YourABA September 2012 Masthead

Eyewitness identification: We have
a long way to go

How certain are you that you identified the perpetrator? How closely were you paying attention to the perpetrator in the video? Those were two of the questions posed to attendees at the ABA Annual Meeting program “Eyewitness Identification: A Radically Changing Landscape,” after being asked to pick out the perpetrator in a mock bomb planting.

The audience failed miserably in answering that the perpetrator in the video was not in the lineup at all. But this was only after a segment of the audience was told they had named the suspect. Attendees who were told they had correctly identified the guilty party — even though they hadn’t — expressed a greater certainty and confidence in their identification.

The legal framework of eyewitness identification is flawed, and training for administrators is extremely limited, said panelists Karen Newirth, eyewitness litigation fellow with the Innocence Project; Thomas Sullivan, former U.S. attorney, Northern District of Illinois and partner in Jenner & Block in Chicago; and Sgt. Paul Carroll (retired from the Chicago Police Department) during the ABA’s Individual Rights and Responsibilities-sponsored program.

The Innocence Project has helped exonerate 289 people to date, with eyewitness misidentification being a contributing cause of wrongful convictions in 72 percent of the cases. Of the eyewitness identification exonerations, 141 of 161 — 80 percent — showed evidence of suggestion or unreliability in witness identification in the trial record.

The Manson balancing test, used to determine the admissibility of eyewitness identification evidence, studies whether procedures are impermissibly suggestive, and if so, balances the effects of suggestion against “reliability.” Reliability factors include an opportunity to view, degree of attention of the eyewitness, certainty/confidence in the identification, and the time between the crime and confrontation, among others.

Indeed, identification requires a fragile, three-stage process of memory, storage and recall, Carroll said. A general proposition is that memory declines gradually and steadily, but, in fact, it declines steeply after a very brief time, he continued.

Newirth suggested a new legal architecture, one that eliminates the balancing test; provides juries with proper guidance and a “context” so they can evaluate evidence appropriately; treats memory as trace evidence and shifts the burden of proof to the proponent of the evidence; and uses pretrial admissibility hearings to determine the witness’s reliability by hearing from him or her.

Sullivan called for giving instructions to eyewitnesses before the identification process; implementing double-blind methods in which neither the witness nor the administrator knows the suspect to eliminate the power of suggestion; and using sequential, rather than simultaneous comparisons, so the eyewitness must answer a “yes” or “no” with each member of the lineup rather than making a comparison between all the members of the lineup.

Carroll explained that police administering eyewitness identification tests aren’t properly trained and that police departments don’t have policies regarding the implementation of such tests.

This session was sponsored by the ABA Section of Individual Rights and Responsibilities. Seth Miller, executive director of the Innocence Project of Florida, moderated the program.

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