An Eye for Detail: Reforming Witness Identification Procedures
Posted by Adam Benforado on September 4, 2011
As a number of Situationist contributors have chronicled, bringing research from psychology and neuroscience to legal problems has been met with quite a lot of resistance over the years. One of the major impediments has been that this research often tells us things about ourselves and our system that we do not want to hear.
That said, there have been some success stories and it is interesting to think about the particular circumstances that brought them about. The eyewitness identification revolution is just such an example and, as I’ve argued in a recent article, I think the growing advances in this regard have a lot to do with the ability of eyewitness identification researchers “to apply the insights in concrete ways that do not entirely destabilize or threaten the system”:
In a number of cases, legal scholars have managed to negate the anxiety and discomfort entailed in research that calls into question the legitimacy of our existing institutions, structures, or process of justice, by offering the findings cautiously (such that the footings of our legal system are shaken, but not irreparaly cracked) and by translating studies into readily implementable changes that police departments, courts, and others can implement without throwing their operations into disarray. For example, researchers challenging naïve models of how memory works and suggesting that existing eyewitness identifications were deeply flawed, were subsequently able to offer a set of reforms shown to significantly increase identification reliability, including introducing sequential lineups as an alternative to simultaneous lineups, choosing foils that all match the witness’s initial description of the perpetrator, and having police officers use open-ended questions rather than leading ones.
The practical results have been impressive. In 1999, the U.S. Department of Justice issued an 8000-word national guide on the collection and preservation of eyewitness evidence. Some major police departments, like those in Denver and Dallas, have taken aggressive steps to combat the problem. And in mid-August, the New Jersey Supreme Court issued a sweeping 134-page decision that honestly acknowledged the scope and gravity of the problem:
Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country
As a result, the Court ordered judges to consider numerous problematic factors that can impact of the reliability of witness identifications and to inform jurors of the risks of misidentification.
New Jersey is a leader in the area of criminal law and the hope is that this decision will have a cascading effect.
I am hopeful that the evidence has just become too overwhelming to ignore and that national change is on the horizon. In the last three decades, there have been more than 2,000 studies on eyewitness identifications and the best estimates suggest that roughly a third of the 75,000 annual eyewitness identifications turn out to be wrong. Indeed, University of Virginia Law Professor Brandon L. Garrett has found that there were 190 mistaken eyewitness identifications out of the first 250 DNA exonerations.
Those are shocking statistics, but, in truth, the battle for meaningful reform has a long way to go. The U.S. has more than 16,000 independent law enforcement agencies that deal with eyewitness identifications and many of them are still doing things exactly as they have always done things. The Supreme Court is set to take up its first eyewitness identification case in 34 years this November, but it’s on a limited issue and presents a poor case for the type of sweeping national agenda-setting that is necessary to truly protect the accused.
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Related Situationist posts:
The Situationist 
James Doyle said
In fact the NJ Supreme Court in the 134 page opinion that people seem to find hopeful, expressly rejected the idea that the term “trace evidence” applied to eyewitness evidence is not only a helpful metaphor but an exact description of the physiological basis of memory.