps the prosecution by showing a jury that the procedure was legitimate.

Research has shown that presenting lineup members one-by-one (sequential), rather than all at once (simultaneous), decreases the rate at which innocent people are identified. Research has also demonstrated that when viewing several subjects at once, witnesses tend to choose the person who looks the most like - but may not actually be - the perpetrator.

Not only law enforcers, but all the members of the justice system, including judges, prosecutors, defense lawyers, and jurors, should be made aware of the unreliability of the memory. It would be important to educate these people on the fallibility of memory, and its affects at a trial.

The Supreme Court set the standard for suppressing eyewitness identification in 1977. Manson v. Brathwaite, 432 U.S. 98 (1977). It has remained virtually unchanged since then.

Under Manson, the court may grant a pretrial suppression hearing on identification if the defendant shows that the police used a suggestive identification procedure, such as showing the witness a single photograph of the defendant instead of a neutral photo lineup. At the hearing, the court weighs the "corrupting effect" of the suggestive procedure against factors affecting reliability: the witness's opportunity to view the suspect, the degree of attention, the accuracy of description, confidence during the identification process, and the time between the event and the identification. The evidence should be suppressed only if there is a "very substantial likelihood of irreparable misidentification." The Supreme Court set the standard for suppressing eyewitness identification in 1977. Manson v. Brathwaite, 432 U.S. 98 (1977). It has remained virtually unchanged since then. (Azar)

In Perry v. New Hampshire, 132 S.Ct. 716 (2012), the US Supreme Court reaffirmed Manson's rule that the defendant must make a threshold showing of suggestive police action before getting a suppression hearing. Suggestive action by private actors, or the presence of other "corrupting" influences, does not warrant suppression as a matter of constitutional right. The APA filed a brief for this case. It explained all the factors that can affect an eyewitnesses' identification. APA wrote the brief summarizing the research articles that show the limitations of eyewitness identification that have been published since 1977, when the U.S. Supreme Court last considered the issue. New Hampshire requires such a review only if police or other state officials use improper tactics to obtain eyewitness identification, but not if suggestive tactics occur otherwise... In Perry, a witness, unsolicited by police, identified the defendant after seeing him through her window standing with the police who were detaining him in handcuffs. Later, the witness was unable to describe him or pick him out of a photo lineup. Still, because the police did not sway her early identification, the court allowed it into evidence. (Azar) This is wrong but sadly, it is the law. The US Supreme Court must recognize that science has progressed, and has proven that eyewitness identification is unreliable. Now it is time for the Court to progress and implement reforms to reduce the thousands of wrongful convictions, due to eyewitness misidentification.

The New Jersey Supreme Court issued new rules that make it easier for defendants to challenge eyewitness identification evidence in criminal cases and require judges to hold hearings on the validity of an identification, if there's suspicion that a witness was influenced in any way. The New Jersey Supreme Court released expanded jury instructions, a new court rule, and a revised court rule relating to eyewitness identifications in criminal cases. The Henderson decision attracted national attention for its review of current scientific evidence that addressed human memory and how an array of variables can affect and dilute memory and lead to misidentifications. To develop the necessary modern standards, the Supreme Court asked the Criminal Practice Committee and the Committee on Model Jury Charges, composed of judges, prosecutors, defense counsel, and other legal practitioners, to draft proposed revisions to the jury charge and submit them for the Court's review. The new jury instructions caution that certain factors about an eyewitness's circumstances at time of the offense could render the testimony less reliable. Those factors include the stress the eyewitness was under, the duration of the event, lighting, distance, the eyewitness's focus on a weapon, and cross-racial identification.

Other factors that jurors will consider include the procedures used by law enforcement during the actual identification process. The instructions require jurors to consider the composition of a lineup or photo array and whether any spoken word or gesture by the police could have suggested a specific defendant.

Under the new rules and jury instructions, factors about the eyewitness's circumstances at the time of the offense, along with law enforcement's behavior when conducting identification procedures, must be weighed by jurors to determine the reliability of eyewitness testimony.

The jury instructions emphasize that any single factor or combination of factors does not mean the eyewitness is incorrect.
"The ultimate issue of the trustworthiness of any eyewitness identification is for the jury to decide," said Chief Justice Rabner. "Only with a fully informed and properly instructed jury can justice be served." (New Jersey Courts Press Release)

Wrongful convictions are a crime themselves. Putting an innocent person in prison for something he did not do is a hideous crime in itself. Do to scientific progress, DNA has exonerated hundreds of innocent people sitting in prison. What is even sadder, is that 75% of these wrongful convictions were due to erroneous eyewitness identification. Scientific progress has also proven the fallibility of memory and identified the factors that can cause eyewitness misidentification. Reforms are so needed in courts across the nation to reflect this information. An outline or guide to these much needed reforms have been introduced by the experts in the field of memory and eyewitness identification. Unfortunately, few courts have applied these reforms. We also forget that not only is a person's life ruined by wrongful conviction due to eyewitness misidentification, but at the same time, the real criminal is running free and committing more of the same horrific crimes. It is not fair to the next victim of the real culprit. New Jersey Supreme Court is the leader in implementing needed reforms to actually make it possible for a fair trial. Reforms in the justice system nationwide will reduce the number of wrongful convictions due to eyewitness identification error.