“There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one,’” wrote the late U.S. Supreme Court Justice William J. Brennan Jr. in a 1981 dissent.
The identification of eyewitnesses plays an important role in the investigation and prosecution of crimes; in fact, studies show that eyewitness identifications are the second most persuasive type of evidence to a jury (behind confessions). But based on first-hand experience through our own cases coupled with decades of research into eyewitness identification, we know that eyewitnesses often make mistakes– many of which have serious consequences, such as the wrongful imprisonment of innocent people.
There are a number of factors that make eyewitness identifications unreliable. Below we will discuss three of the most common reasons victims make inaccurate identifications.
- Memories are not exact replicas of elapsed events. The brain does not work like a video recorder. Our perception of an event can be incomplete and faulty. It deteriorates and can be contaminated as we store it, and each of our attempts to recall it can lead to even further distortion.
- Witnesses or victims of crimes often experience extreme stress both during the time of the crime and in the identification process, which can alter the accuracy of identifications. This is even more true when a weapon is involved in the crime.
- The witness or victim is of a different racial background than the person being identified. This kind of identification is called cross-racial identification, and there is considerable evidence demonstrating we are poorer at identifying people of a different race than ourselves making this kind of identification especially unreliable.
It is important to note that victims rarely make an inaccurate identification purposely or malevolently. Most victims genuinely believe the person they picked out is the actual perpetrator and that confidence adds another layer to this complex problem.
While we can’t improve human memory, there are ways to increase the likelihood of accurate eyewitness identifications. Over the past few years, more states, including Georgia, have agreed to reform traditional procedures in an attempt to make eyewitness identifications more accurate by implementing some “best practices” such as:
- The “Double-blind” Procedure/Use of a Blind Administrator: In a “double-blind” lineup, neither the eyewitness nor the person administering the lineup knows who the suspect is. This prevents the administrator from intentionally or inadvertently providing cues to influence the eyewitness.
- Instructions: A series of statements is issued by the administrator of the lineup to the eyewitness to deter the eyewitness from feeling compelled to make a selection and also to prevent the eyewitness from looking to the administrator for feedback during the process. One of the recommended instructions includes the directive that “the suspect may or may not be present in the lineup.”
- Lineup Composition: When selecting photographs for suspect identification, photos should be chosen that do not bring unreasonable attention to the suspect. Non-suspect photographs and/or live lineup members, also known as fillers, should be selected so that the suspect does not stand out among the other fillers. Fillers should be selected based on fillers’ resemblance to the description provided by the eyewitness and their resemblance to the police suspect.
- The Lineup Procedure Should Be Documented: It may seem like a no-brainer, but there should be a record of the lineup procedure (ideally, an electronic recording).
- Confidence Statements: The eyewitness should provide a statement in their own words immediately following the lineup procedure, which demonstrates the level of confidence he or she has in the identification that was made.
Note: The level of impact that a confidence statement has on identification accuracy is debated by experts who argue that confidence is not correlated with accuracy and can easily be manipulated by other factors. However, confidence is used as a partial litmus test to judge the accuracy of identifications in standards laid out in many state courts and the Supreme Court.
As of February 2023, there are 27 states that have enacted core eyewitness identification reforms – either through legislation, court action, or voluntary compliance.
GIP Cases Involving Eyewitness Misidentification: