Eyewitness identification plays a major role in criminal justice proceedings, it is especially crucial where no other evidence (DNA, or forensic) of guilt or innocence exists to aid in the acquittal or conviction of crime suspects (The Justice Project). Unfortunately it is held in high regards by jurors in criminal trials, even when far outweighed by evidence of innocence. Of the more than 200 people exonerated by way of DNA evidence in the US, over 75% were wrongfully convicted on the basis of erroneous eyewitness identification evidence (A.B.A). Because of the weight accorded to eyewitness evidence by judges and jurors, the National Institute of Justice initiated a project in 1998 to research methods to improve the accuracy, reliability, and availability of information obtained from eyewitnesses” (Sarah Hart). Subsequently, research Psychologists have joined in the research “to explore a wide variety of factors that may contribute to mistaken identifications and convictions, including characteristics of witnesses, crimes, and police procedures that can influence identification accuracy” (Penrod). This emphasizes the concern of the Criminal Justice System in finding solutions to the issue of eyewitness misidentification and therefore seeks the best possible measures that would enhance the validation of eyewitness evidence in court proceedings to enable the conviction and/or acquittal of crime suspects.
Eyewitness identification is the process by which an individual(s) who was present during an event is called to testify his/her observation (during the event) by a party in a lawsuit. This compelling process is of three stages: a) perception of an event and central actors to it, b) storage and assimilation of the information obtained from the event, and c) recollection and testimony of aspects of that event. Time delays between the first and third stages can vary greatly. Since this testimony is given by inherently fallible human systems of perception, memory and recall, there is reasonable concern that it may not be quite as accurate as it is often assumed to be, especially by jurors who have relied so much on it over the years in determining cases (Marc Green). Thanks to technological advancement of DNA which has helped to exonerate innocent victims of eyewitness misidentification.
Factors such as poor visibility, faulty memory and identification procedures are common reasons for mistaken identity. Research indicates that in most cases, the combination of factors like unethical police/prosecutorial conducts, ineffective assistance of counsel, knowledge of criminal record, inappropriate use of informants or “snitches”, judicial error, bias or neglect of duty, over eagerness, among others give enablement to eyewitness misidentification (Penrod).
• Poor visibility could be as a result of short duration of the event, bad lightning, and/or far distance which affects perception thereby inhibits recording or encoding of the event.
• Memory can be distorted by (colors, sizes, and even sound); influenced by external forces like (mass media, other witnesses, police, etc), and variant outlook that affect reliability (dull or clear picture).
• Photo identification or lineup tends to create more chances for bias because of its judgmental relativity. From the police instruction to the witness, through the choice of fillers and administration of the lineup/identification, every step of the procedure is crucial to wrongful or correct identification of suspect (Marc Greene).
Since the age-old traditional methods of eyewitness identification have been attributed to the misidentification flaws, the issue here is moderating and implementing the researchers’ best recommendations to eliminate mistakes of human error in the administration of lineup and/or photo identification as much as possible. This moderation according to researchers largely lies on the degree of witness’s perception, memory, and recall (Penrod).
Just as people try to acquire, retrieve and retain information as precisely as they could, certain limitations and influences sometimes restrain the clarity of such information. While there may be legal undertones to the restraints, the natural shortcomings play a major role in eyewitness identifications in the court rooms which lead to wrongful convictions. Memories are not indelible, events stored in the human memory undergoes constant change. There are constant alterations of details in the human memory; while some are simply forgotten others are lost completely and witnesses may still hold on to what’s left in their memories as correct, reliable and valid. This cuts across age, race, ethnicity, class, and backgrounds.
“Witness’s demeanor, capacity, opportunity to perceive, character, bias, prior inconsistent statements, recollection, background, and training are factors necessary to access the credibility of a witness.” Of those factors, the ones that are critical to the witness’s ability to provide visual identification are the witness’s capacity and opportunity to perceive” (The police Chief). In the same Police Chief, an Assistant chief Mike Corley, narrates his experience as a lead investigator in a rape case that occurred in 1985. According to him, the witness/victim was intelligent, and excellent observer (currently employed as a paralegal in a law firm) who supposedly made positive identification of her victim with confidence and no hesitation. The victim did not cover his face at the commission of the crime and the young woman had a “good long look” at the suspect’s face. To the police, it was a legitimate, legal suspect identification until DNA test result exonerated the suspect. Surprisingly, the actual perpetrator was included in a photo lineup where the “intelligent, excellent observer” witness/victim identified the wrong person. This and cases like Manson v. Brathwaithe, 432 U.S. 98 and People v. Kaid Lewis, 20 M.3d 1136(A), 867 N.Y.S2d 377 among others, goes to enumerate the infallibility of human perception, memory and recall and therefore the unreliability of eyewitness evidence.
If therefore the extrinsic (lightening, color, size, etc) play tricks on the intrinsic factors (perceptions, memory, and recall) how reliable then are the protocols, and procedures used in the eyewitness identification process? Though the shortcomings of these factors cannot be elaborately discussed here, it is worth noting that lack of communication, inadequate cautionary measures to witness, choice of fillers, type of administration and presentations of lineup play some roles in wrongful identification of crime suspects (The Justice Project). The wrongfully conviction of Calvin Johnson (ex-convict) and McKinley Cromedy (African Americans) (1983 and 1992) by all white jury are good examples of where the authorities have misused their positions to aid witnesses in wrongful conviction of innocent people. They were identified by the rape victims, with no jury instructions on bias and prejudice that may be embedded in an inter-racial rape in Cromedy’s case. In Calvin case, being an ex-convict and pleading guilty to a burglary charge that occurred the same night of 1981 rape was his first marker of suspicion (The Justice Project). The detectives idea of photo lineup and spontaneous ‘on the street identification’ of Cromedy was a blonder, the choice of all white jury for a black suspect (white victim) coupled with the admissibility of inconsistent identifications of suspect by victims are troubling, prosecutor’s dismissal of the forensic expert’s hair testimony as ‘not a match’ to Calvin’s, and the lack of forensic evidence linking Cromedy to the crime scene, sum up the extent of kangaroo justice that kicks against the Fourth Amendment and usurps human rights while violating the Due Process Clause of the Fourteenth Amendment. Though they were acquitted after serving several years in prison, their cases represent a good number of cases where the “privacy, dignity, and security of persons which should be protected by the Fourth Amendment have been violated by the arbitrary and invasive acts of the government officers or those acting on their behalf.
The police use of “an impermissibly suggestive procedure in obtaining the out-of-court identification” in Manson v. Brathwaithe 429 U.S. 98, (1977) was a case inquiry by the judiciary to determine when due process requires suppression by the Supreme Court. Commendable as it may be, we should look beyond suppression alone since the problem at hand is not only an issue of due process; and having exemplified the arbitration of authority by the government and its agents, I therefore make recommendations in compliance to already available models of researchers on what might reduce the chances of an innocent person being convicted in cases where the only evidence against the defendant consists of eyewitness identification.
Communication: There should be constant and meaningful communication between scientists (researchers) and law enforcement (The Justice Project). Flaws in legal proceedings should be discussed by the mentioned parties so as to bring changes that can improve accuracy and reliability in the criminal justice system.
Expert Testimony: Whenever eyewitness identification is involved in determining cases, there should be expert testimony before the jury, educating them on the factors affecting eyewitness identification accuracy. (a) Witness characteristics play vital role in identification, example age, mood, intoxicated state. (b) Suspect’s characteristics also influence identification. Distinctive features of the suspect like tattoo, scars, body disfigurement can help distinguish and make the offender easily recognizable. (c) Event factors like duration of time, focus, attention, and effects of orders given during the event play important role in identification as well. For instance, if an attacker had a weapon during the event, he may have instructed the victim to lie on the floor, and desist looking at his/her face lest s/he hurts him/her. The first reaction of the victim will be adrenalin rush, followed by the contemplation of the attacker’s next move whether s/he would attack irrespective of compliance to the order. This makes the victim focus more on the weapon than on the attributes of the attacker under the adrenalin rush. This will create more awareness to the jury since eyewitness identification and memory processes are not common knowledge. It will then acquaint them with the knowledge that information/witness rendered should be processed with logical scrutiny. This measure will be very practicable if adopted by the authorities involved; though feasibility also depends on them as well. It will reduce the number of misidentifications (A.B.A).
Cautionary Measures in Identification Procedure
The valid finding of facts requires that outcomes are not contaminated by variables other than the ones being explicitly measured toward expected results. Just like other forensic evidence like DNA, hair, blood among others, can be contaminated by other items or agents, photo spreads and lineups should be independent and unrelated to any other in order to avoid opportunities for a biased result. Research has found that identification is a relative, not an absolute judgment. That is, the witness does not simply compare each picture to memory, making a series of independent yes-no decisions. Instead, the eyewitness looks at all the pictures and then picks the one most likely to be the culprit. Comparisons can create false identification. I therefore recommend:
• Sequential lineup and/or photo spread where fillers are viewed individually not in comparison with others, instead of the traditional simultaneous one where comparisons are made while viewing fillers comparatively at a time.
• The witness should be instructed explicitly that the offender or his/her picture may not be among the alternatives.
• Police should not rely on label. By this I mean; that that someone has committed crime before doesn’t mean that he committed the one under investigation. They should also desist from blowing false alarm to the witness, by announcing that they have their man. This encourages the witness to pick someone even when unsure of the identity of the offender. This will make the investigation more objective.
• There should be double blind eyewitness identification administration which the eyewitness should be made aware of. When the person administering the lineup or photo spread has no knowledge of the suspect among the alternatives, it reduces the chances of tip off from the administrator and its expectations by the witness. This could be difficult to execute where there is shortage of personnel. In that case, where the administrator could be the investigator, lineups and photo spreads should be assigned numbers which should be shuffled in such a manner that the administrator would not view the numbers of each alternative at the same time with the witness until s/he makes a pick.
• The suspect should not be made to stand out among the fillers. Fillers should be selected to fit the description of the witness, and comprised of a sizable array like 8-10. The lineup would be, at best, not a comparison of people vs. memory but rather of people vs. previously seen photographs. In this instance, I would suggest that the fillers in a lineup be made to speak and act out what transpired during the event as narrated by the witness, so that both verbal and none verbal languages exhibited during the event are re-enacted to the witness.
• There should be a clear and detailed documentation of the eyewitness testimony concerning the event and description of the suspect on the first day of the event and the day of identification. Police should use open ended questions during the interview and minimize the use of lead questions (if at all). Any discrepancy in identity detail should be questioned, scrutinized and therefore inadmissible in court as evidence. (If possible, it should be tape recorded or video taped). This will be costly as every witness’s testimony will entail the purchase of tapes. To contribute to this measure, witnesses can volunteer to render empty tapes to the law enforcement officers to facilitate the investigation of their cases. This will help to eliminate guess work during identification and even serve as a deterrent from making bias identification.
In conclusion, implementing the above-enumerated measures will not only reduce the chances of an innocent person being convicted. Instead, it will enhance the conviction of the guilty hence implicitly viewed, one deduces the chaining of social problems (Fine A.G.) and the effects of wrongful conviction of innocent people in a society on social capital (Todd Clear and Dina Rose) of the society which he belongs.
1. When an innocent person is convicted, the case is closed on the grounds that the crime has been solved, while in essence it is an unsolved crime.
2. The innocent person thus treated looses faith in the government that promised him/her freedom, security, equal opportunity and the likes of the Bill of Rights. His/her life goals hangs on the balance and most often jeopardized. S/he becomes a stranger to his/her people even to himself. In short s/he becomes a life tragedy unable to accomplish his/her dreams.
3. Unintended consequences (Fine A.G.) of his/her incarceration reflect in the society he was part of. His/her contributions to children, community, business ceases and his capabilities un-utilized in a society he had made impact in and has more to contribute to.
4. People sensing the injustice mated out to innocent people especially his/her social network, become skeptical of the authority (government) that be and express their frustration by acting out in opposition to formal social order.
In effect, there will be little danger in letting the guilty go free than convicting an innocent person because when a crime unsolved, the suspect is aware that s/he is being sought after and the law enforcement does not relent in investigating the crime no matter how long it takes. But, convicting the innocent sends a different message to the actual criminal that s/he can meander in the society unhindered and commit more atrocities. Such situation poses serious danger in the society as the authority assumes, and makes people believe that the criminal has been apprehended and put behind bars. As a matter of fact, I believe that the authorities that be – police, prosecutors or courts should adopt the recommendations for improved crime solution in the society.