EYEWITNESS MISIDENTIFICATION

THE LEADING CAUSE FOR WRONGFUL CONVICTIONS

Eyewitness identification is based on the reliability of memory—a brain function that is malleable, imprecise, and tends to lose its reliability over time. It can easily be influenced by other memories, biased assumptions, and third party suggestions. These influences can come from media outlets, social media posts, casual interactions with family and friends, and conversations with law enforcement and/or prosecutorial authorities.

Eyewitness misidentification was the leading cause (roughly 72 percent) in most of the 3,640 exonerations in the United States between 1989 and 2024. These misidentifications fall into three categories:

· Misidentifications that were simply tragic mistakes;

· Others were products of deliberate lies by witnesses; and

· Too many others were the direct result of police misconduct.

There are a number of factors that contribute to tragic mistaken identifications. They are:

· Stress: Trauma-related issues produced by both the reality and the psychological impact of having witnessed the crime, particularly those associated with violence.

· Memory: Memory can degrade, distort, and restructure events, particularly those with life-changing impact, as time elapses from event to recall—and an identification memory process can easily be contaminated by photographs, videos, or third party suggestions.

· Distance from crime scene: lighting conditions, physical distance between witness and perpetrator, witness eyesight quality, and whether a weapon was involved which can cause witness to pay more attention to weapon than perpetrator.

· Visibility: weather conditions, angle of view, and duration of exposure under adverse conditions.

· Cross-racial identification: Witnesses are more likely to misidentify person of different race.

· Confidence malleability: Post-identification feedback from authorities, family, and friends can reinforce witness confidence in a less-than-certain crime situation.

As for the other two factors in mistaken identifications, lies and misconduct, Kaitlin Jackson and Samuel Goss released a report, “Tainted Identifications,” for the National Registry of Exonerations in 2016 that offered insight into misidentifications based on these two unsavory factors.

The report found that 26% of the misidentifications involved witness deliberately identifying the exonerees as the guilty parties in crimes committed by other people while another17% involved witnesses who identified individuals for crimes that never happened, mostly in violent crimes. The researchers found the following common patterns in these false misidentifications:

· Misidentifications by witnesses who know the suspect are generally lies.

· Misidentifications by strangers are generally mistakes.

· Police initiated identification procedures, generally in-person or photographic lineups, almost always involve witness who are strangers to the suspect.

· On the other hand, when a witness accuses someone she knows, accurately or not, no identification procedure is held; she simply tells the police who did it. No one needs a lineup to identify (or misidentify) her brother.

Specifically with respect to police misconduct, the researchers found that the police often conduct unnecessarily suggestive lineups where the suspect is shown alone in “showups” and even in lineups in which a much older suspect is placed in a lineup with much younger individuals. These are situations where the police are deliberately trying to skew a lineup to identify the suspect they have in custody. It is a corrupt, not a “bad practice,” identification process designed to secure an identification of a specific suspect.

How does this police misconduct so easily, and frequently, happen?

The researchers offered three different paths:

1. In most cases, the police manipulate an eyewitness into mistakenly believing she saw a suspect she actually didn’t see.

2. Other times, the police convince the witness that they—the police—know the suspect is guilty, which may lead the witness to lie and identify a suspect she doesn’t recognize in order to help the police get a conviction.

3. Some witnesses are induced to lie and identify innocent suspects out of self-interest: they are promised benefits if they do, or threatened with harsh consequences, or both.

The three most common methods the police use to either compel or induce a desired identification were identified by the researchers as:

· Displaying: In 32% of tainted identification, police visually highlighted the suspect in lineups. Some exonerees were put in lineups in which were the only members of their racial groups; others were dressed in prison clothes while he others in the lineup were not, and some made to wear the clothes the perpetrator was described as wearing. Thomas Doswell was picked in a photo lineup in which he alone was holding a billboard with the letter “R” (for rapist) on it. Most false identifications resulting from displaying were mistakes.

· Repeating: In 14% of tainted identifications, the exoneree was displayed to the witness time and again, usually in lineups in which he was the only who was included in multiple presentations. If that happened three or more times before the exoneree was identified, we coded the identification as tainted. For example, the eyewitnesses who misidentified Keith Harris at his trial for robbery and attempted murder saw Harris or pictures of him three times during the investigation—including the last two of seven different lineups the witness viewed—before he finally picked him.

· Lying: In 7% of cases with tainted IDs, police used false information to explain away discrepancies between the suspect and the eyewitness’s initial description. In Albert Johnson’s case, for example, after the eyewitness said that Johnson was too light-skinned to be the perpetrator, a detective told the eyewitness—falsely—that Johnson’s skin had lightened because he spent years in prison with little exposure to the sun. In Todd Neely’s case, the false information was provided visually: The eyewitness described the perpetrator as a 16-year-old, but Neely was older and looked his age—so police placed a high school photo of Neely at 15 in a photo lineup.

All of the identifications used in these three methods examined by the researchers were mistakes.

The Jackson/Goss study is not unique. Countless other studies have recognized the fallibility of eyewitness identifications, especially in cases in which there is no physical evidence to link the suspect to the crime. More than 40 years ago the late Supreme Court Justice William J. Brennan stated, there is “nothing more convincing [to a jury] than a live human being who takes the stand and points a finger at the defendant, and says ‘That’s the one!’”

Eyewitness identification is by no means a gold standard of guilt; it is a copper standard at best.