A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Bill Babcock
Pennsylvania Innocence Project

For 30 years, courts across the country have followed guidelines handed down by the United States Supreme Court in deciding whether an eyewitness’ identification of a stranger should be admitted in evidence during a criminal trial. No evidence is more convincing to a jury than a person pointing at a defendant in court and identifying him as the person who committed the crime. But the Court was concerned that the witness could seem positive yet be mistaken, resulting in the conviction of an innocent person. The guidelines required since then purport to determine whether the witness’ identification is reliable. But these guidelines have failed to keep up with science.

At about the same time the Court issued its guidelines, scientists started studying human memory–how it works, how it can be affected, and how to preserve it. What we have learned about human memory runs counter to what most of us believe we know: memory is not a video tape — we cannot simply replay an image over and over perfectly; memory can be tainted in innumerable ways and, once tainted, cannot be recovered; and well-meaning people can absolutely believe their identification of another person as the perpetrator of a crime is correct, yet be absolutely wrong.

Eyewitness identifications are a critical part of criminal investigations and prosecutions. They are also the leading cause of wrongful convictions, accounting for 75% of all convictions of innocent people. Over 200 people have been proven innocent after conviction through DNA evidence, although some witness took the stand at a trial and declared under oath she would “never forget that face.” As the New York Times reported on August 28, about 75,000 witness identifications take place each year, and studies suggest that about a third are incorrect. Our legal guidelines have failed.

The New Jersey Supreme Court issued a landmark decision requiring major changes in the way courts must evaluate identification evidence at trial and how they should instruct juries.  The new changes, designed to reduce the likelihood of wrongful convictions by relying on scientific findings regarding human memory, require judges to expand the factors courts and juries should consider in assessing the risk of misidentification.   
The court’s decision adopts a Report issued by a court-appointed Special Master charged with reviewing the legal standards for admitting eyewitness testimony at trial to determine whether they make sense in light of proven scientific facts. The Special Master heard from 7 experts on human memory and considered over 200 scientific studies before releasing his report finding that legal standards for admissibility had failed to keep pace with science and had to be extensively revised.

Based on solid scientific research, the court decision will require judges to ask more scrutinizing questions during pre-trial hearings looking at a police identification procedure, such as a lineup or photo array, before allowing the evidence before a jury. Among the factors courts should consider include:

• Whether the procedure was administered by an officer who did not know who the suspect was.

• Whether the witness was told the suspect may not be in the lineup and that they need not make a choice.

• Whether, at the time of the incident, the witness was under a high level of stress or a weapon was used or the perpetrator wore a disguise.

• Whether the incident was cross-racial.

The New York Times article reported that, although some states are studying revisions or require single changes in procedure, only two — New Jersey and North Carolina — mandate the two practices that researchers regard as most important: lineups that are blinded, that is, administered by someone who is not familiar with the suspect and who is not one of the primary investigators on the case; and photo arrays that are presented sequentially rather than as a group. Both practices, studies find, decrease the pressure on witnesses to pick someone and guard against influence.

Model policies for changing lineup procedures have been created by professional organizations like the International Association of Chiefs of Police, and in 1999, the National Institute of Justice released guidelines that were sent to every police department in the United States. But the New York Times article cited only two large police departments, in Dallas and Denver, that have already made changes. In the case of Dallas, the changes came in response to several DNA exonerations that revealed mistaken identifications.

While steps are being taken in a handful of jurisdictions to ensure that eyewitness memory is preserved as accurately as possible, Pennsylvania has yet to engage in such systematic review.
But the tide is turning on at least three fronts:

• The Pennsylvania Supreme Court is considering whether to allow expert testimony on eyewitness memory at trials so jurors can understand the factors that go into memory and how a memory could be truly believed, yet incorrect.

• Later this year, the Advisory Committee on Wrongful Convictions will issue its report after five years of work looking into updating our criminal justice system to ensure it is working to, not only free the innocent, but correctly convict the guilty. The Advisory Committee’s recommendations are expected to include the proper preservation of eyewitness testimony.

• And, even without the recommendations of the Advisory Committee, many of Pennsylvania’s law enforcement agencies already are revising their policies for eyewitness identification procedures to make sure that an eyewitness’ memory is preserved without contamination or taint.

As we await the report from the Advisory Committee, we hope that Pennsylvania will continue to take the steps necessary to ensure that law enforcement agencies and the courts do their best to avoid mistaken identifications and secure reliable ones.


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