Eyewitness Report.qxd:Layout 3 - Innocence Project
REEVALUATINGLINEUPS:WHY WITNESSES MAKE MISTAKESAND HOW TO REDUCE THE CHANCE OF A MISIDENTIFICATIONAN INNOCENCE PROJECT REPORTBENJAMIN N. CARDOZO SCHOOL OF LAW, YESHIVA UNIVERSITY
BOARD OF DIRECTORSGordon DuGanPresident and Chief Executive Officer,W.P. Carey & Co., LLCSenator Rodney EllisTexas State Senate, District 13Board ChairJason FlomPresident, LAVA RecordsJohn GrishamAuthorCalvin JohnsonFormer Innocence Projectclient and exoneree;Supervisor, Metropolitan AtlantaRapid Transit AuthorityDr. Eric S. LanderDirector, Broad Institute of MIT andHarvard Professor of Biology, MITHon. Janet RenoFormer U.S. Attorney GeneralMatthew RothmanManaging Director and Global Headof Quantitative Equity Strategies,Barclays CapitalStephen SchulteFounding Partner and Of Counsel,Schulte Roth & Zabel, LLPBonnie SteingartPartner, Fried, Frank, Harris,Shriver & Jacobson LLPAndrew H. TananbaumPresident and CEO,Capital Business Credit, LLCJack TaylorHead of High Yield Debt,Managing Director,Prudential Real EstateBoard TreasurerPaul R.VerkuilOf Counsel,Boies, Schiller & Flexner LLPRachel WarrenM.K. Enterprises, Inc.CONTENTS1. EXECUTIVE SUMMARY.32. HISTORY AND OVERVIEW OF EYEWITNESS MISIDENTIFICATION .63. PROBLEMS WITH TRADITIONAL EYEWITNESS IDENTIFICATION PROCEDURES .104. HOW TO PREVENT MISIDENTIFICATION .165. REFORMS AT WORK .22ENDNOTES.26APPENDIX A:Wrongful Conviction Cases Later Overturned Through DNA TestingWhich Involved Eyewitness Misidentification.28APPENDIX B:Model Legislation: An Act to Improve The Accuracy of Eyewitness Identifications.33
EXECUTIVE SUMMARYEyewitness identification is among the mostprevalent and persuasive evidence used incourtrooms. Eyewitness testimony that directlyimplicates the defendant is compelling evidencein any trial, but it is not error-proof. Jurors maynot realize that confident, trustworthy witnessescan be mistaken. A single witness’s identificationcan be enough to obtain a conviction.Eyewitness identification also plays a key rolein shaping investigations. In the immediate aftermath of a crime, an erroneous identification canderail police investigations by putting focus onan innocent person while the actual perpetratoris still on the streets. Once a witness identifiesthe suspect to police, whether or not that personactually committed the crime, investigators maystop looking for other suspects.Over 175 people have been wrongfully convictedbased, in part, on eyewitness misidentification andlater proven innocent through DNA testing. Thetotal number of wrongful convictions involvingeyewitness misidentifications exceeds this figure,given the widespread use of eyewitness testimonyand the limited number of cases in which DNAevidence is available for post-conviction testing.Experts estimate that physical evidence that canbe subjected to DNA testing exists in just 5-10%of all criminal cases.1 Even among that smallfraction of cases, many will never have the benefitof DNA testing because the evidence has beenlost or destroyed. DNA exonerations don’t justshow a piece of the problem – they are a microcosm of the criminal justice system.Decades of empirical, peer-reviewed social scienceresearch reaffirms what DNA exonerations haveproven to be true: human memory is fallible.2Memory is not fixed, it can be influenced andaltered. After the crime and throughout thecriminal investigation, the witness attempts topiece together what happened. His memory isevidence and must be handled as carefully asthe crime scene itself to avoid forever altering it.The Innocence Project identifies the commoncauses of wrongful convictions across DNAexoneration cases and has found eyewitnessmisidentification to be the leading cause.Innocence Project research shows: Over 230 people, serving an average of12 years in prison, have been exoneratedthrough DNA testing in the United States,and 75% of those wrongful convictions(179 individual cases as of this writing)involved eyewitness misidentification. In 38% of the misidentification cases,multiple eyewitnesses misidentified thesame innocent person. Over 250 witnesses misidentifiedinnocent suspects. Fifty-three percent of the misidentificationcases, where race is known, involved crossracial misidentifications.EXECUTIVE SUMMARY3
Eyewitness misidentification as the leading cause of wrongful conviction compared to other causes(based on the first 239 DNA isidentificationUnvalidatedor ImproperForensic Science In 50% of the misidentification cases,eyewitness testimony was the central evidenceused against the defendant (without othercorroborating evidence like confessions,forensic science or informant testimony). In 36% of the misidentification cases,the real perpetrator was identified throughDNA evidence. In at least 48% of the misidentification caseswhere a real perpetrator was later identifiedthrough DNA testing, that perpetrator wenton to commit (and was convicted of) additional violent crimes (rape, murder, attemptedmurder, etc.), after an innocent person wasserving time in prison for his previous crime.4THE INNOCENCE PROJECTFalseConfessionInformantTestimonyMany of these misidentifications could have beenprevented, many wrongful convictions averted,and many additional crimes avoided if policehad used more reliable lineup procedures.In recognition of this, procedural reforms havebeen developed by leading eyewitness psychologists and successfully implemented by criminaljustice professionals. These reforms have a strongscientific foundation and have been embracedby leading national justice organizations including the National Institute of Justice and theAmerican Bar Association.3 They include: Double-blind presentation: photos or lineupmembers should be presented by an administrator who does not know who the suspect is.
Lineup composition: “Fillers” (the non-suspectsincluded in a lineup) should resemble theeyewitness’s description of the perpetrator andthe suspect should not stand out. Also, a lineupshould not contain more than one suspect. Witness instructions: The person viewing alineup should be told that the perpetrator maynot be in the lineup and that the investigationwill continue regardless of whether an identification is made. Confidence statements: At the time of theidentification, the eyewitness should providea statement in her own words indicating herlevel of confidence in the identification. Recording: Identification proceduresshould be videotaped. Sequential presentation (optional): Lineupmembers are presented one-by-one (by a“blind” administrator) instead of side by side.Several states, cities and towns have alreadyadopted the reforms and found them to becost-effective and easily implemented. Thebenefits are extensive and include reinforcingthe integrity of reliable identifications as wellas reducing the rate of misidentifications.Despite positive feedback from police departmentswhere the reforms have been implemented andmounting evidence of the reforms’ effectiveness,the majority of jurisdictions have maintained thestatus quo. There are no consistent standards foridentification procedures from state to state oreven from one police department to the next.In fact, many police departments do not havewritten procedures for conducting identifications,so there is often inconsistency even within individual police departments. Now is the time forchange. Misidentifications benefit no one: notthe innocent defendants who face incarcerationfor crimes they didn’t commit, not the victimswho are denied justice, not the police officersworking to catch the real perpetrator, and notthe public whose safety is jeopardized when realperpetrators remain at large.This report provides a historical overview of howeyewitness misidentification came to be recognized as a leading cause of wrongful conviction,it examines the shortcomings of traditionaleyewitness identification procedures, and itdescribes how simple improvements to procedures can alleviate the problem, with examplesof cities and states across the country that havesuccessfully implemented procedural reforms.“ It’s incumbent on us that weestablish procedures that makethem [police lineups] more reliable,that law enforcement can count on.If you identify the wrong person,you’re leaving a criminal outthere free and you’re potentiallyconvicting an innocent person.”North Carolina State Rep. Deborah Ross,The Herald-Sun, April 30, 2007EXECUTIVE SUMMARY5
HISTORY AND OVERVIEW OFEYEWITNESS MISIDENTIFICATIONOn December 19, 1974, thousands of viewerswatched a woman being mugged on a New YorkCity television newscast. In a 13-second videoclip, viewers saw a man grab a woman’s purse,knock her down and then run face forwardtoward the camera. After the clip, viewers wereshown a lineup of six men who resembled theattacker and a phone number to call to identifywhich lineup member (if any) was the real perpetrator. Answering the phones were psychologyprofessor Robert Buckhout and his students,who recorded the results as part of a stagedpsychological study on eyewitness identification.“ People tend to think of the abilityto recognize a face as a naturalability. But a criminal situationis totally different than whatpeople generally experience.”Professor Gary Wells: The Innocence Project in Print,Winter 2008Buckhout published the devastating resultsunder the title, “Nearly 2,000 Witnesses Can BeWrong:” He concluded that only 14% of viewersmade a correct positive identification, about thesame amount that would have gotten it right bysimply guessing.4 In terms of the sheer numberof eyewitnesses involved, the experiment wasgroundbreaking. But, in fact, the results were6THE INNOCENCE PROJECTnothing new. Hundreds of witnesses in scores ofother eyewitness identification experiments hadbeen getting it wrong for decades.Hugo Munsterberg, a German-American psychologist, first wrote about the fallibility of witnessmemory a century ago in “On the Witness Stand.”Munsterberg described a fight staged in a criminology classroom in order to test the students’ability to recall the event. One student shoutedan accusation at another who then retaliated.The professor tried to intervene, and a gun wentoff. At that moment, the professor explained theexperiment and asked all the students to writean exact account of what happened.Mistakes were found in every account of theincident, and witnesses were just as likely to getthe important details wrong as they were toget them right. Munsterberg reported: “Wordswere put into the mouths of men who had beensilent spectators during the whole short episode;actions were attributed to the chief participantsof which not the slightest trace existed; andessential parts of the tragic-comedy werecompletely eliminated from the memory ofa number of witnesses.”5Psychological research over the past century hasconsistently shown a high error rate in eyewitnessidentifications. In 1932, Yale Law ProfessorEdwin Borchard cited eyewitness misidentification as the leading cause of wrongful convictions
in his book, “Convicting the Innocent.”6 Sixtyyears later, DNA exoneration cases proved thatBorchard and the psychologists were right.Today, the data subset has multiplied, andevidence from over 175 cases shows that eyewitnesses get it wrong. But why do eyewitnesses getit wrong? And what can be done about it?DNA Exonerations Further Reveal thePrevalence of Eyewitness MisidentificationWhy Eyewitnesses Get It WrongDNA exonerations supported what scientistsand academics had been saying for decades.The cases represented a new, compelling datasubset to support existing research abouteyewitness identification. After all, these weren’tsubjects in scientific experiments; they werepeople with firsthand experience of injustice.To understand the factors affecting eyewitnessidentification, it helps to use the example ofa particular crime and its investigation. LarryFuller’s case exemplifies a range of factors thatcan compromise eyewitness identification. Fullerwas wrongfully convicted of a Dallas rape based,in part, on eyewitness misidentification.The first post-conviction DNA exonerationoccurred in 1989, but it would be years beforepost-conviction DNA testing was widely available.In 1992, the Innocence Project, founded byBarry Scheck and Peter Neufeld, began representing prisoners who could be proven innocentthrough DNA testing. The demand for representation was enormous, and with the help of lawstudents from the Benjamin N. Cardozo Schoolof Law, the Innocence Project set out to fill theneed. By the end of 1995, 28 people had beenexonerated through DNA testing.Case example: Larry FullerSentence Served: 19.5 yearsConviction: Aggravated rapeThe growing, undeniable evidence of wrongfulconvictions spurred a new wave of criminaljustice research. In 1996, U.S. Attorney GeneralJanet Reno commissioned a National Instituteof Justice (NIJ) research report, “Convicted byJuries, Exonerated by Science,” to analyze thecauses of the 28 cases of wrongful conviction.7The only contributing cause common to allcases was eyewitness misidentification. Clearly,the witnesses in all the cases had been wrong.In April 1981, a woman woke up at 6 a.m. to finda man with a knife on her bed. It was 45 minutesbefore sunrise on a foggy day, and the only lightin the room (other than any light from outsidebefore dawn) came from a digital alarm clock.She tried to grab the knife away from the assailant,but he cut her on the hand, the neck and theback and then raped her. He got up and askedthe victim if she had any money and when shesaid no, he fled. The entire incident lasted onlya matter of minutes.The victim initially told police that she could notprovide a description of the perpetrator becauseof the limited lighting. However, two days afterthe rape, police showed the victim six photos ather home. Fuller’s photo was among the six shewas shown. The victim said that he “looks a lotlike the guy,” but could not positively identifyhim. The investigating police officer issued areport recommending that the investigation beHISTORY AND OVERVIEW OF EYEWITNESS MISIDENTIFIC ATION7
“suspended,” noting that the victim “was unsureof the suspect at this time.” The investigationcontinued, however, and police remainedfocused on Fuller.A police officer went to Fuller’s house and tookthree Polaroid photographs of him so that thevictim could see a recent photo of Fuller. He thenwent to the victim’s home to show her a secondphoto array. Fuller’s photo was the only one thatwas repeated in the second photo array.The Polaroid, taken exactly one week after theattack, showed Fuller with a heavy distinct beard.The victim became alarmed that Fuller had a fullbeard, since she had said her attacker did not havefacial hair. Placing her fingers over the bottompart of the photo, to block half of Fuller’s face,she then positively identified him, and he wasarrested. In August 1981, Fuller had a two-daytrial – in which the prosecution said the victim had“never wavered” in identifying him. After deliberating for 35 minutes, the jury convicted him.“ All those years ago, (a Burlingtondetective) was doing his job by thebook – but when I asked him if Idid OK and he told me yes, thenI subconsciously tried to pick thesame person out of the physicallineup. The standard way eyewitness evidence was collected hadfailed me, and because of that,I’d failed, too.”Jennifer Thompson-Cannino, a North Carolina rapevictim who misidentified Ronald Cotton as her attacker.Cotton was exonerated by DNA testing in 1995.Picking Cotton, St. Martin’s Press, 20098THE INNOCENCE PROJECTBecause of how the crime occurred, this identification was compromised before the investigationeven began. The lack of light in the room prevented the victim from getting a clear view of theassailant. The perpetrator had a knife. Studieshave shown that the presence of a weapon increases stress levels and decreases the likelihoodof a reliable identification.8Research also shows that people are less able torecognize faces of a different race than their owndue to a phenomenon known as “own-race bias.”9In this case, the victim was Caucasian and theperpetrator was African-American. In 53% ofwrongful convictions cases involving eyewitnessmisidentification (that were later overturnedthrough DNA testing), the witness and theperpetrator were of different races. These casesstrongly suggest that people of color are morelikely to be wrongfully convicted based oncross-racial misidentification than Caucasians.Cross-racial misidentifications in the DNAexoneration cases involve an African-Americanor Latino defendant 99% of the time, and aCaucasian defendant only 1% of the time.All of these factors – the limited lighting, thepresence of a weapon, the cross-race identification – are “event-related variables.” While thecriminal justice system should take these factorsinto account, and must educate jurors about thescientific research surrounding them, they arenot factors that law enforcement can control.It’s still possible that a witness might be able torecognize an assailant in spite of these eventrelated variables and make a correct identification. However, in this case, law enforcementfurther compromised the identification with itssingle-minded pursuit of Fuller.
Race of the defendant, of those known,in cross-racial misidentifications(based on 78 defendants in cross-racial misidentification casesin the first 239 DNA nRace of the eyewitness, of those known,in cross-racial misidentifications(based on 78 eyewitnesses in cross-racial misidentification casesin the first 239 DNA exonerations)92%Latino1%OtherBecause the victim viewed Larry Fuller’s photoin the first photo array, she was already familiarwith his face when she saw it again in the secondphoto array. Regardless of the fact that Fullerhad a full beard, she recognized him, and therefore identified him as the perpetrator. Theseprocedure-based variables interfered with heroriginal memory by suggesting that Fuller wasthe perpetrator. Rather than helping to uncoverher original memory, police supplanted it witha new one.Although the event-based problems could nothave been prevented, the procedure-basedproblems could have. Sections four and five ofthis report will explore how police can improvelineup procedures to avoid these types of problems and reduce the rate of misidentifications.But first, a closer examination of the problems.Caucasian6%Factors involving law enforcement’s interactionswith the witness, including the lineup proceduresand any questions, suggestions and inferencesthat are made are “procedure-based variables.” 10From the moment an eyewitness interacts withthe criminal justice system, her memory (whichis a form of evidence), is at risk, even from thewell-intentioned questions of law enforcementofficers. Research shows that memory is not like avideo recorder. We neither record events exactlyas we see them, nor recall them like a tape beingreplayed. Instead, each new bit of informationhelps to construct the memory, which can bemanipulated and transformed with even themost subtle cues. Once altered, the originalmemory cannot be restored.11In cases with multiple eyewitnesses, only the witness of a different racewas counted. There were no known cases in which eyewitnessesof multiple different races misidentified the same innocent defendant.HISTORY AND OVERVIEW OF EYEWITNESS MISIDENTIFIC ATION9
PROBLEMS WITH TRADITION
In fact, many police departments do not have written procedures for conducting identifications, so there is often inconsistency even within indi-vidual police departments. Now is the time for change. Misidentifications benefit no one: not the innocent defendants who face incarceration for crimes they didn’t commit, not the victims
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reports, copies of all identification procedures, testimony of the victim(s) and/or witness(es), testimony of all police officer(s) involved in collecting the eyewitness evidence, and any other documentation that is relevant to the eyewitness identification at hand. In this case, I was provided with and have reviewed the following materials: 1.
THE JUSTICE PROJECT WWW.THEJUSTICEPROJECT.ORG 2 Eyewitness identification is critical to the appre- hension and prosecution of criminals. Eyewitness evidence can also be an important tool for exonerating
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