Ways to Make Eyewitness Testimony More Reliable

Eyewitnesses who take the stand to testify about the identity of a perpetrator are one of the most valuable sources of evidence in the criminal justice system. Often, eyewitness accounts are the only evidence available to help identify and prosecute suspects, such as in cases of a drive-by shooting, robbery, assault, and others. Consequently, it has been of longstanding concern to legal scholars and psychological scientists whether judges and jurors are capable of appropriately evaluating the accuracy of eyewitness accounts.

The Innocence Project was founded in 1992 by Peter Neufeld and Barry Scheck while they were going to school at the Cardozo School of Law. Their mission is to exonerate the wrongly convicted through DNA testing and reforms in the criminal justice system, to prevent future injustice. The first person exonerated by DNA evidence was in 1989. There have been 367 DNA exonerees to date. According to the research of the Innocence Project, 69% of those wrongfully convicted involved eyewitness misidentification. 42% of these cases were a cross-racial misidentification, 32% of these cases involved multiple misidentifications of the same person, and 27% of these cases involved misidentification through the use of a composite sketch. As of July 9, 2018, 130 DNA exonerees were wrongfully convicted for murders. 40 of those cases involved eyewitness misidentifications and 81 involved false confessions.

The Innocence Project has identified standard practices of perpetrator identification and the problems that these practices cause. In a standard lineup, the lineup administrator usually knows who the suspect is. Research suggests that the administrator frequently puts forth unintentional cues to the eyewitness in regards to who they should pick in the lineup. Without guidance from the administrator, the witness commonly assumes that the person who committed the crime is one of the people in the lineup. This can lead to the choice of a person despite being unsure. Many times, the lineup administrator will compose a lineup where non-suspect stand-ins do not match the witness’s description or do not mimic the suspect’s qualities. This can lead to the suspect standing out to a witness because of the structure of the lineup. Typically, the lineup administrator may not extract or record a statement from a witness describing their amount of confidence in identification, as well.

The Innocence Project promotes a range of procedural corrections to improve the validity of eyewitness identification. These improvements have been recognized by police, prosecutorial and judicial experience, as well as national justice organizations, including the National Institute of Justice and the American Bar Association. The merits of these reforms are backed by over 30 years of peer-reviewed comprehensive research. (innocenceproject.org. 2019)

1. The “Double-blind” Procedure/Use of a Blind Administrator: A “double-blind” lineup is one in which neither the administrator nor the eyewitness knows who the suspect is. This prevents the administrator of the lineup from providing inadvertent or intentional verbal or nonverbal cues to influence the eyewitness to pick the suspect.

2. Instructions: “Instructions” are a series of statements issued by the lineup administrator to the eyewitness that deters the eyewitness from feeling compelled to make a selection. They also prevent the eyewitness from looking to the lineup administrator for feedback during the identification procedure. One of the recommended instructions includes the directive that the suspect may or may not be present in the lineup.

3. Composing the Lineup: Suspect photographs should be selected that do not bring unreasonable attention to him. Non-suspect photographs and/or live lineup members should be selected so that the suspect does not stand out from among the other fillers. Law enforcement should select fillers using a blended approach that considers the fillers’ resemblance to the description provided by the eyewitness and their resemblance to the police suspect.

4. Confidence Statements: Immediately following the lineup procedure, the eyewitness should provide a statement, in his own words, that articulates the level of confidence he or she has in the identification made.

5. The Lineup Procedure Should Be Documented: Ideally, the lineup procedure should be electronically recorded. If this is impracticable, an audio or written record should be made.