THE JUSTICE PROJECT Wrongfully convicted Eyewitness at age 25, Calvin Johnson received a life sentence Identification for the rape of a A Policy Review Georgia woman after four different women identified him. Exonerated in 1999, he walked out of prison a 41-year old man. The true rapist has never been found. Introduction .............................................. 2 Recommendations & Solutions........ 3 Psychological Factors .......................... 4 The Science .............................................. 5 Benefits & Costs .................................... 9 Profiles of Injustice .............................. 10 Snapshots of Success ........................ 15 Voices of Support ................................ 17 Questions & Answers ........................ 18 Statistics .................................................. 19 A Model Policy...................................... 20 Literature ................................................ 24 THE JUSTICE PROJECT INTRODUCTION A measure of fairness and accuracy in the criminal justice system yewitness identification is critical to the appre- While much of the research has been extensively Ehension and prosecution of criminals. Eyewitness documented and peer-reviewed within the scientific evidence can also be an important tool for exonerating community, and the recommendations for reform are innocent suspects. Groundbreaking research on eye- widely accepted by experts in the field, these reforms witness memory over the past three decades, as well as were initially discussed and developed outside the increasing attention to the problems in the cases of realm of law enforcement. wrongfully convicted individuals, has brought the fal- Starting in the late nineties, however, leading libility of eyewitness memory to the fore. researchers joined with law enforcement and legal Eyewitness misidentification is widely recognized practitioners to bridge the gap and comprehensively as the leading cause of wrongful conviction in the address eyewitness identification issues at the inter- United States, accounting for more wrongful convic- section of the two fields. As a result, guidelines and tions than all other causes combined.1 Since 1989, best practices for law enforcement were developed DNA evidence has been used to exonerate nearly 200 with the science in mind. individuals who were wrongfully convicted. Of those, In October 1999, the Department of Justice approximately 75 percent were convicted on evidence released a comprehensive guide for law enforcement that included inaccurate and faulty eyewitness identi- on procedures for obtaining more accurate eyewitness fications.2 In some cases, these inno- cent individuals were misidentified by Eyewitness misidentification is widely recognized more than one eyewitness. In the vast majority of criminal as the leading cause of wrongful conviction in the cases, however, DNA or other bio- U.S., accounting for more wrongful convictions logical evidence is not available to establish guilt or innocence. Given than all other causes combined. the persuasive nature of eyewitness evidence, as well as the inherent danger of misidenti- evidence.4 However, there is no current national pro- fications—both in convicting the innocent and allow- gram or federal agency responsible for educating local ing the true perpetrator to go free—it becomes departments about these reforms—or in assisting with imperative that we take stock of the procedures with- their practical implementation.5 in the control of the criminal justice system that con- Moreover, as reforms are implemented on a juris- tribute to these problems in order to ensure that the diction-by-jurisdiction basis in some states, there most reliable evidence possible makes it into a court- continues to be little opportunity for sharing infor- room and before a jury. mation and perhaps even less incentive, given the A number of challenges emerge in pursuit of a already overloaded criminal caseloads of police, pros- more accurate protocol, none more prevalent than an ecutors and defenders, and the lack of leadership from historical lack of communication between scientists the courts or legislature on the issue. and law enforcement.3 Decades of empirical research This policy review has been designed to facilitate have proven that a number of small changes to iden- communication among local law enforcement agencies, tification procedures can help improve the accuracy policymakers, and others regarding the best practices and reliability of eyewitness identifications, and help and methods for enhancing the evidentiary value of cor- ensure that the highest quality of eyewitness evidence rect identifications and at the same time reducing the is collected. risk of erroneous identifications. By presenting many What’s more, when put to the test in numerous of the successful methods employed in local jurisdic- jurisdictions throughout the country, these reforms tions, as well as the science behind them, we hope to have met with real-life success. Thus, it may seem create a dialogue around recommendations that will surprising that these reforms have not been imple- enhance the quality of evidence relied upon in criminal mented in police districts across the board. trials, as well as confidence in our system of justice. 2 WWW.THEJUSTICEPROJECT.ORG THE JUSTICE PROJECT RECOMMENDATIONS & SOLUTIONS Getting it right the first time handful of specific improvements have emerged Fillers, if chosen correctly, allow authorities to A as pragmatic strategies for minimizing eyewit- judge the reliability of an eyewitness. The effective ness error. While modernizing identification proce- use of fillers is critical to ensuring that an innocent dures to incorporate advances in eyewitness memory individual is not identified simply because of the com- science requires retooling long-standing lineup meth- position of the lineup. ods engrained in police culture, the substantial bene- fits of implementing the protocol are leading more DOCUMENTATION jurisdictions to update their procedures to catch up The identification procedure should be carefully with the science. documented. Documentation includes preservation Because eyewitness evidence, much like trace evi- of photos in a photo array or photographs taken of a dence, is susceptible to contamination, some eyewit- live lineup, recording all individuals present at the ness identification procedures actually increase the lineup, documentation of the witness’ statements risk of false identification. By improving these proce- regarding the lineup members during the procedure, dures in subtle ways, the actual quality of eyewitness and, if an identification is made, documentation of evidence can be improved. the witness’ degree of confidence in the identifica- The following recommendations reflect the con- tion, in the witness’ own words, prior to any feedback sensus in the scientific community — confirmed by from authorities. successful implementation in numerous jurisdictions Careful documentation of the lineup procedures, — as to the procedural changes that will enable law including a witness’ level of certainty that she has cor- enforcement to extract the most reliable evidence rectly identified the perpetrator, when taken immedi- from eyewitnesses for use in a criminal investigation. ately following the identification, helps the jury to These practical changes to the identification assess the eyewitness evidence appropriately and min- process help increase the likelihood of identifying the imizes the effects of reinforcing feedback that can dis- true culprit while enhancing protections for innocent tort the confidence level of an eyewitness between the people accused of crimes. time of the identification and the trial. These reforms are equally effective for photo- graphic lineups and live lineups. DOUBLE-BLIND ADMINISTRATION The person who administers the lineup should CAUTIONARY INSTRUCTIONS not know the identity of the suspect. This proce- Prior to presenting the lineup members, the eye- dure prevents well-intentioned officials from giving witness should be instructed that the perpetrator may inadvertent clues to the witness as to which person or may not be included in the lineup, and that she in the lineup is the police suspect. should not feel compelled to make an identification. Cautionary instructions respond, in part, to the SEQUENTIAL PRESENTATION tendency of witnesses to make a relative judgment The lineup members should be presented to the by removing some of the pressure on the eyewitness witness “sequentially” (one at a time) rather than to choose a suspect when the culprit may not be in simultaneously (all at once). Sequential presentation the lineup. should only occur, however, if the identification pro- cedures comply fully with the double-blind adminis- EFFECTIVE USE OF FILLERS tration recommendation. Only one suspect should appear in each lineup. Presenting the lineup members one at a time to In addition, at least five fillers should be included in a the witness reduces the tendency for witnesses to photo lineup, and at least four fillers in a live lineup. engage in “comparison shopping.” Rather, an eye- The fillers should resemble the witness’ description witness must judge whether each lineup member of the perpetrator, and the suspect should not unduly matches her memory of the perpetrator, as opposed stand out. to making a relative judgment. 3 WWW.THEJUSTICEPROJECT.ORG THE JUSTICE PROJECT PSYCHOLOGICAL FACTORS Preventing unreliable evidence in the courtroom