Reducing Wrongful Convictions by Improving Eyewitness Identification

Approved: Dr. Cheryl Banachowski-Fuller Approved: May 09, 2017

A Seminar Research Paper

Presented to the Graduate Faculty

University of Wisconsin—Platteville

In Partial Fulfillment of the Requirement for the Degree

Masters of Science in Criminal Justice

Kelsey L. Henke

May 2017

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ACKNOWLEDGEMENTS

The last two years on the path to earning my Master’s Degree has been one of the hardest things I have done in my life. It has taken an immense amount of strength, communication, time management, and passion to have reached this point. To say I got here alone would just not be true or fair. I could not possibly go on without thanking every professor and staff member at UW—Platteville who has had even the most minor role in my educational journey, but especially Dr. Susan Hilal and Dr. Cheryl Banachowski-Fuller. I have felt incapable and inferior, but your words of advice, persistence, and patience have helped me believe in myself. Thank you for being a great support during the most challenging part of my life. To my number one supporter in my life, my fiancé, Ryan—thank you for being you. You have picked me up when I’ve been at my lowest in the last ten years and pushed me because you believed I could do anything when I didn’t think I possibly could. I’ve made it because of the strength you have helped give me and I hope I can do the same for you. Thank you for being my number one fan and loving all of me with no hesitations. I am amazed by you. To my coworkers and friends—thank you for understanding. I know I have missed many things having to stay up late by myself, occupying my entire weekend with assignments, and putting you second to my education. I owe you so much for kind words, consideration, and acceptance of this wild ride I’ve been on. And especially to Katie and Brooke, for being right by my side during countless hours-long sessions of reading and writing at Starbucks, pushing me to do my best and always being there. To my parents, Mark and Cathi—thank you for believing in me. I did not plan to go back to school so soon, but you encouraged the idea knowing that I could do it. The ability to even be here right now is thanks to your assistance from the beginning of my schooling career. I hope I made you as proud I dream I have.

ABSTRACT

Purpose

This purpose of this research paper is to promote change within the criminal justice system—most specifically law enforcement—in order to decrease the number of individuals that are wrongfully convicted. This paper reviews current policies for eyewitness identification and its effects on convictions in the United States. Eyewitness identification has been used throughout the years as a common way to identify a perpetrator and guide a court case to conviction. Unfortunately, the United States’ criminal justice system is not without flaws and as a result of biased and improper eyewitness identification procedures, there have been many innocent individuals convicted of crimes that they did not commit. Since it has been identified that eyewitness misidentification is a primary source of wrongful convictions, it is necessary that eyewitness identification measures are conducted by police who emphasize being unbiased, fair, and can ensure a just investigation. With improved and universal lineup and identification practices, the number of innocent individuals convicted and imprisoned for crimes they did not commit can decrease and actual perpetrators can be held responsible for their actions.

Methods of Approach

The primary method for collecting data is through a review of secondary sources which include websites, government and agency reports, and recent peer-reviewed scholarly articles. Information was also gathered from agencies such as the Innocence

Project, the National Registry of Exonerations, the Justice Project, and the National

Summit on Wrongful Convictions which are in support of enhanced and reformed

v eyewitness identification conduct. Current policies in Wisconsin are also reviewed with relevance to the audience. These as well as Hennepin County, Minnesota’s policies are used as examples to encourage proper eyewitness identification procedures.

Summary of Findings

The findings show that there is a need for nation-wide change in order to decrease the number of individuals who are arrested, questioned, and ultimately convicted each year and are later found to be innocent. This becomes a case of citizens not receiving due process of law that they rightfully deserve. As part of the Fifth and Fourteenth

Amendments in the United States, everyone has the right to a fair investigation which involves unbiased and truthful professionals. The current research finds that wrongful convictions continue to occur, but the number of exonerations has been rising due to advocacy organizations, Innocence Projects, and Conviction Integrity Units that fight for retrials to help grant innocence to those who have lost much of their life to prison. It is necessary that proper and consistent training be provided to all law enforcement agencies, lineups be conducted double-blind and sequentially, and Conviction Integrity Units be created and implemented throughout the United States in counties with major cities.

TABLE OF CONTENTS

Approval Page

Title Page

Acknowledgements

Abstract

Table of Contents

Section I: Introduction

Statement of the Problem……………………………………………………….....1

Purpose of the Study………………………………………………………………2

Significance or Implications of the Study…………………………………………2

Methods of Approach…………………………..…………………………………3

Section II: Literature Review

Definitions and Statistics………………………………………………………….4

Causes of Wrongful Convictions………………………………………………….6

Improper Practice and its Implications…………………………………………..11

Best Practices in Eyewitness Identification……………………………………...11

How Instructions are Given……………………………………………...14

Blind vs. Double Blind…………………………………………………..15

Sequential vs. Simultaneous……………………………………………..16

Current Exoneration Projects…………………………………………………….18

Section III: Theoretical Framework

Signal Detection Theory…………………………………………………………21

Application of Signal Detection Theory to Eyewitness Misidentification………22

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Labeling Theory………………………………………………………………….23

Application of Labeling Theory to Eyewitness Misidentification……………….24

Section IV: Recommendations to Improve Eyewitness Misidentification

Training…….………………………………………………………………….…26

Conducting of Lineups…………………………………………………………...27

Use of Conviction Integrity Units………………………………………………..28

Section V: Summary and Conclusion……………………………………………………30

References………………………………………………………………………………..31

Section I. INTRODUCTION

Statement of the Problem

The purpose of the criminal justice system is to deliver justice for all by convicting and punishing the guilty and helping them to stop offending, while protecting the innocent. Unfortunately, all systems are not perfect and each has its flaws. Each year, the United States’ criminal justice system makes the mistake of arresting, holding, convicting, and sentencing innocent citizens by mistake. It has been estimated that at least four percent of people on death row are likely innocent and there are several examples of individuals that are pardoned after their execution (Gross, O’Brien, Hu, &

Kennedy, 2014). Fortunately, there are several organizations that exist solely to exonerate or liberate wrongfully convicted people and this has been successful due to things such as DNA identification, laboratory tests, and retrials.

The Innocence Project (2016) has been able to individually discover and exonerate 349 wrongful convictions in the United States. In half of these cases, eyewitness testimony was used as the main piece of evidence against the defendant and led to their conviction. The Innocence Project (2016) also estimates that eyewitness misidentification plays a role in over 70% of exonerations through DNA in the United

States. In a much broader sense, it has been estimated that there have been thousands of individuals throughout history that have been falsely convicted, but may have and the true number may never be known. The National Registry of Exoneration (2016) has a current count of 1,900 total exonerations in the United States and over 500 having partially involved an inaccurate identification of the perpetrator. Clearly this illustrates the need to focus specifically on the role of police officers and how identification

2 procedures are conducted. As the source of a large percentage of wrongful convictions, the most attention must be placed on ensuring eyewitness identification is done in an unbiased and thorough manner.

Purpose of the Study

The purpose of this study is to identify, describe, and analyze different components of police lineups and eyewitness identification. Eyewitness misidentification is the most common cause of wrongful convictions in the United States and accounts for more wrongful convictions than all other causes combined (The Justice Project, 2007;

The Innocence Project, 2016). With this, the goal of the present paper is to recommend effective components of questioning for use by police officers across the country. Each state has different policies and procedures, but it is necessary to implement the same unbiased practices that yield the most accurate results across all locations.

Significance or Implications of the Study

With incorrect eyewitness identification eliminated, a large percentage of wrongful convictions would not occur and hundreds of the correct perpetrators would receive the consequences of conviction instead of innocent individuals. By the correct perpetrator being identified, additional crimes that they may have committed would be prevented. The idea of greatest significance is that innocent lives can be spared from a life of blame and injustice. If convictions are more accurate, citizens can place greater trust in the criminal justice system.

Mathis (2016) writes about a study conducted on 692 wrongful conviction cases over a span of 23 years in California. Results found that taxpayers paid over $220 million in wrongfully convicted cases that were overturned. In addition to these costs,

3 the costs of incarceration for the individuals totaled $80 million, $68 million accounted for compensation provided, and trials and appeals cost another $68 million. These numbers were not separated based on the cause of wrongful conviction, but the cost of 23 years in California totaled over $400 million dollars (Mathis, 2016). Reducing the number of wrongful convictions in each state has the potential of saving hundreds of millions of dollars for taxpayers.

Methods of Approach

The basis of the current paper lies in recent scholarly articles, reports, and organizations’ websites to analyze where errors occur in eyewitness identification and how this can be corrected. Textbooks and articles that discuss the topics of race, emotions, and human memory and its impact on how witnesses select perpetrators in a police lineup will be utilized. This paper will consist of secondary research that aims to discover the reasons behind eyewitness misidentification and how these policies can be improved to prevent it are used as well. The current policies and procedures for eyewitness identification in the state of Wisconsin will be reviewed for its recommendations.

Section II: LITERATURE REVIEW

The following section provides an in-depth examination of wrongful convictions and how they occur in the United States. It begins with a definition of wrongful conviction and a review of its prevalence and how many individuals it has impacted since its first known occurrence. Second, the most-researched causes are included as well as best practice suggestions for law enforcement agencies to encourage the most accurate eyewitness identifications and a reduction in wrongful convictions. Third, the importance of the instructions given to witnesses during lineups, the difference between blind and double blind, and simultaneous versus sequential methods are discussed.

Finally, some of the current national and local innocence projects are described, along with their goals and practices to help reduce and prevent wrongful convictions that occur.

Definitions and Statistics

A wrongful conviction is an instance in which a person accused of a crime is convicted, and as a result of subsequent investigation, it is later proved that the conviction was mistaken. It is very difficult to measure the number of wrongful convictions that have occurred because realizations can be made years or decades later. There are some estimates that are based upon statistics, but it is impossible to know exactly how many wrongful convictions have occurred throughout history. There are some cases that are exonerated after years of requesting appeals and retrials, but exonerations are a fairly new existence with the first occurring in 1989 (Gross, 2012).

As of February 26, 2017, the National Registry of Exonerations (2017) reports that there have been 1,994 known exonerations. In 2017, there has been an average of about three exonerations per week (The National Registry of Exonerations, 2017). In

2016, there was a record-breaking number of 166 exonerations; the rate has been increasing very quickly over the last several years as new technology develops to re-test

DNA and state’s innocence projects continue to develop with local attorneys committing more time to righting wrongful convictions. In 1989, an exoneration case would make news headlines, but now they have become so common that they no longer make national news each time. According to the National Registry of Exonerations (2017), in 2016, of the 166 exonerations, the largest category of the crimes committed were non-violent crimes—a majority of which were for drug possession or sale. Of the 166 exonerations last year, it was later discovered that a record 94 cases did not even occur and there was no crime that was committed. Of the remainder of crimes that did occur, a majority of these were drug cases and many others were sex crimes.

Conviction Integrity Units (CIUs) are relatively new divisions of prosecutorial offices that work to prevent, investigate, and identify false convictions, in addition to prosecuting crimes (The National Registry of Exonerations, 2017). Most CIUs work specifically to investigate alleged wrongful convictions and help put preventative procedures in place (Center for Prosecutor Integrity, 2014). The National Registry of

Exonerations (2017) identifies 29 CIUs in 2016 that have been a great help in exonerating those who have been convicted. Despite the creation of more CIUs in counties across the country and continuing record-breaking rates of exonerations, the number of innocent defendants that are punished remains problematic.

The first CIU was created in 2006 in Texas (Dallas County, 2016). All units are created through local District Attorney’s offices and prosecutors at the discretion of the

District Attorney. A county’s District Attorney has the ability to create specialized units

6 within their office such as sensitive crimes or domestic violence and this can also include a CIU. According to the National Registry of Exonerations (2017), there is no formal review process to guarantee that units are running properly and are being utilized fairly.

To ensure that CIUs are effective, they should be closely involved with innocence projects, public defenders, and defense attorneys in the community.

Further, the Dallas CIU provides a model for other units to ensure the accuracy and justice of cases. It specifically works through cases that may have been wrongfully convicted and also offer advice on cases prior to conviction to help make certain there are no missteps that could prevent a wrongful conviction (Center for Prosecutor Integrity,

2014). The unit also provides training not only to attorneys, but law enforcement as well.

Dallas CIU includes a website that has instructions with instructions on how to submit a claim of a wrongful conviction. They have also decided that their unit works best with local innocence projects and defense attorneys (Dallas County, 2016).

Causes of Wrongful Convictions

It is understandable when confronted with the topic of wrongful convictions that one’s first question would be to ask how something like this could occur with a justice system in the United States that works so hard to ensure integrity and righteousness. The difficult part in answering this question is that it is very complex and each case has entirely different circumstances; mistakes can be made by law enforcement, prosecutors, and witnesses. It is essential to know these challenges, so that they can be overcome in the justice system.

According to the Innocence Project (2016), wrongful convictions tend to occur because of several different things, including eyewitness misidentification,

7 misapplication of science, false confessions, and inaccurate informant testimony. The conviction may be attributed to one or several of these factors. The most common of these is eyewitnesses misidentifying the suspect or suspects (Innocence Project, 2016).

The most pivotal moment in the identification process is when a crime is committed and someone is identified as a suspect by a witness. From there, they can be arrested and potentially convicted (Police Executive Research Forum, 2014). Once a suspect is identified, fewer options are looked into for a potential offender and too much weight is placed on the initially identified individual. Every victim has the right to a fair investigation and it is recommended it should continue beyond the first identification now that it is known how inaccurate eyewitness identifications can be (Justice Project, 2007;

National Registry of Exonerations, 2017).

Eyewitness identification is often thought to be a factor in conviction that is irrefutable; but, it has been the cause of many missteps in the criminal justice system. In fact, eyewitness misidentification accounts for more wrongful convictions than all other causes combined (Justice Project, 2007). The Police Executive Research Forum (2014) has found that police agencies utilize many different procedures in terms of eyewitness misidentification and most do not implement the recommendations that have been given by the National Institute of Justice. Many agencies also do not have written policies for employees to read or refer to. Of the agencies surveyed by the Police Executive Research

Forum (2014) that utilize photo lineups, 68% provide training to their employees on how to conduct the lineups and their procedures. Of those that conduct live lineups, 44% provide their agencies with training. Training is more likely to occur in large agencies

8 with 500 officers or more when compared to agencies with 25 officers or less (Police

Executive Research Forum, 2014).

Within eyewitness identification, there are further reasons for the inaccuracies.

Of all wrongful convictions that have been overturned, 60% of these cases were for Black men (Knuycky, Kleider, & Cavrak, 2013). There have been a plethora of studies done in relation to how one’s race influences facial recognition and it suggests that racial judgments can be influenced by features connected with different face types regardless of race and free from one’s own race bias. This has gone further to reveal that certain features and behavior can contribute to eyewitness misidentification based on specific faces being of a criminal type. More specifically, Black men with stereotypical Black features like dark skin, a wider nose, and full lips are more quickly associated with a criminal than non-stereotypical Black features (Knuycky et al., 2013). Additionally, it has been found that Black men with the previously listed stereotypical features have been more likely to receive the death penalty than those with a lighter skin tone, thinner lips, and a narrower nose when on trial for homicide of a White victim (Knuycky et al., 2013).

Brigham states that apart from physical characteristics, Black people have also grown to hold the stereotype that they are more aggressive and violent criminals than White people

(as cited in Plant and Peruche, 2005).

Knuycky et al. (2013) tested specifically whether the stereotypical faces that they identified would be likely to be incorrectly identified in a lineup. Half of the experimental perpetrators were Black with stereotypically Black features and the other half were nonstereotypical. After viewing a series of photos that may or may not have contained the suspect, eyewitnesses were more likely to mistakenly identify a

9 stereotypical face when the suspect was not present (Knuycky et al., 2013). This presents the suggestion that suggestions are being made for Black people, especially men, and can lead to biased expectations. Correll et al. (2002) found in a computer simulation that students more frequently shot Black suspects when compared to White suspects, believing they saw them with a gun (as cited in Plant & Peruche, 2005). With a similar computer program, Plant and Peruche (2005) had law enforcement of several races and genders simulate the same test to see if they would shoot at someone they believed had a gun. Some photos had a suspect with a gun and others had an object of similar size that was actually a wallet or phone. As found in previous studies, individuals were initially likely to mistakenly “shoot” unarmed Black suspects than White. Fortunately, though, after a debriefing and more exposure to the program, this bias slowly was eliminated.

After several trials, their responses became more accurate and had fewer errors regardless of race or if the suspect had a weapon (Plant & Peruche, 2005). This demonstrates that repeated exposure can be helpful in eliminating implicit bias which can prevent eyewitness misidentification.

The next most common reason for a wrongful conviction is improper forensic science; this can mean a number of different things. Some methods used in forensic investigations are not consistently accurate. One common example is comparing bite marks, but this has been shown to be an unreliable form of analysis (Innocence Project,

2016). The same can be said for shoe prints. Other problems in forensic science are testimonies that exaggerate similarities or downplaying an analysis that shows that the person should be excluded as a suspect. And as always, there is human error which can result in samples being mixed up or specimens being contaminated (Innocence Project,

2016). There is always a chance of lab results being intentionally tampered by an employee as well. These cannot be avoided in any field, but can be accounted for as some of the nation’s wrongful convictions.

Another cause can be attributed to innocent individuals being coerced or threatened to make false confessions or statements that incriminate themselves. Some plead guilty to crimes they did not commit so they can avoid a harsher sentence or the death penalty in worst case scenarios (Redlich, Summers, & Hoover, 2010). False confession police interrogation can be due to a mental impairment, a misunderstanding, fear, or intoxication. Those with cognitive or other mental disabilities may falsely confess because they would like to please authority figures. Others who have the mental capability to understand the situation may confess if the interrogation has been long and they are exhausted or if they believe they may be released after admitting and they can prove their innocence later (Innocence Project, 2016).

Redlich et al. (2010) discuss the prevalence of false confessions and false guilty pleas amongst defendants with psychological disorders; in the criminal justice system and the group of individuals who falsely confess to a crime, many have a mental illness. It is very complicated to find accurate rates of false confessions; this is because if any professional as part of the criminal justice system is aware of a false confession, the defendant would not be convicted. It is known that those with mental health problems are more likely to be arrested, detained, and stay in jail longer (Redlich et al., 2010). And the longer time spent in jail, the more time there is for a false confession to occur. A common reason for falsely confessing at the point of incarceration is to get out of jail or make the interrogation stop. The reasons that people with mental illness are at higher risk

11 for falsely confessing are because they can more easily be manipulated during interrogations and it is not uncommon for mentally ill individuals to repeatedly enter the criminal justice system and jail, thus giving more opportunities for false confessions

(Redlich, Summers & Hoover, 2010). Prior to an interrogation, an individual should be screened for any cognitive impairments or psychological disorders so they can be properly spoken to and not threatened to prevent progression through the investigation process where a false confession or guilty plea may result.

Improper Practice and its Implications

As cited previously, eyewitness identification testimony is often used as convincing evidence against defendants even though the practice has been proven to be incorrect and unsuccessful in convicting the appropriate individuals (Justice Project,

2007). Eyewitness identification is not simply based on memory. Juries are typically willing to accept an eyewitness account especially if the individual presents themselves with confidence and certainty. Police officers and investigators can influence how eyewitnesses respond (Steblay, 2014). A lot of one’s memory of an event is subjected to external influences. Some cannot be helped no matter our attention to the matter; for example, at the time of some crimes, the eyewitness may be too far away, unable to see, or in an environment that provides for poor viewing. This as well as natural similarities between an innocent suspect and the offender can harm the accuracy of the identification

(Bradfield, Wells, & Olson, 2002).

Best Practices in Eyewitness Identification

In police lineups, there is not yet one uniform way to have eyewitnesses identify a suspect or suspects. Typically, a police lineup is comprised of the suspect placed among

12 many other individuals who are not a current suspect and asking the eyewitness if the perpetrator can be identified via photographs or live (Schuster, 2007). This is how the most basic of eyewitness identifications are done, but there are several other different ways that each individual police department may choose to conduct how they do these lineups.

For example, the State Bar of Michigan’s Eyewitness Identification Task Force has written a policy writing guide for individual agencies to ensure suspects and defendants are provided with due process of law and there are no faulty eyewitness identifications. Procedures for both photo and live presentations are supplied. The goal of the State Bar of Michigan (2015) with this guide is to identify an unbiased procedure that can be utilized throughout the nation and give confidence to law enforcement officials while conducting this duty.

At the time of the most recent update in 2015, the suggested procedure in

Michigan is that witnesses should be explicitly read a form that provides clear instructions of what they should expect and sign to state the confidence of their account.

It also states that each lineup presentation should be video recorded with audio so it can be maintained as evidence and presented for any court hearings. If there is any deviation from any of the outlined guidelines, officials are required to provide written explanation for the reason for the deviation. As far as determining which form of lineup should be conducted, officials have the authority to decide whether a photo or live lineup is most appropriate. There is also the suggestion that if at all possible, the administrator and witness should be blind to the suspect’s identity during photo lineups (State Bar of

Michigan, 2015).

The State of Wisconsin’s Office of the Attorney General (2009) has also put out a guide on the preferred policy and procedure for eyewitness identification. It is stated that each individual law enforcement agency in the state of Wisconsin should have written policies for live and photographic eyewitness identification. The purpose of having written policies is to reduce the chances of errors by witnesses and therefore a wrongful conviction. Errors by eyewitnesses are identified to be linked to the administrator unintentionally making suggestions as to the identity of the suspect and relative judgment between potential suspects (State of Wisconsin, 2009).

There are six recommendations given by the State of Wisconsin (2009) to concentrate on these causes. The suggestions for best practice in eyewitness identification are as follows:

1. Administrators of lineups should utilize fillers that are not suspects and whose characteristics do not match those of the perpetrator so as not to be suggestive.

2. The lineup should be done in a double blind fashion to help prevent the administrator from intentionally or unintentionally influencing the eyewitness’s statements.

3. The eyewitness should be instructed that the perpetrator may or may not be a part of the lineup and that the administrator is not aware of the perpetrator’s identity.

4. The perpetrator and participants in the lineup (fillers) should be presented one by one (sequentially) as opposed to all at once (simultaneously). This addresses the problem of relative judgment and encourages eyewitnesses to compare suspects to their memory rather than one another.

5. The eyewitness’s confidence in their statements should be evaluated immediately after they make a statement about identification.

6. Each suspect should be shown only one time to the witness to prevent suggestiveness toward the perpetrator and confusing the witness with several faces.

Seeing the same person repeatedly in a lineup may strike the witness’s memory and cause them to make a connection, believing that they are recognizing the face because the suspect is the perpetrator (State of Wisconsin, 2009).

Both Wisconsin and Michigan recommend that the most accurate way to conduct a lineup is to utilize a double blind method and present the suspects sequentially rather than simultaneously. It is emphasized in both that the different types of lineups— photographic and live—can be appropriate in different situations and it is up to the administrator to decide which is to be utilized. It is promising that states are aware of what can cause errors in eyewitness identification and are therefore motivated to provide law enforcement agencies with guidelines on how to proactively work towards reducing wrongful convictions.

Instructions

The format in which instructions are given have also proven to be important in the accuracy of eyewitness identification (Schuster, 2007). A lot of time can be lost in the process of an investigation if there is an inaccurate eyewitness identification as this is very early in the investigation. Investigators and officers then spend their time building a case on an innocent person while the real perpetrator is likely out in society.

Before a lineup begins, eyewitnesses should be told that the perpetrator might or might not be in the lineup and they do not have to make an identification if they do not

15 recognize any of the suspects or feel uncomfortable making a statement. Witnesses may otherwise feel compelled to choose a suspect just because they feel that they must

(Justice Project, 2007).

The series of statements given by the administrator to the eyewitness can have an effect on how they view the task and the decision they make (State of Wisconsin, 2009).

It is important that the administrator state that the individual they have as the suspect may not be present. They should also be told that they may make an identification, say that they do not know, or refuse to make any decision. These types of instructions provide the least amount of bias and the identification that may be made is completely at the will of the eyewitness. The witness is less likely to look for reassurance or feedback from the lineup administrator and they do not feel that they must make a selection. If a witness believes that they must select someone, they may make the choice and identify an innocent suspect. Additionally, the entire lineup should be documented on tape if at all possible to ensure that procedures are done in a manner that is unbiased and there has been no guiding or leading towards a certain suspect (Innocence Project, 2016).

Blind vs. Double Blind

One of the ways a lineup can be altered is by doing it blind or double-blind. A blind lineup is when the administrator of the lineup is aware of who the suspect is, therefore meaning that only the eyewitness is blind to the identity of the suspect. By using this procedure, the administrator could give clues about the identity of the suspect

(Innocence Project, 2016). This could be by way of gestures, facial expression, tone of voice, or subtle verbal cues. The person administering the lineup may encourage the witness to take their time if they feel they are not focusing on the suspect they have in

16 mind. Any of the clues could be advertent or inadvertent, though. However they occur, this is why most researchers studying eyewitness misidentification suggest utilizing a double-blind format.

In the way of a double-blind lineup, the individual conducting the lineup is unaware of who in the lineup is the suspect. This prevents them from people being able to give any sort of cues to the eyewitness that may urge them to pick the suspect or stray from choosing any of the “fillers.” A double-blind method can guarantee the results of the procedure are unbiased and solely based on the eyewitness’s memory. It is essential for the administrator to make this clear to the eyewitness so there is no suspicion that clues may be given. Departments should always ensure that the administrator of the lineup is not the detective or anyone who has worked specifically on the case (Wells,

Steblay, & Dysart, 2015).

Double blind administration in police lineups is similar to the double blind method used in experiments with prescription drugs. In these experiments, the patient and doctor are both blind to whether the patient has received the actual drug or a placebo.

If the doctor was aware of which pill the patient was being given, they may skew the results of the experiment by unintentionally making suggestions or leading statements. In the realm of pharmaceuticals, double blind procedures have become very common because research has discovered the psychological effects that objectivity can have on an individual (The Justice Project, 2007).

Simultaneous vs. Sequential

Another common way of doing lineups differently is choosing to present the potential suspects simultaneously or sequentially. This can also be done live or with

17 photographs. The most common way out of these two options is doing the lineup simultaneously (Schuster, 2007). This means that the eyewitness views all potential suspects at once and can compare each person against one another and then make a decision based on that. With this type of lineup, witnesses are encouraged to select the person who looks most like the perpetrator. This involves using relative judgment— comparing one person to the next. A problem is posed when the suspect is not in the lineup and the eyewitness will likely choose a filler who looks most like the perpetrator

(Schuster, 2007).

In sequential lineups, each photograph or potential suspect is presented one at a time. This format was introduced following five principles to try to eliminate the witness’s reliance on relative judgment. The principles are as follows:

1. Each individual in the lineup is shown individually.

2. Each individual is only shown once so comparisons cannot occur.

3. The number of potential suspects being shown is unknown to the witness.

4. Witnesses must not change their decision once they have made a choice.

5. The lineup is done in a double-blind fashion.

Each of these principles was developed as part of a sequential presentation of lineups to get fewer incorrect statements from witnesses and a comparison between individuals and one’s memory. In this presentation, there is no pressure on witnesses to choose a certain individual and there are no cues that may be given to them. It has been proposed that the most ideal form of a lineup in regards to accuracy is a double-blind sequential lineup (Schuster, 2007). Schuster (2007) writes that this combination has been

18 done experimentally in a laboratory setting and it produced fewer misidentifications than a blind simultaneous lineup.

Illinois put this practice to work in the field in 2003 and after three years, there were shocking results. Using what they called a double-blind sequential lineup produced a higher rate of misidentifications when compared to a simultaneous lineup. This data was found to be flawed and Hennepin County, Minnesota conducted a similar study at the same time and found different results. Hennepin County’s procedure was a true double-blind sequential lineup using photographs and after a year, results showed that innocent suspects were chosen at a lower rate. They were also able to conclude that viewing a sequential lineup several times reduced accuracy; seeing each individual once produced a more accurate result. This also was cost-effective and police department staff found the protocol easier to follow (Schuster, 2007).

Current Exoneration Projects

One of the most well-known exoneration projects at this point is the Innocence

Project. They are a non-profit organization that has used research outlining eyewitness misidentification as the number one cause of wrongful convictions and work to exonerate individuals that have been wronged by using new DNA testing. The Innocence Project typically focuses upon cases in which DNA is available to be tested or retested, but works with clients whose cases do not have this availability. Legal professionals work specifically for exoneration of individuals who have been in prison for years or even death row. They have also made it their duty to educate others on the importance of this issue and advocate for the wrongfully convicted even after the exoneration has been completed (Innocence Project, 2016). It is their mission to “free the staggering number

19 of innocent people who remain incarcerated, and to bring reform to the system responsible for their unjust imprisonment” (Innocence Project, 2016).

There is the national level innocence project, and states have their own. For example, the Wisconsin Innocence Project is based out of the University of Wisconsin’s

Law School. They have very similar goals of freeing innocent people and helping to reform the system, but they also seek to educate students who will be future lawyers that will have this awareness as they begin their career in the system. Since it was founded in

1998, the Wisconsin Innocence Project has freed twenty wrongfully convicted people in the state of Wisconsin. While they focus on cases in the state, they offer to assist in cases all over the country (University of Wisconsin Law School, 2017).

Apart from assisting clients with legal action and helping obtain a retrial, innocence projects around the country also fight for change in legislation related to wrongful convictions and push for keeping evidence preserved so it can be available for retesting if needed after conviction. Without these laws, evidence can be destroyed, given back to victims or witnesses, lost, or forgotten. In the concern of convictions that utilize DNA, samples and evidence must be stored properly and legal personnel need to be given access to it so it can be retrieved if needed (Weathered, 2003).

Conclusion

The awareness of wrongful convictions has increased drastically over the last several decades and this has likely played a part in the large number of exonerations that occur each year according to the National Registry of Exonerations (2017). The occurrence of inaccurate eyewitness identifications and therefore wrongful convictions are been a topic that has encouraged much research and this has uncovered many

20 different causes. By knowing the most common reasons for eyewitness misidentification, state governments have been able to provide suggestions for individual agencies within the area to combat wrongful convictions.

Section III: THEORETICAL FRAMEWORK

There are a couple of theories that can be used to explain why wrongful convictions occur. There have, however, been few studies connecting wrongful convictions with different theories of crime. In the proceeding section, two different theories of crime will be explored and applied to wrongful conviction.

Signal Detection Theory

The signal detection theory was developed between the 1940s and 1950s by

Wilson Tanner, David Green, and John Swets to study the behavior of someone observing a signal in the presence of vague stimuli (Clark, Benjamin, Wixted, Mickes, &

Gronlund, 2015). The accuracy of a decision depends on the intensity of the given stimulus and the physical and psychological state of the individual. Another component that can affect the ability to detect a stimulus is the individual’s expectations. In a classic signal-detection test, the goal is for the observer to be able to distinguish if a stimulus is present or not. The participant must respond “yes” or “no” as their choice of if the stimulus is present; they can indicate its presence or lack of presence correctly, “miss” by stating it is absent when it is not, or cause a “false alarm” which means they believed the stimulus was present, but it was not (Lerman, Tereault, Hovanetz, Bellaci, Miller, Karp,

Mahmood, Strobel, Mullen, Keyl, & Toupard, 2010).

Signal detection is used when psychologists want to measure how decisions are made under uncertain conditions. Signal detection theory assumes that the individual making a decision is someone who is faced with a difficult judgment perceptually in an uncertain condition. Typically, mathematics are utilized to calculate proportions of trials of observers’ responses and the results are statistics based upon sensitivity. Signal

22 detection theory can be used to test memory, where participants are given a list to study and then view a new list of these words and additional items and must respond if a word was or was not on the initial list. Results in this type of experiment also are categorized by “miss,” “hit,” “correct rejection,” and “false alarm” (Wixted, 2007).

Application of Signal Detection Theory to Eyewitness Misidentification

Signal detection theory can be applied to eyewitness identification and human memory. In a sequential lineup, an eyewitness is to compare their memory of the suspect from the event to the individuals in front of them and must decide to identify someone, if at all, as the perpetrator. As previously discussed, eyewitness misidentification is the most common cause of wrongful convictions in the United States (National Registry of

Exonerations, 2016). They may falsely identify an innocent individual and are therefore failing to identify the perpetrator.

There are some instances in which the suspect will easily Figure 1: (a) Distributions of match to memory for identification of guilty and innocent match the witness’s memory, but other times the brain may suspects and (b) distribution of apparent guilt of defendants (Clark et al., 2015). fail to store or be able to retrieve the information needed to make an accurate identification. The signal identification theory posits that for each suspect in a lineup, witnesses make their decision based on a relatively straightforward rule: if the comparison between their memory of the suspect and the visual during a lineup is somewhat high, they will identify them as the perpetrator. If the comparison is below the specific criteria, they will not identify the perpetrator; for graphical representation, see Figure 1 (Clark et al., 2015). It is very important to take into

23 consideration the effect that an inaccurate identification can have legally on the identified suspect; the results of eyewitness identifications can provide enough evidence for an arrest to be made, a search warrant to be given, and can distinguish between a plea or trial.

In addition to the component of comparing a potential suspect to one’s memory, the presence of extraneous influences at the scene of the crime can influence the witness’s ability to make an accurate identification. For example, having longer to study something makes it easier to recognize something that is previously seen or heard.

Additional factors affecting accuracy are the witness’s distance from the perpetrator, visibility (fog, light, precipitation), and distractions like a crowded area, a noisy environment, or the feeling of stress and anxiety. The last factor that can lead to complications in the ability to make an accurate identification is if the perpetrator is wearing anything that makes it difficult to see their identity such as sunglasses, a hat, loose clothing, or a wig.

Labeling Theory

The labeling theory started to develop by Émile Durkheim, a French sociologist, in his book titled Suicide, released in 1897. The theory developed further by Howard

Becker in the 1960s as a proposition that one’s self-identity and behavior can be influenced or determined by the terms used to describe or categorize them. A large component of the labeling theory is that crime focuses on the tendency of majorities to give negative labels to minorities or anyone else who is deviant from the majority’s standard. Durkheim suggested that the labeling of deviant behavior may be a way to satisfy society’s need to control the behavior of the minority (Restivo & Lanier, 2015).

As previously discussed, individuals have inherent biases that drive them to naturally make judgments based on things like race and gender. In one’s mind, a group of people can be assumed as criminals based on previous experience and generalization.

Labeling theory is typically applied to crime, mental health, and addiction. In its most simplistic sense, it proposes that the negative labels that individuals are given influence their behavior and push them to conform to the judgment. Labeling theory also suggests that deviance can be prevented by limiting the reaction of those who label others and becoming more tolerant (Restivo & Lanier, 2015). The labels often thought of and researched are “mentally ill,” “criminal,” and “felon” and the influence these have on individuals. When an individual commits a deviant act, this can be considered primary deviance. Following this, secondary deviance can occur; this is stage of deviant identity formation in which the deviant label becomes a part of one’s self and can affect the individual long term (Liberman, Kirk, & Kim, 2014).

Application of Labeling Theory to Eyewitness Misidentification

Throughout history, as well as more recently, there has been a common perception that minority communities are violent, deviant, and strongly associated with crime. Given the same scenario, someone may have the expectation of a more harsh punishment for stereotyped groups rather than majority groups due to judgments. This racial bias contributes and perpetuates an inequality in society and promotes unequal treatment based on race or ethnicity. Research has shown that there is a stereotypical connection between race and someone’s memory for who is holding a weapon, how they perceive someone’s aggression, and seeing non-weapons as weapons (Eberhardt, Goff,

Purdie, & Davies, 2004). Blacks especially are associated strongly with crime and this connection seems to be automatic.

Eberhardt et al. (2004) discuss the process of automatically stereotyping and state that just seeing someone can lead an individual to associating them with an entire host of concepts about their racial or ethnic group. Seeing a Black man can bring about thoughts of him being violent and criminal; thinking this way makes these stereotypes more available and can push someone, such as an eye witness, to see anything they do as aggressive, make assumptions, and even see something harmless as a weapon. Eberhardt et al. (2004) sought to discover how much of an association between crime and Blacks would create more of an attentional bias towards the faces of Black males. It was found that participants more quickly attended to a Black face when presented with the concept of crime. Blacks were considered criminal and when thinking of crime, participants quickly thought of Black faces (Eberhardt et al., 2004).

The results of the previous study show how easy it can be for eyewitnesses when presented in a lineup to make an inaccurate identification because of an unintentional bias towards Blacks and crime. Despite trying to be as fair and accurate as possible, the biases are involuntary and are housed deep in one’s subconscious. If eyewitnesses misidentify perpetrators and select an individual of a minority race, this perpetuates the stereotype and makes it easier for future witnesses, law enforcement, attorneys, and juries, to make an incorrect judgment. The labeling theory also presents the idea that as a group is negatively labeled, they are more likely to meet the expectations of the disapproving majority and further satisfy the stereotype, called secondary deviance. This

26 can make it more difficult for others to try to set aside biases to make an accurate identification.

Section IV: RECOMMENDATIONS TO IMPROVE EYEWITNESS

IDENTIFICATION

The current models for conducting lineups and using eyewitness identifications as evidence are not proving to be successful as eyewitness misidentification continues to be the number one cause of wrongful convictions (Justice Project, 2007). Therefore, there must be widespread change in the form of training, conducting of police lineups, and enactment of local Conviction Integrity Units to ensure the identification of wrongful convictions, correct the misconduct, and prevent future wrongful convictions. The following section will go in-depth into the aforementioned changes that are necessary in order to right the wrongs of the American justice system and ensure true perpetrators are receiving consequences as opposed to an innocent suspect.

Training

According to Police Executive Research Forum (2014), less than three-quarters of agencies that conduct photo lineups are provided training on lineup procedures. Even fewer (44%) are provided trainings on live lineups and this may be provided by the agency or from local prosecutors. Training to law enforcement members and lineup administrators is less likely to occur in smaller agencies with fewer officers (25 or less) than in agencies with several hundred officers. Less than 10% of all agencies that participated in a study with Police Executive Research Forum (2014) received training on how to create live lineups. While it is very beneficial for the agencies that receive training, it is apparent that trainings are not streamlined and consistent from agency-to- agency or even state-to-state. It is also difficult to ensure accurate outcomes with training being provided by different trainers. It is important to create a standard for training

28 guidelines, providers of training, and making sure that 100% of agencies that conduct lineups, either live or with photos, are given training.

Conducting of Lineups

There has long been debate about the most accurate way to conduct live and photo lineups—whether this be with sequential or simultaneous lineups. It has been recommended that the more accurate way to conduct police lineups is to use a sequential, double-blind procedure with clear instructions to provide for the least amount of bias by the administrator as possible (Steblay, 2014). The purpose of this combination of procedures is to make sure the eyewitness is relying on comparisons of suspects to their memory rather than between suspects and to make sure the administrator has as little ability to provide voluntary or involuntary hints to the identity of the perpetrator. Steblay

(2014) also notes that using the sequential format—whether live or with photographs— decreases the likelihood that an eyewitness will falsely identify the perpetrator if the perpetrator is not presented in the lineup. This is identified as a false alarm and is decreased by 23% when a sequential format is used as opposed to simultaneous. The individual is less likely to use pick their “best guess” because they are not able to compare suspects and rather must use relative judgment.

Based on these results, it is suggested that each state implement their own standard procedure and policies for lineups and either choose for local prosecutors to implement the state-wide, agreed-upon trainings or identify an agency or group of agencies to do so. While this may be more time-consuming and will certainly require more attention to the training process, a trained group of officers is more likely to be fair,

29 impartial, and well-educated on the impact a police lineup has on the remainder of the court process and the devastating effects if done improperly.

Use of Conviction Integrity Units

Conviction Integrity Units (CIUs) have been quickly created all over the country since the first was founded in 2007 in Dallas, Texas. According to the National Registry of Exonerations (2017) there was an increase in the number of CIUs developed and the number of exonerations that involved CIUS in 2015 and 2016 (as cited in Scheck, 2017).

The name itself, conviction integrity, states that the unit’s purpose is to ensure that convictions are honest and fair. As of 2017, there are more than 2,300 District Attorney’s offices in the United States (Bureau of Justice Statistics, 2017). While this is a very large number, only a couple of dozen CIUs exist within these prosecutors’ offices. Despite this small ratio, these units alone accounted for almost 40% of the nation’s exonerations

(National Registry of Exonerations, 2016). Having CIUs has shown that they are capable of exonerating more wrongfully convicted individuals through the teamwork of prosecutors, district attorneys, law enforcement, and local innocence projects. It is not a new phenomenon for these types of professionals to work towards righting wrongful convictions, but it is new for there to be individuals who do just that. Right now, CIUs tend to be at a county level, but their rapid growth in the last several years is promising that new units will be formed and therefore, the number of exonerations will grow.

Having CIUs in counties with major cities across the country would give greater accessibility for those who may suspect they have been wrongfully convicted.

Not only do CIUs accept, investigate, and fight wrongful convictions, but they are large sources of outreach and education for others to become aware of the problem that is

30 wrongful convictions. They are a combination of proactive and reactive actions by also offering training on wrongful convictions to attorneys and law enforcement and reviewing patterns in wrongful conviction cases to help prevent them from occurring in the first place. It is a crucial step to involve and catch the attention of the county’s

District Attorney; their awareness to the problem is a step in the direction of establishing local CIUs.

Section V: SUMMARY AND CONCLUSION

Based upon the current statistics showing the high prevalence of wrongful convictions and the study of common causes, it is clear that there is a need for change within the policies and procedures for eyewitness identification. The current procedures used to identify perpetrators have failed many individuals in terms of wrongful convictions by a legal system that is in place to be fair, just, and equal. As detailed by the signal detection theory and labeling theory, the innate application of relative judgment and unintentional bias towards different races and genders can have a strong effect in the misidentification of perpetrators by eyewitnesses. To address the main cause of wrongful convictions, the following are recommended: proper and consistent training be provided to all law enforcement agencies, lineups be conducted double-blind and sequentially, and

Conviction Integrity Units be created and implemented throughout the United States in counties with major cities.

There will likely always be wrongful convictions, but there is hope that with the recommended changes in state policies and streamlined procedures that are consistent across the country, the incidence of wrongful convictions will be greatly reduced and the number of exonerations will continue to rise. It is thanks to research on patterns and causes of wrongful convictions, the creation of CIUs, and the determination of innocence projects that have fiercely investigated and reversed cases that have helped those who have been wrongfully convicted receive the justice they deserve and the entire nation believe in the integrity of the United States justice system.

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