In an ambitious investigative series last week, the Dallas Morning News chronicled the role of eyewitness errors in the alarming number of wrongful convictions exposed by DNA in Dallas County. All but one of the 19 DNA exonerations discovered so far in Dallas involved faulty eyewitness identifications according to the Morning News analysis. The report cited a devastating lack of procedural safeguards as the main reason for the high number of false eyewitness identifications that repeatedly undermined justice.
Despite the vulnerability of eyewitness evidence, an eyewitness identification, especially an identification by the victim, is one of the most compelling types of testimony in the criminal justice system. Even strong evidence of innocence is often ignored when a jury is presented with a victim who is confident in her identification. As a result, prosecutors rely heavily on eyewitness evidence in securing convictions. The Morning News investigation found that prosecutors often went forward with criminal prosecutions with only one eyewitness and weak or non-existent corroborating evidence, because even a single identification is powerful enough for a jury to convict.
The alarming number of false identifications uncovered by this report confirms what researchers have been repeating for years - eyewitness evidence can be unreliable and is highly prone to error. Because victims and other eyewitnesses are often such essential components to solving crimes, we must take steps to prevent false identifications and ensure eyewitness evidence is as reliable as possible. While the DNA exonerations in Dallas have proven that eyewitness evidence can be dead wrong, the good news is that we can enhance the accuracy of eyewitness identifications by making modest changes in the way we collect and document eyewitness evidence.
Traditional procedures for conducting photo and live lineups with eyewitnesses were developed ad hoc over the years, without the benefit of any scientific research. The Morning News identified a variety of current practices and procedures used by prosecutors and law enforcement that actually facilitated false eyewitness identifications. Now that we understand how natural human psychological tendencies can undermine the accuracy of eyewitness evidence, we need to modernize the criminal justice system based on the development of scientific knowledge.
In our publication, Eyewitness Identification: A Policy Review, The Justice Project outlines the current research on the pitfalls of eyewitness identification evidence and recommends best practices that can help law enforcement extract the most reliable evidence from witnesses.
Careful and complete documentation of eyewitness identification procedures is one of the most important procedures Texas must require. We have learned that a victim's degree of certainty regarding an identification can be greatly influenced by reinforcing feedback, such as verbal or non-verbal cues from law enforcement, regardless of whether that feedback is intentional. Because that feedback can lead to distorted evidence, careful documentation of eyewitness identification procedures and the witness's certainty at the time is especially important. Unfortunately, right now most police departments do not have written policies for conducting lineups, and documentation of the procedures is spotty and incomplete. Identifying the perpetrator is an absolutely pivotal moment in a criminal investigation, but this critical episode is rarely documented fully. Without documentation, juries cannot possibly evaluate and properly weigh eyewitness evidence--especially when a witness's degree of confidence is artificially inflated over time by reinforcing feedback from law enforcement.
The scientific research on eyewitness error has also demonstrated that by giving witnesses simple cautionary instructions prior to the lineup - such as a statement that the perpetrator may or may not be included in the lineup, and that the witness should not feel compelled to make an identification--greatly reduces incorrect identifications with no decrease in correct IDs.
Because verbal and non-verbal cues from law enforcement can heavily influence a witness, Texas should require the double blind administration of line ups and photo spreads. This can be accomplished by having the procedure presented by an officer who is unaware of the identity of the suspect or by the use of laptop-administered photospreads.
Because police and prosecutors will continue to rely on eyewitness evidence, reforms must be enacted that account for the known sources of error in eyewitness identifications. Unfortunately, Texas currently has no statewide requirements for eyewitness identification procedures, and the vast majority of departments have no written policies and procedures at all.
Updating and modernizing the procedures used in collecting and documenting eyewitness evidence demands little to no cost to the state, and substantially increases the reliability of this fallible type of evidence. Everyone knows that trace physical evidence can be contaminated and ruined if it is not collected carefully according to a scientific protocol. We now know that the same thing is true of eyewitness evidence. In order to prevent the alarming amount of mistaken eyewitness identifications that lead to wrongful convictions, the legislature in Texas should require jurisdictions to adopt these minimum standards for the collection and use of eyewitness evidence; and in doing so, Texas can join other states like North Carolina, Wisconsin, Minnesota, and New Jersey who have become leaders and models on eyewitness reform.
John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.