Is Eye-Witness Identification Reliable or too Suggestive?
Let’s discuss Eyewitness testimony. It can be one of the most powerful influences, persuading juries to move towards a guilty finding. The question is, how reliable are these identifications and can they be trusted? First let’s test our brains, watch this video and let me know how many passes you counted in the comments.
How Many Passes Did You Count?
Okay, that wasn’t very fair now was it?
Here, watch this next witness identification video. It is a little dated, but it does an excellent job at explaining the shortcomings of our brains.
Is Your Memory as Good as You Think?
For most of us that looked like a slam dunk, but it ended as a missed lay-up. We can see how easily our memory can be distorted. We simply cannot remember a picture-perfect image. Distortion can be amplified by other factors such as stress, lighting, suggestibility, and confirmation bias.
The Limitations of Our Brains
There are numerous examples of individuals who were robbed, shot, chased, jumped, or sexually assaulted who are unable to provide any significant description of the suspect. It often brings on skepticism and doubt, but the deeper you recognize the limitations of our brains, the more you can understand why. They are terrified, scared, and stressed. They may place all their focus on a gun, knife, other weapon or even curl up with their eyes closed. It is also not uncommon for individuals to freeze in fear or confusion, contemplating the reality of the situation they are in. Sometimes eyewitness know more than they realize and can instantaneously bring back a memory upon further questioning. For instants an eyewitness could say that they didn’t get a good look at the suspect and don’t know what they were wearing. However, if a more specific follow up question is asked such as were they wearing shoes, and if so what color where they. That may strike a connection in their brain giving you potentially key evidence that would have been missed otherwise.
Confirmation bias is when a witness or victim doesn’t actually get a good look at the suspect and they are faced with the identifying process. They may unintentionally make a selection or be more confident of a selection based off of the reaction of someone else who gives them “confirmation” of their choice. An example would be an officers says “yeah that’s him” after a witness made their selection. Another example is if witnesses are allowed to confer with other witnesses where they all agree upon one individual being the suspect. This could be mistakenly done by having two witnesses together when completing the show up, photo array or line up at the same time. If there are more then one witness they should all be done separately and they should not be allowed to discuss the case.
So the question is what are law enforcement agencies doing to better help reduce the risk of convicting the innocent and putting the bad guys away? Many states are moving towards show up, line up, and photo array instructions that law enforcement have to read to a witness prior completing their identification. These instructions will caution the witness on positively identifying the innocent. An example of some pre-show up is below.
Show up pre- instructions example
- You are going to be asked to view a person;
- The alleged wrongdoer may or may not be the person you are about to view;
- It is just as important to clear an innocent person from suspicion as it is to identify the wrongdoer;
- Regardless of whether you identify someone, we will continue to investigate;
- If you identify someone, I will ask you to state, in your own words, how certain you are.
- If you do select someone, please do not ask us questions about the person you have
selected, because we cannot share that information with you at this time.
- Regardless of whether you select a person or not, please do not discuss the procedure with any other witnesses in the case or with the media.
- Do you have any questions before we begin?
- Do you understand the way the show-up procedure will be conducted and the instructions I have given you?
Witness Signature______________________ Date_______________
Officer Signature______________________ Date_______________
A show up is when law enforcement officers locates a suspect near the scene in a relatively short period of time and brings a witness or victim to the suspect to determine if the individual was the perpetrator. Often the eyewitness is in the back of the cruiser, where they will drive by the individual with the goal of positively or negatively identify the suspect and how certain they are. This is concerning because of the immediate biases that will be present. The suspect may be handcuffed, surrounded by multiple officers, or in the back of a cruiser. You can see how a witness would be more inclined to confirm the suspect as the offender as it appears that the officers “think so too”.
To help reduce the risk of wrongful eyewitness testimony, law enforcement officers are required to follow a set of guidelines. They will read the pre-show up instructions prior to bringing the witness to the individual in question. The suspect should be located within a reasonable period of time to proceed with a show up, otherwise a photo array or lineup is preferred. If available and safe, the suspect should be uncuffed, outside of the police cruiser and surrounded by as few officers as possible. The eyewitness can ask that the suspect put a piece of clothing back on such as a hat. The officers are not to “confirm” or make any statements as to the validity of the eyewitness identification. If asked, the officer can make another pass for the witness to get a better look.
A physical Line up often consist of at least six (6) people including a suspect and five (5) other individuals who are off duty police officers, firefighters, other civilians or offenders already in prison willing to help out in hopes of a reduced sentence. The volunteers must match the description given to the officers by the witness and will line up side by side in a designated room designed for line ups. The witness/victim would be behind a one-way mirror, with the goal of selecting the suspect. The witness could have the suspects speak, put hats on, turn around and do several other activities as long as they are reasonable and can be linked to the crime. For instance, if someone was carjacked by a suspect wearing a ski mask who said, “Don’t move or I’ll kill you”, the witness could ask that all of the individuals in the line up put a ski mask on and say that exact line.
Line-ups are an excellent way of moving forward with a positive identification as it allows for movement, height, size and other factors to come into play. A line up is preferred over a photo array but often requires the consent of the suspect or an warrant by a Judge, complicating the identification process. To reduce biases, the line up should have at least six (6) individuals and should match that of the description given by the eyewitness. For example, you can’t have five (5) males with blonde hair and one (1) male (suspect) with brown hair all be in the lineup. This would of course be too suggestive to the eyewitness and result in the line up being tossed (suppressed) by the courts. It is recommended that the defense attorney be present, to help eliminate any suggestive attributes prior to the start of the line up.
A photo array is when there are printed photos that a witness can go through and select the suspect and how certain they are. This is often completed at the station and less commonly at the victims residence or business. Photo arrays are an common practice used by law enforcement. Many times we are able to identify the suspect through investigation hours, days, weeks, or years later and are now looking for eyewitness confirmation. Photo arrays need little more than the cooperation of the eyewitness as consent of the suspect is not required. Of course, cautionary instructions are given to the eyewitness prior to the start.
The photo array will usually consist of six (6) to eight (8) photos with several parameters such as, no names, no markings and all of the photos should be of the type. For instance, you can’t have seven (7) individuals with RMV photos and the suspect having his prisoner booking photos in the same photo array. Often law enforcement can reach out to their fusion center to request a photo array be completed by them.
To help eliminate any bias, we as officers use what is called blind and double-blind photo arrays.
A blind photo array: is when the photo array is administered by someone who is not part of the investigation and does not know who the suspect is.
A double-blind photo array: is again administered by someone who is not part of the investigation and, they haven’t seen the photo array. The photos are placed in individual folders by the investigating officer which are shown to the eyewitness only and returned to the investigating officer when completed.
The blind and double-blind photo arrays are an exceptional way of reducing the unwanted sounds, motions or indications accidently made by the investigating officer. Each time a photo array, show up and line up is conducted, they need to be entered into evidence by the officer. What happens if they do multiple photo arrays and a line up with the same suspect. The eyewitness may start to have a recurrence bias, thinking the suspect looks familiar. In order to help reduce this effect, we enter all identification procedures including pictures and videos into evidence so they can be examined by the defense attorney.
Overall, eyewitness testimony is a key part of our criminal justice process and won’t be going away any time soon. Absent video evidence, eyewitness testimony is often the only way of identifying suspects. Although it is impossible to eliminate all errors made by the identification procedures, we have come a long way and are working to make it more reliable. So, can eyewitness testimony be trusted? The answer is yes but with skepticism and strong evidence to back up the claim.
Wrongful Convictions Due to Eyewitness Testimony
Eyewitness testimony has led to far too many wrongful convictions, often only cleared due to new DNA technologies years later, where this innocent citizen lost years of their lives for something they never did. It is estimated that eyewitness testimonies are the leading cause of wrongful convictions at 70%. Summaries of 46 Cases in Which Mistaken or Perjured Eyewitness Testimony Put Innocent Persons on Death Row.