Eyewitness Accounts Still Prove Problematic in the Criminal Justice System


August 29, 2011

Flawed eyewitness testimony is the number one contributing factor to wrongful convictions later overturned by DNA analysis, according to a new book by Virginia Law professor Brandon L. Garrett. Whether it’s a witness giving a statement to police or a victim viewing a photo lineup, the way a person remembers a face combined with questionable police procedure can place an innocent person behind bars.

At the same time, eyewitness testimony is also a necessary part of our criminal justice system. It’s “the most abundant form of evidence, and it would be nearly impossible to convict people without it,” says Reason’s Radley Balko. “The problem is that it has for far too long been used irresponsibly” by law enforcement and the courts.

Case in point is the story of Ronald Cotton, who was convicted of rape based on the testimony of Jennifer Thompson. Thompson took great pains to remember details about her attacker, and law enforcement officials like Captain Mike Gauldin were confident that she could make a correct identification in a photo lineup. Thompson fingered Cotton — and after almost 11 years behind bars, DNA evidence proved he was not the rapist.

Garrett’s analysis of the case shows how even subtle reinforcement by police created a perfect storm for an incorrect identification, regardless of the good intentions of Thompson and the police. After Thompson picked out Cotton out of a photo lineup, she received praise from police:

“You’re sure,” Gauldin asked, and she said, “Positive.” There was even more reinforcement of her choice by police officials. She asked them, “Did I do OK?” The detectives answered, “You did great, Ms. Thompson.”

With that in mind, Thompson was later asked to identify her attacker in a physical lineup.  Cotton was the only person present who was also in the pervious photo lineup. Thompson fingered Cotton again:

Gauldin asked her “if she was certain,” and she said she was. Again, she was not asked how certain she was—she was, in effect, just asked to be certain. Additional comments from the detectives, similarly well-intentioned and designed to reassure her, also had a dramatic effect. “We thought that might be the guy,” said Gauldin, “It’s the same person you picked from the photos.” She later recalled: “When I picked him out in the physical lineup and I walked out of the room, they looked at me and said, ‘That’s the same guy,’ I mean, ‘That’s the one you picked out in the photo.’ For me that was a huge amount of relief.”

Ronald Cotton was cleared of all charges and released from jail in 1995. Years later, he and Jennifer Thompson became friends and criminal justice reform advocates; they wrote a book together in 2009.

In the wake of Cotton’s case and others like it, some states and police departments (including Gauldin’s in North Carolina) changed how they handle eyewitnesses, adopting some key recommendations from the Innocence Project:

+ Blind administration: Research and experience have shown that the risk of misidentification is sharply reduced if the police officer administering a photo or live lineup is not aware of who the suspect is.

+ Lineup composition: “Fillers” (the non-suspects included in a lineup) should resemble the eyewitness’ description of the perpetrator. The suspect should not stand out (for example, he should not be the only member of his race in the lineup, or the only one with facial hair). Eyewitnesses should not view multiple lineups with the same suspect.

+ Instructions: The person viewing a lineup should be told that the perpetrator may not be in the lineup and that the investigation will continue regardless of the lineup result. They should also be told not to look to the administrator for guidance.

+ Confidence statements: Immediately following the lineup procedure, the eyewitness should provide a statement, in his own words, articulating his the level of confidence in the identification.

+ Recording: Identification procedures should be videotaped whenever possible – this protects innocent suspects from any misconduct by the lineup administrator, and it helps the prosecution by showing a jury that the procedure was legitimate.

Last week, New Jersey established groundbreaking legal standards for how eyewitnesses can be used in court, and what juries should know about eyewitness evidence before they decide on a case. The New York Times’ Benjamin Weiser explains what the state’s Supreme Court ruling means for Jersey judges:

The court said that whenever a defendant presents evidence that a witness’s identification of a suspect was influenced, by the police, for instance, a judge must hold a hearing to consider a broad range of issues. These could include police behavior, but also factors like lighting, the time that had elapsed since the crime or whether the victim felt stress at the time of the identification.

When such disputed evidence is admitted, the court said, the judge must give detailed explanations to jurors, even in the middle of a trial, on influences that could heighten the risk of misidentification.

The new rules stem from a 2010 report by retired New Jersey Judge Geoffrey Gaulkin, who found that, on average, about one-third of witnesses finger the wrong person when making an identification. If successful, Jersey’s system could serve as a model for other states; though as The New York Times’ Erica Goode and John Schwartz points out today, “changing how the nation’s more than 16,000 independent law enforcement agencies handle the presentation of suspects to witnesses will be no easy task.”

The U.S. Supreme Court is slated to hear a case on eyewitness identification this fall, though because of the case’s narrow focus it’s unlikely to set into motion major changes nationwide.  Still, says Garrett, “It is exciting that the court has actually taken an eyewitness ID case for the first time in many years.”

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