The “live lineups” we see on television, more often than not the detective or officer working the case presents the witness with a five or six-person photo lineup. One of the people in the lineup is the actual suspect and the rest are what are referred to as “fillers,” all chosen to roughly resemble the suspect. However, decades of research suggest that this traditional method is flawed. Nationwide 75 percent of prisoners exonerated by DNA evidence were convicted on the basis of faulty eyewitness identification. As a result some states and law enforcement agencies across the country are beginning to change their procedures.
While there is still a lot of debate around which methods will lead to fewer faulty identifications, many researchers agree that the most important part of the process is who conducts the lineup and how the photos are presented.
Social scientists say that even the most careful officers can give unintentional cues. Many researchers have found that when someone with no knowledge of the case presents the photo lineup, the witness is less likely to experience unintentional or subtle influences that can lead to mistaken identification. The process is referred to as “blind” since the person administering the lineup does not know which one of the photos is the suspect. A landmark decision by the New Jersey Supreme Court last August, pointed to the importance of using a “blind” process.
More controversial in scientific and law enforcement circles is whether or not the photos should be shown sequentially, that is one at a time, rather than all together. “People are naturally wired to make comparative judgments,” said Gary Wells, a psychology professor at Iowa State University who has been advocating for changes to the police lineup process for nearly 30 years. “For most of the tasks that we encounter, comparisons or judgments work pretty well. But for an eyewitness the question is not who looks most like him, the question is, is that the person?”
Getting the more than 16,000 independent law enforcement agencies across the country to reform is a slow process, in part because many are not convinced the sequential process is the better procedure. While individual law enforcement agencies have changed their policies, currently only New Jersey and North Carolina have statewide mandates that police lineups be conducted blind and sequential.
New Jersey on the way to better jury instructions for eyewitness identifications.
New Jersey may soon become the first state in the nation to adopt comprehensive, scientifically-based jury instructions addressing those variables that can undermine the reliability and accuracy of eyewitness identifications. These instructions – proposed by two New Jersey State Court committees at the direction of the New Jersey Supreme Court – go a long way toward carrying out the New Jersey Supreme Court’s mandate in State v. Henderson, that jurors hearing cases involving eyewitness identification evidence be given all of the necessary information to properly weigh this critical evidence. Comprehensive jury instructions, together with the robust new legal framework adopted by the New Jersey Supreme Court in Henderson (decided August 24, 2011) will offer defendants in New Jersey meaningful safeguards against the leading contributing cause of wrongful convictions: eyewitness misidentification.
Consistent with the New Jersey Supreme Court’s decision in Henderson, the New Jersey Supreme Court Committee on Model Criminal Jury Charges and the New Jersey Supreme Court Criminal Practice Committee drafted and approved proposed revisions to the eyewitness identification jury instructions, which were then the subject of public review. On Thursday, April 5, 2012, the Innocence Project, joined by the American Civil Liberties Union’s Criminal Law Reform Project (ACLU-CLRP) and the American Civil Liberties Union of New Jersey (ACLU-NJ), filed comments to the proposed revised jury instructions.
The Innocence Project, which appeared as a friend of the court in Henderson, was an integral part of the process that ultimately led to the New Jersey Supreme Court’s landmark decision, commended the work of the Committees and hailed the instructions as largely excellent. In the main, the proposed revised jury instructions reflect the vast body of scientific research in the area of eyewitness identification and memory and represent both the letter and spirit of the Court’s decision in Henderson.
The Innocence Project, ACLU-CLRP, and ACLU-NJ were most concerned that the proposed instructions did not include a sufficient description of how memory works, including the stages of memory, and do not indicate that the instructions are the product of research. The Innocence Project, ACLU-CLRP, and ACLU-NJ believe that this information is critical to ensure that jurors understand how specific variables, whether at the time of the crime or the time of the identification procedure, can contaminate a witness’s memory of the event and undermine (or enhance) the reliability or accuracy of an eyewitness identification. This is particularly important because scientific research shows that jurors generally do not understand how memory works or how variables can affect memories. The legal groups also provided specific comments where necessary to clarify a proposed instruction or to ensure that an instruction represents the Court’s opinion in Henderson or the scientific research. Finally, the groups urged the Court to require that whenever a particular instruction is given about suggestive identification procedures, it be given before the first witness testifies about eyewitness identification evidence. We believe that these modest adjustments will improve the excellent proposed revisions drafted by the Committees and will ensure that the jury instructions, together with the new legal framework set forth in Henderson, will help to protect defendants in New Jersey from wrongful convictions based on eyewitness misidentification.
When Memory Commits an Injustice:
Eyewitness mistakes lead to tragic errors in court, but new methods could help.