Eyewitness identifications are an important component of U.S. criminal investigation, particularly in those phases of the trial process involving evidence, prosecution, and plea negotiation (Sporer, Malpass, and Koehnken 1996). In fact, evidence provided by eyewitnesses is sometimes the only evidence linking a suspect to a crime (Sporer, Malpass, and Koehnken 1996). For that reason, eyewitness identifications are controversial because, although some witnesses may be confi dent about their description of a suspect, there are inherent witness-based problems in face-recall techniques, which may limit the ultimate effectiveness of most systems in current use (Sporer, Malpass, and Koehnken 1996). Moreover, from the point of view of criminal investigation, accurate face recall is of considerable importance, not only because the penalties for crime in the United States range from probation to death but also because show ups, lineups, and photo arrays rely solely on the accuracy of face recall to build a case.
Eyewitness misidentification is the single most significant factor behind wrongful convictions in the United States. According to the Innocence Project, it has played a role in over 75 percent of convictions that subsequently were overturned on the basis of DNA evidence (Innocence Project).
Issues involving eyewitness testimony, specifically the reliability of eyewitness testimony, can be divided into two categories: (1) errors in describing the actual event and (2) errors in describing the persons involved. Problems in the latter category focus primarily on eyewitness identification of suspects that necessitates a reliance on face-recall data to connect the specific characteristics of suspects’ faces with the events of a crime.
I. Face Recall
II. A Case Study
III. Procedural Issues between Cops and Prosecutors
IV. The Science of Memory
VI. A Key Moment
VII. Important Persons and Legal Decisions
Generally speaking, people tend to process faces holistically. This means that the faces we encounter form an impression in our minds that incorporates the major details of the faces as well as where the specific features on a face are configured to make a person look the way that he or she appears to us in our recollection. The width of a person’s face, the length of the nose, as well as the distance between a person’s eyes, for example, are processed together as a combination of features that is then recorded as an image taking into account the relationship of the features to one another. In a recognition task, witnesses are presented with a target and search their store of faces until a response of familiarity is evoked. Such familiarity can easily be confused with recall from the actual features of the person who was viewed at the crime scene.
The task of face recall is generally much more difficult than that of recognizing faces, and this difficulty may well be exacerbated by techniques that require the witness to select items from a set of pictorial illustrations and assemble them into a picture of a whole face. The two aspects of the task—decomposition of a holistic image into elements and visual scrutiny of pictorial elements—may each interfere with the witness’s ability to maintain a visual image of the face she or he is trying to recall (Innocence Project).
Therefore eyewitness identifications must be viewed cautiously (Terry 1994).
A Case Study
Jennifer Thompson (Doyle 2005), the first victim in the court’s narrative, is blonde and tiny, five feet tall, weighing 100 pounds. She speaks quietly and ends her sentences with the rising, interrogative lilt characteristic of girls raised in the South. It is easy to see the traces of her upbringing as the adored daughter of suburban North Carolina business executives.
But it is easy to see something else in Jennifer’s interview, too: the iron resolve with which she survived her attack and pursued her attacker and the unflinching honesty with which she is determined to tell the story of the assault and its aftermath. During the rape, her mind was racing:
-At that point, I realized that I was going to be raped and I didn’t know if this was going to be the end, if he was going to kill me, if he was going to hurt me and I decided that what I needed to do was outsmart him. Throughout the evening, I would turn on lights, even if it was just for a second, and he would tell me, “Turn the lights off.” And at one point, he bent down and turned on my stereo and a blue light came off of the stereo and it shone right up to his face and . . . and I was able to look at that. When I went into the bathroom, I turned the light on and he immediately told me to shut it off , but it was just long enough for me to think, “Okay, his nose looks this way” or “His shirt is navy blue, not black,” little, brief pieces of light that I could piece together as much as I could piece together.
Jennifer escaped to a neighbor’s house and was taken to a local hospital emergency room, where a rape kit was prepared. There, she was interviewed for the first time by Burlington police captain Mike Gauldin. The qualities that strike a viewer watching Jennifer’s interview struck Detective Gauldin during their initial encounter: “She was so determined during the course of the sexual assault to look at her assailant well, to study him well enough so that, if given an opportunity later, she would be able to identify her assailant,” Gauldin remembered. “A lot of victims are so traumatized, so overcome with fear during the course of the sexual assault itself, that it’s unusual to find somebody that’s capable of having that presence of mind.”
Gauldin asked Jennifer to help a police artist prepare a composite drawing of the rapist. That drawing was widely circulated, and it generated an anonymous tip. An informant provided Gauldin with the name of a man with a criminal record, a man who worked at Somer’s Seafood Restaurant in the neighborhood of Jennifer’s apartment, a black man with a habit of touching white waitresses and teasing them about sex. The caller said the man owned a blue shirt similar to the shirt Jennifer had seen on the night of the rape. Gauldin placed that man’s photograph in an array of six individual mug shots of black men and asked Jennifer whether she recognized anyone. The composition of the array was fair, and no one stood out unduly. Gauldin played it straight: He made no effort to prompt Jennifer or tip her off to his suspect. Jennifer remembers her photo identification this way: “It didn’t take me very long. It took me minutes to come to my conclusion. And then I chose the photo of Ronald Cotton. After I picked it out, they looked at me and they said, ‘We thought this might be the one,’ because he had a prior conviction of the same . . . same type of circumstances sort of.”
Armed with Jennifer’s identification, Gauldin obtained a search warrant and set out to arrest Ronald Cotton. Cotton was not at home, but Gauldin did find two pieces of evidence in Cotton’s room: a red flashlight like one described by the second rape victim and a shoe with a foam insert consistent with foam found on the floor at Jennifer’s apartment. When Cotton heard about Gauldin’s search, he turned himself in at the police station “to clear things up.” Cotton gave Gauldin an alibi, but his alibi did not check out. Gauldin arranged to have Cotton stand in a live lineup.
Jennifer methodically examined the line of six black men arrayed across the front of a room at police headquarters. “They had to do the steps to the right, to the left, and then turn around,” she recalled. “And then they were instructed to do a voice presentation to me. They had to say some of the lines that the rapist had said to me that night so I could hear the voice, because the voice was a very distinct voice.”
Jennifer narrowed her choices to the man wearing number 4 and Ronald Cotton, who was wearing number 5. She had the police put the lineup members through their routine again. Then she was sure: “It’s number 5,” she said. Later, Gauldin explained what had happened: “That’s the same guy. I mean, that’s the one you picked out in the photo.”
“For me,” Jennifer remembered “that was a huge amount of relief, not that I had picked the photo, but that I was sure when I looked at the photo that [it] was him and when I looked at the physical lineup I was sure it was him.” She was still sure when she testified in court and identified Ronald Cotton.
She was just as sure when she faced Cotton again, in a second trial ordered by the North Carolina Supreme Court. There was a new challenge this time. Cotton’s lawyers had pursued inmate rumors that the Burlington rapes actually had been committed by a convict named Bobby Poole. At Cotton’s second trial, Poole was brought into court and shown to Jennifer. Jennifer did not fl inch then either. “I thought,” she told Frontline, “Oh, this is just a game. This is a game they’re playing.” It was not Poole, Jennifer told the jurors, “I have never seen him in my life.” She told them it was Cotton. At the second trial, the other Burlington victim testified for the first time, and she also positively identified Cotton. Cotton was convicted again, and Jennifer was elated. “It was one of the happiest days of my life,” she recalled. Now she knew for certain that Cotton was never going to get out. She had forced herself to go through two trials; she had picked the right man; she had her justice. “I was sure as I can be,” she remembers.
But Jennifer Thompson was wrong. The second Burlington victim was wrong. Mike Gauldin and the Burlington police, despite their conscientious, by-the-book investigation, were wrong. The 24 jurors who in two separate trials had convicted Ronald Cotton were wrong.
Procedural Issues between Cops and Prosecutors
Mistaken identifications are not uncommon in our system of justice. The police actually see lots of misidentification during criminal investigations. In fact, witnesses—20 to 25 percent in one survey—routinely identify fillers in photo arrays or lineups. These confident but mistaken witnesses never make it to the prosecutors because their cases are screened out, but they are a regular feature of an investigator’s life. The prosecutors, by contrast, seldom see a case unless the police have a solid identification and something to corroborate it (Doyle 2005). For that reason, it can be said that the police are primarily responsible for the outcome of eyewitness identifications and consequently take great care to make sure that the procedures for conducting show ups, photo arrays, and lineups are closely followed. Contrarily, anything resembling standardized procedures represents a potential danger for prosecutors because defense lawyers are viewed as being eager to pounce on any deviation from the new standard procedures (Doyle 2005). Although following routine procedures may be a fundamental part of police culture, it may sometimes place an extra burden on prosecutors, who want to be able to exercise their judgment in preparing a case for trial. It has therefore been argued that the science of memory must count in police stations and courtrooms (Doyle 2005), not only to alleviate the perils of mistaken identifications based on poor processes, but also to ensure the accuracy of prosecution.
The Science of Memory
In 1975, Lavrakas and Bickman found that in a study of 54 prosecuting attorneys in a large metropolitan community, “an eyewitness identification and the victim’s memory of the incident (which is also an eyewitness account) are far more important than any other characteristics a witness possesses, such as age, race, or level of income” (Loftus 1996, 12). Lavrakas and Bickman interpreted the prosecutors’ responses to mean that having a witness who could recall events accurately was absolutely crucial to the just resolution of criminal cases. The likeableness of the witness as well as his or her appearance and presentation on the stand during the trial were also shown to influence the perception of credibility. Most important, however, was the ability of the witness to portray confidence on the stand as well as to give an accurate description of events that could not be easily influenced when the added pressure of cross-examination was applied by the defense. Indeed, this is a difficult task, because defense lawyers are sometimes very well trained in cross-examination techniques that can lead to inconsistent results, particularly when small details of events are challenged over long periods of time.
When we experience an important event, we do not simply record that event in memory as a videotape recorder would. The situation is much more complex. Nearly all of the theoretical analyses of the process divide it into three stages. First, there is the acquisition stage—the perception of the original event—in which information is encoded, laid down, or entered into a person’s memory system. Second, there is the retention stage, the period of time that passes between the event and the eventual recollection of a particular piece of information. Third, there is the retrieval stage, during which a person recalls stored information. This three-stage analysis is so central to the concept of the human memory that it is virtually universally accepted among psychologists (Loftus 1996).
In sum, once the information associated with an event has been encoded or stored in memory, some of it may remain there unchanged whereas some may not.
The three most common types of eyewitness identifications, all of which offer their own relative advantages and disadvantages to criminal investigations occurring in the United States, are among several techniques for identifying suspects that law enforcement officials use to buttress their case for arrest. First, lineups of the sort that appear in popular movies and television shows depicting a suspect who is escorted into a room with three to five supposedly similar-looking people to stand before a witness to a crime have routinely been scrutinized owing to the questionable similarity of the participants’ physical characteristics. In Martin v. Indiana (1977), for example, in which the description of the suspect was that of a tall 32-year-old African American, only 2 out of 12 people in the lineup were African American and one of them was only five feet three inches tall.
Second, photo lineups in which eyewitnesses attempt to identify suspects from an array of photographs are not generally considered as reliable as live lineups owing to the variable quality of the photos. Photo arrays continue to be used because of the diversity of treatments available to the administrators of the photo lineups, such as adding additional photos to the lineup so that the witness must choose from an array of numerous photos as opposed to the numeric limitations of a live lineup. Also, additional photos of the actual suspect can be added to the photo array in varying poses and with various ornamentation, such as with or without a beard or glasses. Still, issues arise with the fairness of such techniques where justice is concerned because, for example, when a suspect appeared in 14 of 38 photos, a New Jersey court ruled, in State v. Madison (1988), that the photo array was impermissibly suggestive (State v. Henderson 1988).
Finally, police usually arrange show ups when they present a single suspect to a witness and ask, “Is he the one who raped you?” Show ups have been criticized for inherent prejudice owing to the nature of the show up, because they usually happen immediately after the crime, and some witnesses may view the fact that the police have apprehended the person as a sign that the person is guilty of the crime. The U.S. Supreme Court, however, has not ruled that this procedure constitutes a constitutional due process violation if there is additional reason to believe that the suspect is in fact the guilty party. Some state courts, however, as in the case of People v. Guerea (1974), have routinely ruled that show ups violate due process. In short, mistaken identification was observed to be the major source of error contributing to wrongful convictions in recent years (Sporer, Malpass, and Koehnken 1996).
A Key Moment
Hugo Muensterberg is credited with having performed one of the earliest experimental demonstrations of eyewitness misidentification in Berlin in 1902 when, as a college professor, he staged a fight between students during a lecture. It was so arranged that one of the actors appeared to have shot another with a pistol. Students attending the lecture were asked to write down their account of the fight immediately following the event, but only 26 percent of the students were able to give somewhat accurate details, and even those presented some erroneous facts, such as nonattributed and misattributed language and actions (Muensterberg 1908).
Important Persons and Legal Decisions
Three landmark cases that first established constitutional parameters regarding eyewitness identification in criminal trials established procedural standards: (1) In United States v. Wade (1967), the Supreme Court held that because a postindictment lineup is a “critical stage” of prosecution, the defendant had a right to have an attorney present (United States v. Wade 1967). (2) Gilbert v. California (1967) augmented the ruling set forth in Wade by holding that “a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused person’s constitutional right to the presence of his counsel at the critical lineup” (Gilbert v. California 1967). And (3) Stovall v. Denno (1967) created a standard whereby the identification procedure may not be “so unnecessarily suggestive and conducive to irreparable mistaken identification that [the suspect is] denied due process of law.”
Additional challenges to the procedures set forth by the Supreme Court standards have questioned the constitutionality of eyewitness identifications based primarily on the Sixth Amendment right to counsel. Arguments for Sixth Amendment protection, for example, suggest that suspects are entitled to an attorney if identification occurs at a preliminary hearing, even before the indictment, but not if the identification is conducted as a part of an on-the-scene show up. Besides, it is well known that although states may increase rights provided by the Constitution (including the Sixth Amendment), states cannot decrease its protections. Pennsylvania, for example, requires an attorney at all postarrest lineups, and Tennessee provides the right to counsel as soon as an arrest warrant is issued. New York even requires the presence of an attorney if a suspect wants to waive his or her right to counsel as an added protection for the validity of the waiver (Sporer, Malpass, and Koehnken 1996). To that end, “The vast majority of eyewitness identification cases have been decided on due process grounds” (Sobel 1988, 110).
It should also be noted that Neil v. Biggers (1972) outlined the following five witness factors to be used in considering whether the defendant’s due process rights have been violated: (1) opportunity of the witness to view the criminal at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior descriptions, (4) the witness’s level of certainty, and (5) the time lapse from the crime to the identification (Neil v. Biggers 1972). Opportunity to view can involve factors such as whether the crime and the identification occurred in daylight, as well as the distance and time duration within which the crime occurred. The case of Gilliard v. LaVallee (1974) provided the foundation for considering time duration in eyewitness identifications because, in that case, the kidnap victims were able to view their captors for up to six hours (Gilliard v. LaVallee 1974). Similarly, the degree of attention paid by eyewitnesses to the crime at the time that it occurred can be said to influence the credibility of eyewitness identifications. Attention is high when undercover officers are making a drug deal (State v. Denny 1984), for example, but low when an assailant awakens a victim during an incident (People v. Leonard 1978). Prior descriptions may cause inconsistency and may not be allowed in trial proceedings in cases where a witness provides a physical description of a suspect at the scene of a crime by height and weight, for example, but it is later determined that the height and weight of the suspect are significantly different from what the witness first reported.
Although it is commonly agreed that certainty is ascertained with the traditional standard set forth in Neil v. Biggers, “that a confident witness is an accurate witness” (Sporer, Malpass, and Koehnken 1996), there is some evidence to suggest that the relative certainty with which a witness identifies a suspect cannot, in fact, be correlated with the degree of accuracy. For example, time lapse can greatly influence the degree of accuracy regardless of the degree of confidence displayed by witnesses. Generally, there is no due process violation based on the length of time lapse between the event and the identification, but the accuracy of identifications has not been shown to increase with time; for example, two years did not present a problem to the New Hampshire court in State v. Cross (1986).
Still, other factors may also influence eyewitness identification, such as unconscious transference, which usually occurs when a person actually seen in an unrelated place or context is mistakenly identified as the offender in an eyewitness identification procedure. Also, identifications made by people in some occupations, such as college professors (Plummer v. State 1980), lawyers (Robinson v. State 1985), and security guards (Royce v. Moore 1972) are sometimes viewed by trial participants as being more credible.
In 2001, New Jersey became the first state with guidelines strongly recommending that police use a sequential method of photo identification rather than displaying an array of photos of suspects (Harry 2001). Studies have shown that the new method, which does not allow witnesses to compare mug shots side by side, drastically cuts the number of mistaken identifications. Based primarily on a U.S. Justice Department study commissioned in 1999, the results of which showed that many cases overturned with DNA evidence relied heavily on witness identifications of suspects, the push for the sequential method came from law enforcement officials rather than persons who had been wrongly convicted or their advocates (Harry 2001). Further, there has been opposition to the variability with which many police departments around the country process eyewitness identifications; for that reason, it has been argued that the problem of misidentification can be avoided by scripting data collection with police departments (Wells and Olson 2003). In addition, conditions are being found in which eyewitness certainty might be more closely related to eyewitness identification accuracy than was once thought, especially when external influences on eyewitness certainty are minimized; but the difficulty of exploring that relationship remains because of a perceived disconnect between social science and policing. Police records, for example, do not distinguish between eyewitnesses who make identifications of a filler and those who make no identifications, which can result in a serious underestimation of the rate of filler identifications (Wells and Olson 2003).
Finally, in a law review article published in 2002, Dori Lynn Yob suggested that the problems with a state-by-state approach point to a broader solution: the adoption of mandatory, uniform, nationwide standards (Yob 2002). She goes on to argue that such a broad set of standards would be most effectively implemented through a U.S. Supreme Court decision and proposes that the following changes be made: (1) The witness should be instructed prior to the lineup that the perpetrator may or may not be present and that he or she should not feel pressured to make an identification. (2) The composition of the lineup should not cause a suspect to stand out unduly. (3) Fillers in the lineup should be chosen to fit the eyewitness’s initial description of the culprit rather than to resemble the suspect. (4) When there is more than one witness, a different lineup should be created for each witness, with only the suspect remaining the same. (5) Lineups should always be conducted by someone unconnected to the case who does not know the identity of the suspect. (6) Mock witnesses should be used to test the neutrality of each lineup, and blank lineups should always be used. (7) Sequential lineups should always be used. And (8) lineups should always be videotaped.
In Yob’s view, “uniform nationwide guidelines would likely have an impact on the amount of erroneous eyewitness evidence because the guidelines would help attorneys identify and object to faulty identification procedures,” and “a critical look at the problems with eyewitness identification evidence should be included in the curriculum of certain high school and college classes”(Yob 2002), not only because students at the high school level are more likely to incorporate the education into civic duties they learn to fulfill as they develop but also because most people do not attend college. For that reason, we are more likely to capture the hearts and minds of the young people in high school today before they become the jurors, judges, and police of tomorrow.
Allison M. Cotton
- Gilbert v. California, 388 U.S. 263; 87. S. Ct. (1967).
- Gilliard v. LaVallee, 376 F. Supp. 205. (S.D. N.Y., 1974).
- Martin v. Indiana, 438 F. Supp. 234. (N.D. Ind., 1977).
- Neil v. Biggers, 409 U.S. 188. (1972).
- People v. Guerea, 78 Misc. 2d 907, 358 N.Y.S. 2d 925.
- People v. Leonard, 66 A.D.2d 805, 410 N.Y.S. 2d 885. (1978).
- Plummer v. State, 270 Ark. 11, 603 S.W.2d 402. (1980).
- Robinson v. State, 473 So.2d 957 Miss. (1985).
- Royce v. Moore, 469 F.2d 808. (1st Cir., 1972).
- State v. Cross, 128 N.H. 732, 519A.2d 272. (1986).
- State v. Denny, 350 N.W.2d 25. (N.D., 1984).
- State v. Henderson, 109 N.J. 223, 536 A.2d 254. (1988).
- Stovall v. Denno, 388 U.S. 293; 87 S. Ct. (1967).
- United States v. Wade, 388 U.S. 218; 87 S. Ct. (1967).
- Cutler, Brian, and Margaret Bull Kovera, Evaluating Eyewitness Identification. New York: Oxford University Press, 2010.
- Doyle, James M., True Witness: Cops, Courts, Science, and the Battle against Misidentification. New York: Palgrave Macmillan, 2005.
- Harry, Jennifer L., “DNA Evidence Changes Identification Methods.” Corrections Today 63, no. 6 (2001): 3–5.
- Innocence Project, “Eyewitness Misidentification.” http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php
- Loftus, Elizabeth F., Eyewitness Testimony. Cambridge, MA: Harvard University Press, 1996.
- Muensterberg, H., On the Witness Stand: Essays on Psychology and Crime. New York: Doubleday, 1908.
- Rossmo, D. Kim, Criminal Investigative Failures. Boca Raton, FL: CRC Press, 2008.
- Sobel, N. R., Eyewitness Identification: Legal and Practical Problems. New York: Clark Boardman, 1988.
- Sporer, Siegfried Ludwig, Roy S. Malpass, and Guenter Koehnken, eds., Psychological Issues in Eyewitness Identification. Mahwah, NJ: Erlbaum, 1996.
- Terry, Roger L., “Effects of Facial Transformations on Accuracy of Recognition.” Journal of Social Psychology 134, no. 4 (1994): 483–489.
- Wells, Gary L., and Elizabeth A. Olson, “Eyewitness Testimony.” Annual Review of Psychology 19 (2003): 277–296.
- Yob, Dori Lynn, “Mistaken Identifications Cause Wrongful Convictions: New Jersey’s Lineup Guidelines Restore Hope, but Are They Enough?” Santa Clara Law Review 43 (2002): 213.