Eyewitness Report.qxd:Layout 3

REEVALUATING

LINEUPS:

WHY WITNESSES MAKE MISTAKES

AND HOW TO REDUCE THE CHANCE OF A MISIDENTIFICATION

BENJAMIN N. CARDOZO SCHOOL OF LAW, YESHIVA UNIVERSITY

AN INNOCENCE PROJECT REPORT

BOARD OF DIRECTORS

Gordon DuGan

President and Chief Executive Officer,

W.P. Carey & Co., LLC

Senator Rodney Ellis

Texas State Senate, District 13

Board Chair

Jason Flom

President, LAVA Records

John Grisham

Author

Calvin Johnson

Former Innocence Project

client and exoneree;

Supervisor, Metropolitan Atlanta

Rapid Transit Authority

Dr. Eric S. Lander

Director, Broad Institute of MIT and

Harvard Professor of Biology, MIT

Hon. Janet Reno

Former U.S. Attorney General

Matthew Rothman

Managing Director and Global Head

of Quantitative Equity Strategies,

Barclays Capital

Stephen Schulte

Founding Partner and Of Counsel,

Schulte Roth & Zabel, LLP

Bonnie Steingart

Partner, Fried, Frank, Harris,

Shriver & Jacobson LLP

Andrew H. Tananbaum

President and CEO,

Capital Business Credit, LLC

Jack Taylor

Head of High Yield Debt,

Managing Director,

Prudential Real Estate

Board Treasurer

Paul R.Verkuil

Of Counsel,

Boies, Schiller & Flexner LLP

Rachel Warren

M.K. Enterprises, Inc.

CONTENTS

1. EXECUTIVE SUMMARY.................................................................................................3

2. HISTORY AND OVERVIEW OF EYEWITNESS MISIDENTIFICATION ..................................6

3. PROBLEMS WITH TRADITIONAL EYEWITNESS IDENTIFICATION PROCEDURES.............10

4. HOW TO PREVENT MISIDENTIFICATION.....................................................................16

5. REFORMS AT WORK..................................................................................................22

ENDNOTES.....................................................................................................................26

APPENDIX A:

Wrongful Conviction Cases Later Overturned Through DNA Testing

Which Involved Eyewitness Misidentification....................................................................28

APPENDIX B:

Model Legislation: An Act to Improve The Accuracy of Eyewitness Identifications................33

EXECUTIVE SUMMARY

Eyewitness identification is among the most

prevalent and persuasive evidence used in

courtrooms. Eyewitness testimony that directly

implicates the defendant is compelling evidence

in any trial, but it is not error-proof. Jurors may

not realize that confident, trustworthy witnesses

can be mistaken. A single witness’s identification

can be enough to obtain a conviction.

Eyewitness identification also plays a key role

in shaping investigations. In the immediate after-

math of a crime, an erroneous identification can

derail police investigations by putting focus on

an innocent person while the actual perpetrator

is still on the streets. Once a witness identifies

the suspect to police, whether or not that person

actually committed the crime, investigators may

stop looking for other suspects.

Over 175 people have been wrongfully convicted

based, in part, on eyewitness misidentification and

later proven innocent through DNA testing. The

total number of wrongful convictions involving

eyewitness misidentifications exceeds this figure,

given the widespread use of eyewitness testimony

and the limited number of cases in which DNA

evidence is available for post-conviction testing.

Experts estimate that physical evidence that can

be subjected to DNA testing exists in just 5-10%

of all criminal cases.

Even among that small

fraction of cases, many will never have the benefit

of DNA testing because the evidence has been

lost or destroyed. DNA exonerations don’t just

show a piece of the problem – they are a micro-

cosm of the criminal justice system.

Decades of empirical, peer-reviewed social science

research reaffirms what DNA exonerations have

proven to be true: human memory is fallible.

Memory is not fixed, it can be influenced and

altered. After the crime and throughout the

criminal investigation, the witness attempts to

piece together what happened. His memory is

evidence and must be handled as carefully as

the crime scene itself to avoid forever altering it.

The Innocence Project identifies the common

causes of wrongful convictions across DNA

exoneration cases and has found eyewitness

misidentification to be the leading cause.

Innocence Project research shows:

• Over 230 people, serving an average of

12 years in prison, have been exonerated

through DNA testing in the United States,

and 75% of those wrongful convictions

(179 individual cases as of this writing)

involved eyewitness misidentification.

• In 38% of the misidentification cases,

multiple eyewitnesses misidentified the

same innocent person.

• Over 250 witnesses misidentified

innocent suspects.

• Fifty-three percent of the misidentification

cases, where race is known, involved cross-

racial misidentifications.

• In 50% of the misidentification cases,

eyewitness testimony was the central evidence

used against the defendant (without other

corroborating evidence like confessions,

forensic science or informant testimony).

• In 36% of the misidentification cases,

the real perpetrator was identified through

DNA evidence.

• In at least 48% of the misidentification cases

where a real perpetrator was later identified

through DNA testing, that perpetrator went

on to commit (and was convicted of) addi-

tional violent crimes (rape, murder, attempted

murder, etc.), after an innocent person was

serving time in prison for his previous crime.

Many of these misidentifications could have been

prevented, many wrongful convictions averted,

and many additional crimes avoided if police

had used more reliable lineup procedures.

In recognition of this, procedural reforms have

been developed by leading eyewitness psycholo-

gists and successfully implemented by criminal

justice professionals. These reforms have a strong

scientific foundation and have been embraced

by leading national justice organizations includ-

ing the National Institute of Justice and the

American Bar Association.

They include:

• Double-blind presentation: photos or lineup

members should be presented by an adminis-

trator who does not know who the suspect is.

THE INNOCENCE PROJECT

10%

20%

30%

40%

50%

60%

70%

80%

Unvalidated

or Improper

Forensic Science

Eyewitness

Misidentification

False

Confession

Informant

Testimony

Eyewitness misidentification as the leading cause of wrongful conviction compared to other causes

(based on the first 239 DNA exonerations)

• Lineup composition: “Fillers” (the non-suspects

included in a lineup) should resemble the

eyewitness’s description of the perpetrator and

the suspect should not stand out. Also, a lineup

should not contain more than one suspect.

• Witness 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 whether an identifi-

cation is made.

• Confidence statements: At the time of the

identification, the eyewitness should provide

a statement in her own words indicating her

level of confidence in the identification.

• Recording: Identification procedures

should be videotaped.

• Sequential presentation (optional): Lineup

members are presented one-by-one (by a

“blind” administrator) instead of side by side.

Several states, cities and towns have already

adopted the reforms and found them to be

cost-effective and easily implemented. The

benefits are extensive and include reinforcing

the integrity of reliable identifications as well

as reducing the rate of misidentifications.

Despite positive feedback from police departments

where the reforms have been implemented and

mounting evidence of the reforms’ effectiveness,

the majority of jurisdictions have maintained the

status quo. There are no consistent standards for

identification procedures from state to state or

even from one police department to the next.

In fact, many police departments do not have

written procedures for conducting identifications,

so there is often inconsistency even within indi-

vidual police departments. Now is the time for

change. Misidentifications benefit no one: not

the innocent defendants who face incarceration

for crimes they didn’t commit, not the victims

who are denied justice, not the police officers

working to catch the real perpetrator, and not

the public whose safety is jeopardized when real

perpetrators remain at large.

This report provides a historical overview of how

eyewitness misidentification came to be recog-

nized as a leading cause of wrongful conviction,

it examines the shortcomings of traditional

eyewitness identification procedures, and it

describes how simple improvements to proce-

dures can alleviate the problem, with examples

of cities and states across the country that have

successfully implemented procedural reforms.

EXECUTIVE SUMMARY

“ It’s incumbent on us that we

establish procedures that make

them [police lineups] more reliable,

that law enforcement can count on.

If you identify the wrong person,

you’re leaving a criminal out

there free and you’re potentially

convicting an innocent person.”

North Carolina State Rep. Deborah Ross,

The Herald-Sun, April 30, 2007

HISTORY AND OVERVIEW OF

EYEWITNESS MISIDENTIFICATION

THE INNOCENCE PROJECT

On December 19, 1974, thousands of viewers

watched a woman being mugged on a New York

City television newscast. In a 13-second video

clip, viewers saw a man grab a woman’s purse,

knock her down and then run face forward

toward the camera. After the clip, viewers were

shown a lineup of six men who resembled the

attacker and a phone number to call to identify

which lineup member (if any) was the real per-

petrator. Answering the phones were psychology

professor Robert Buckhout and his students,

who recorded the results as part of a staged

psychological study on eyewitness identification.

Buckhout published the devastating results

under the title, “Nearly 2,000 Witnesses Can Be

Wrong:” He concluded that only 14% of viewers

made a correct positive identification, about the

same amount that would have gotten it right by

simply guessing.

In terms of the sheer number

of eyewitnesses involved, the experiment was

groundbreaking. But, in fact, the results were

nothing new. Hundreds of witnesses in scores of

other eyewitness identification experiments had

been getting it wrong for decades.

Hugo Munsterberg, a German-American psychol-

ogist, first wrote about the fallibility of witness

memory a century ago in “On the Witness Stand.”

Munsterberg described a fight staged in a crimi-

nology classroom in order to test the students’

ability to recall the event. One student shouted

an accusation at another who then retaliated.

The professor tried to intervene, and a gun went

off. At that moment, the professor explained the

experiment and asked all the students to write

an exact account of what happened.

Mistakes were found in every account of the

incident, and witnesses were just as likely to get

the important details wrong as they were to

get them right. Munsterberg reported: “Words

were put into the mouths of men who had been

silent spectators during the whole short episode;

actions were attributed to the chief participants

of which not the slightest trace existed; and

essential parts of the tragic-comedy were

completely eliminated from the memory of

a number of witnesses.”

Psychological research over the past century has

consistently shown a high error rate in eyewitness

identifications. In 1932, Yale Law Professor

Edwin Borchard cited eyewitness misidentifica-

tion as the leading cause of wrongful convictions

“ People tend to think of the ability

to recognize a face as a natural

ability. But a criminal situation

is totally different than what

people generally experience.”

Professor Gary Wells: The Innocence Project in Print,

Winter 2008

in his book, “Convicting the Innocent.”

Sixty

years later, DNA exoneration cases proved that

Borchard and the psychologists were right.

DNA Exonerations Further Reveal the

Prevalence of Eyewitness Misidentification

DNA exonerations supported what scientists

and academics had been saying for decades.

The cases represented a new, compelling data

subset to support existing research about

eyewitness identification. After all, these weren’t

subjects in scientific experiments; they were

people with firsthand experience of injustice.

The first post-conviction DNA exoneration

occurred in 1989, but it would be years before

post-conviction DNA testing was widely available.

In 1992, the Innocence Project, founded by

Barry Scheck and Peter Neufeld, began repre-

senting prisoners who could be proven innocent

through DNA testing. The demand for represen-

tation was enormous, and with the help of law

students from the Benjamin N. Cardozo School

of Law, the Innocence Project set out to fill the

need. By the end of 1995, 28 people had been

exonerated through DNA testing.

The growing, undeniable evidence of wrongful

convictions spurred a new wave of criminal

justice research. In 1996, U.S. Attorney General

Janet Reno commissioned a National Institute

of Justice (NIJ) research report, “Convicted by

Juries, Exonerated by Science,” to analyze the

causes of the 28 cases of wrongful conviction.

The only contributing cause common to all

cases was eyewitness misidentification. Clearly,

the witnesses in all the cases had been wrong.

Today, the data subset has multiplied, and

evidence from over 175 cases shows that eyewit-

nesses get it wrong. But why do eyewitnesses get

it wrong? And what can be done about it?

Why Eyewitnesses Get It Wrong

To understand the factors affecting eyewitness

identification, it helps to use the example of

a particular crime and its investigation. Larry

Fuller’s case exemplifies a range of factors that

can compromise eyewitness identification. Fuller

was wrongfully convicted of a Dallas rape based,

in part, on eyewitness misidentification.

Case example: Larry Fuller

Sentence Served: 19.5 years

Conviction: Aggravated rape

In April 1981, a woman woke up at 6 a.m. to find

a man with a knife on her bed. It was 45 minutes

before sunrise on a foggy day, and the only light

in the room (other than any light from outside

before dawn) came from a digital alarm clock.

She tried to grab the knife away from the assailant,

but he cut her on the hand, the neck and the

back and then raped her. He got up and asked

the victim if she had any money and when she

said no, he fled. The entire incident lasted only

a matter of minutes.

The victim initially told police that she could not

provide a description of the perpetrator because

of the limited lighting. However, two days after

the rape, police showed the victim six photos at

her home. Fuller’s photo was among the six she

was shown. The victim said that he “looks a lot

like the guy,” but could not positively identify

him. The investigating police officer issued a

report recommending that the investigation be

HISTORY AND OVERVIEW OF EYEWITNESS MISIDENTIFICATION

“suspended,” noting that the victim “was unsure

of the suspect at this time.” The investigation

continued, however, and police remained

focused on Fuller.

A police officer went to Fuller’s house and took

three Polaroid photographs of him so that the

victim could see a recent photo of Fuller. He then

went to the victim’s home to show her a second

photo array. Fuller’s photo was the only one that

was repeated in the second photo array.

The Polaroid, taken exactly one week after the

attack, showed Fuller with a heavy distinct beard.

The victim became alarmed that Fuller had a full

beard, since she had said her attacker did not have

facial hair. Placing her fingers over the bottom

part of the photo, to block half of Fuller’s face,

she then positively identified him, and he was

arrested. In August 1981, Fuller had a two-day

trial – in which the prosecution said the victim had

“never wavered” in identifying him. After deliber-

ating for 35 minutes, the jury convicted him.

Because of how the crime occurred, this identifi-

cation was compromised before the investigation

even began. The lack of light in the room pre-

vented the victim from getting a clear view of the

assailant. The perpetrator had a knife. Studies

have shown that the presence of a weapon in-

creases stress levels and decreases the likelihood

of a reliable identification.

Research also shows that people are less able to

recognize faces of a different race than their own

due to a phenomenon known as “own-race bias.”

In this case, the victim was Caucasian and the

perpetrator was African-American. In 53% of

wrongful convictions cases involving eyewitness

misidentification (that were later overturned

through DNA testing), the witness and the

perpetrator were of different races. These cases

strongly suggest that people of color are more

likely to be wrongfully convicted based on

cross-racial misidentification than Caucasians.

Cross-racial misidentifications in the DNA

exoneration cases involve an African-American

or Latino defendant 99% of the time, and a

Caucasian defendant only 1% of the time.

All of these factors – the limited lighting, the

presence of a weapon, the cross-race identifica-

tion – are “event-related variables.” While the

criminal justice system should take these factors

into account, and must educate jurors about the

scientific research surrounding them, they are

not factors that law enforcement can control.

It’s still possible that a witness might be able to

recognize an assailant in spite of these event-

related variables and make a correct identifica-

tion. However, in this case, law enforcement

further compromised the identification with its

single-minded pursuit of Fuller.

THE INNOCENCE PROJECT

“ All those years ago, (a Burlington

detective) was doing his job by the

book – but when I asked him if I

did OK and he told me yes, then

I subconsciously tried to pick the

same person out of the physical

lineup. The standard way eyewit-

ness evidence was collected had

failed me, and because of that,

I’d failed, too.”

Jennifer Thompson-Cannino, a North Carolina rape

victim who misidentified Ronald Cotton as her attacker.

Cotton was exonerated by DNA testing in 1995.

Picking Cotton, St. Martin’s Press, 2009

Factors involving law enforcement’s interactions

with the witness, including the lineup procedures

and any questions, suggestions and inferences

that are made are “procedure-based variables.”

From the moment an eyewitness interacts with

the criminal justice system, her memory (which

is a form of evidence), is at risk, even from the

well-intentioned questions of law enforcement

officers. Research shows that memory is not like a

video recorder. We neither record events exactly

as we see them, nor recall them like a tape being

replayed. Instead, each new bit of information

helps to construct the memory, which can be

manipulated and transformed with even the

most subtle cues. Once altered, the original

memory cannot be restored.

Because the victim viewed Larry Fuller’s photo

in the first photo array, she was already familiar

with his face when she saw it again in the second

photo array. Regardless of the fact that Fuller

had a full beard, she recognized him, and there-

fore identified him as the perpetrator. These

procedure-based variables interfered with her

original memory by suggesting that Fuller was

the perpetrator. Rather than helping to uncover

her original memory, police supplanted it with

a new one.

Although the event-based problems could not

have been prevented, the procedure-based

problems could have. Sections four and five of

this report will explore how police can improve

lineup procedures to avoid these types of prob-

lems and reduce the rate of misidentifications.

But first, a closer examination of the problems.

HISTORY AND OVERVIEW OF EYEWITNESS MISIDENTIFICATION

Race of the defendant, of those known,

in cross-racial misidentifications

(based on 78 defendants in cross-racial misidentification cases

in the first 239 DNA exonerations)

Caucasian

Latino

African-American

90%

Race of the eyewitness, of those known,

in cross-racial misidentifications

(based on 78 eyewitnesses in cross-racial misidentification cases

in the first 239 DNA exonerations)

In cases with multiple eyewitnesses, only the witness of a different race

was counted. There were no known cases in which eyewitnesses

of multiple different races misidentified the same innocent defendant.

92%

Other

Latino

Caucasian

PROBLEMS WITH TRADITIONAL

EYEWITNESS IDENTIFICATION PROCEDURES

THE INNOCENCE PROJECT

The Innocence Project identifies common

problems across DNA exoneration cases and has

consistently found that eyewitness misidentifica-

tion contributes to more wrongful convictions

later overturned through DNA testing than

any other cause. Specific complications with

eyewitness identification can be tracked through

the individual DNA exoneration cases as well.

While complications caused by event-related

variables (low lighting, disguised perpetrators,

etc.) contribute to misidentifications, the

Innocence Project’s focus is on procedure-

related variables, which can be improved

through law enforcement practices.

1. Composition of the lineup may be suggestive

A lineup is either a photo array or a physical

lineup, which most often consists of five or six

members. In a proper lineup, only one of the

lineup members will be the police suspect, and

the others will be “fillers.” These fillers may come

from a nearby jail, they may be other police officers

in plain clothes, or, in some cases, they may be

civilians. If a filler is selected from a lineup that

person will not be prosecuted. In a balanced

lineup, all the fillers will resemble the witness’s

description of the suspect and the suspect will not

stand out in any suggestive way. If the lineup

composition unfairly suggests a particular choice –

for example, the suspect towers head and shoul-

ders above the fillers or is the only one with

facial hair or is the only one wearing a hat –

the witness is more likely to be influenced in

making a selection.

In DNA exoneration cases, examples of sugges-

tive lineups resulting in wrongful convictions

include: a photo array in which the suspect’s

photo was the only one in color, a photo array

in which the suspect and only one other man

were shirtless (and the perpetrator had been

described as shirtless), and a physical lineup

in which the suspect was the only one wearing an

orange prison jumpsuit. Any detail that identifies

the lineup member as the police suspect (like the

orange jumpsuit), or as more closely matching

the description of the perpetrator, will be an

obvious cue to the witness to pick that person out.

“ What happened to me was horrible

and it caused me a lot of pain, but

it’s tiny compared to what he went

through. I was allowed to move on,

but he woke up every morning in

that prison.”

Ann Meng, Virginia rape victim who misidentified Julius

Ruffin as her attacker. Ruffin was exonerated through DNA

testing in 2003: O, The Oprah Magazine, October 2007

Case Example: Antonio Beaver

Sentence Served: 10 years

Conviction: First-degree robbery

In 1996, a woman in St. Louis was attacked with

a screwdriver by a man who stole her purse and

car. She described her attacker as a clean-shaven

African-American man wearing a baseball cap.

She said the man was about 5’ 10” and had a gap

between his teeth. About a week after the crime,

a detective arrested Antonio Beaver because he

thought Beaver resembled the composite sketch.

Beaver appeared in a physical lineup with three

other men. Beaver and only one other man were

wearing baseball caps and Beaver was the only

one who had a gap in his teeth. The victim

identified Beaver. In 1997 he was convicted and

sentenced to 18 years in prison. Years later,

DNA testing was conducted on bloodspots left

inside the car by the perpetrator. The biological

evidence didn’t match Beaver, and he was

exonerated in 2007.

Since Beaver was placed in a lineup with only three

other men, the odds that he would be chosen

were already high. The fact that only two of the

lineup members wore caps further increased the

likelihood that he would be chosen. Finally, the

gap in his teeth plus the presence of the cap

made it almost certain that he would be chosen.

2. Cues from the lineup administrator may

influence the identification

In most criminal investigations, the officer who

administers the lineup has already established

rapport with the eyewitness, has followed the case

closely and most likely has already begun to de-

velop some ideas about who the culprit might be.

The witness, who has a strong interest in seeing

justice done and in making the right decision,

may look to the officer for guidance or affirma-

tion. Likewise, the administrator will naturally

feel empathy for the witness, who is often also

the victim, and may consciously or unconsciously

provide cues to assist them. Examples include

something as direct as a leading question or sug-

gestion, like “Take another look at number four,”

to seemingly innocuous body language cues.

It’s often difficult to determine after the fact if

the lineup administrator has influenced the

eyewitness’s identification either intentionally or

unintentionally. However, in some wrongful con-

victions cases it was clearly a factor. For example,

if the lineup itself appears to be fair and unbiased,

yet multiple eyewitnesses are all identifying the

same innocent person as the suspect, then wit-

nesses may be responding to cues given by the

lineup administrator. Wrongful convictions have

resulted from as many as 10 witnesses misidenti-

fying the same innocent defendant. Any kind

of coaching or feedback to the witness, even by

well-intentioned officers, could compromise

the reliability of the identification.

PROBLEMS WITH TRADITIONAL EYEWITNESS IDENTIFICATION PROCEDURES

“ I thought surely I would’ve been

cleared when they said the guy was

5’8” because I’ve never been 5’8”

in my life. I’ve always been tall as

I can remember; I stand 6’4”.

James Waller, exonerated through DNA testing

after 10 years in prison and 13 years on parole:

Innocence Project interview, Fall 2007.

Case Example: Thomas McGowan

Sentence Served: 23 years

Conviction: Burglary of a habitation,

aggravated sexual assault

A rape victim in Dallas was shown a photo array.

After looking at the photo of Thomas McGowan,

she placed it aside, indicating that she thought

it was her assailant. The detective assigned to the

case then told her, “You have to be sure, yes or

no.” The crime victim recalled the detective’s

instructions as follows: “He said if I was going to

say it was somebody, if I was going to say it was

that picture, I had to be sure. He said I couldn’t

think it was him. He said I had to make a positive

ID. I had to say yes or no.” After hearing the

officer’s instructions, the victim said the man in

the photo was “definitely” the man who attacked

her. McGowan was proven innocent through

DNA testing in 2008.

The victim’s identification of McGowan was

the central evidence against him. By pushing the

witness into certainty, the officer administering

the lineup also apparently confirmed that she

was selecting the suspect. Had the victim paused

on one of the filler, or non-suspect, photographs

it is unlikely the detective would have been so

forceful in asking the victim to be certain.

In fact, there is no reason why the victim should

have to be 100% certain in her identification.

The investigation should continue regardless.

3. Witnesses may misunderstand the role

of the identification procedure in the

investigative process

Most people have never had to participate in an

eyewitness identification procedure. So for most

eyewitnesses, it’s a new, and probably stressful,

experience. Everyone involved wants the same

outcome – apprehension of the guilty party and

elimination of any innocent suspects. However,

witnesses will not have enough experience with

the criminal justice system to understand how

to make the most accurate identification. The

witness may fear that failing to identify the

suspect will mean the end of the investigation

or that the perpetrator will go free and commit

additional crimes. The stakes are high.

The witness may, rightfully, assume that the

police have identified a suspect and may hope

to be able to identify that suspect. Yet, identifying

the suspect is not the witness’s task; instead, it

is to identify the perpetrator. Therefore, the

witness should focus on comparing his memory

to each individual represented.

Research shows that eyewitnesses tend to identify

the person who, they believe, looks most like

the perpetrator compared to the other members

THE INNOCENCE PROJECT

Number of witnesses misidentifying

the same innocent defendant

(based on 175 eyewitness misidentification cases

in the first 239 DNA exonerations)

3+ Witnesses

2 Witnesses

1 Witness

13%

25%

62%

of the lineup. Researchers have termed the

phenomenon “relative judgment.”

Like a

multiple choice test without an option for

“none of the above,” witnesses might not

understand that not selecting anyone is still

a viable choice. When witnesses are told that

they don’t have to make a selection and that the

investigation will continue regardless, they are

less likely to fall back on choosing the person

who looks most like the perpetrator relative

to the other members of the lineup.

4. Witnesses’ confidence in the identification is

susceptible to suggestion and subject to change

Studies have shown a surprising lack of correla-

tion between the confidence of the witness and

the accuracy of his identification.

In wrongful

convictions overturned by post-conviction DNA

testing, witnesses have testified that they were

“100% positive” of the identification, saying that

they “would never forget that face” – despite

having identified the wrong person. How does

this happen? The answer may lie in the informa-

tion the witness receives after the identification.

The lineup administrator may have affirmed the

identification – “Yes, that’s who we thought it was.”

Subtle affirmations from the administrator such

as a nod or saying, “Okay, good,” can also bolster

a witness’s confidence. Studies have shown that

witness’s confidence increases with positive feed-

back, even if the witness later denies that the

feedback had any effect on her level of certainty.

This increased confidence can even alter the

witness’s accounting of events or her recollection

of the identification procedure itself. She may

remember being certain of the identification,

when, in fact, the record of the identification

procedure will show that she was hesitant and

uncertain.

Perhaps the witness learned that her co-witness

also identified the same person or that the

person she identified had a prior criminal

record. The witness may also have been given

more than one opportunity to identify the

suspect; for example, in both a photo array and

a physical lineup. With each identification or

new bit of information, the witness becomes

more and more confident in the identification,

probably without even realizing it. By the time

of the trial, the witness takes the stand and

provides very convincing testimony that a jury

will often not question.

Case Example: Ronald Cotton

Sentence Served: 10.5 years

Conviction: Rape, Burglary

Ronald Cotton was misidentified in both a photo

array and a physical lineup by a rape victim in

North Carolina. After the photo array, investiga-

tors told the victim, “You did great.” She was

invited back to view a physical lineup in which

the only lineup member who had also been in

the photo array was Cotton. She identified him

a second time. The detective told her, “We

thought that might be the guy. It’s the same

person you picked from the photos.” The victim,

Jennifer Thompson-Cannino, testified at two

trials about her absolute certainty that Cotton

was her assailant – even after being presented

with a person at the second trial who it was later

discovered was the real perpetrator. Cotton was

sentenced to life plus 54 years and spent over

10 years in prison before his exoneration

through DNA testing in 1995.

Thompson-Cannino has since become an

advocate for eyewitness identification reform.

In 2009, she and Cotton published a book about

their experience, “Picking Cotton.” In the book,

she recalls how her false sense of confidence

PROBLEMS WITH TRADITIONAL EYEWITNESS IDENTIFICATION PROCEDURES

increased over time. “Ron was the only person

who had been in both the photo and the physical

lineups, making his face more recognizable to me.

And then the police told me that I had identified

the same person in the physical lineup whose

photo I had selected, so by the time I went into

court, everything added up for me: I was defiantly

confident that Ronald Cotton was the one.”

5. Beyond lineups: how eyewitness

misidentifications happen in show-ups

and composites

The lineup is the most common type of identifi-

cation procedure, but other types of procedures

do exist, and these may also result in misidentifi-

cations.

Show-ups

A “show-up” is a procedure in which the eyewit-

ness is presented with a single suspect to see

if he will identify this person as the perpetrator

of the crime. A show-up can be useful to law

enforcement when a suspect matching the

description of the perpetrator is spotted in

the vicinity of the crime. In common practice,

show-ups take place within two hours of the

crime. Show-ups are not an ideal procedure

because they are inherently suggestive. The

witness views one person who she can ascertain

immediately is the suspect. This person is often

surrounded by law enforcement and could be

in handcuffs. An innocent person in this situa-

tion is more likely to be misidentified than in a

traditional lineup, and this risk is even greater

if the innocent person is wearing similar

clothing as the perpetrator.

Case Example: Eduardo Velasquez

Sentence Served: 12.5 years

Conviction: Aggravated rape, assault

and battery with a dangerous weapon,

indecent assault and battery

Law enforcement officers saw Eduardo Velasquez

on the street in Chicopee, Massachusetts, and

thought that he resembled the description of an

assailant wanted in connection with a sexual

assault that had occurred that same night. The

officers asked him if he would go with them for

an identification procedure, and he consented.

THE INNOCENCE PROJECT

Real Perpetrators later identified through DNA testing

in eyewitness misidentification cases

(based on 64 of 179 eyewitness misidentification cases

where the real perpetrator was later identified through DNA testing)

Real Perpetrator identified

through DNA testing

Real Perpetrator committed

additional violent crimes

(and was convicted) after

an innocent person was

wrongfully convicted of

the previous crime

= 36%

= 48%

(of those known

)

They drove Velasquez to a convent, where the

victim had fled after the assault. Velasquez stood

on the porch while an officer shone a flashlight

on his face. The victim viewed him through the

curtained glass and screened front doors of the

convent standing behind two police officers and

peering between their shoulders. The victim

was 10 to 12 feet from him. She made a tentative

identification, but after hearing his voice and

inspecting his gloves, which were passed to her

through the door, she said she was sure. Velasquez

was exonerated through DNA testing in 2001.

In this case, the victim’s view of Velasquez was

highly obscured by the light source, the distance,

the curtains and the screened doors. Moreover,

in a traditional lineup with a selection of lineup

members, there is the possibility that the witness

will make a mistake by choosing a non-suspect

“filler.” This selection process allows law enforce-

ment to better test the witness’s memory. But in

a “show-up,” any selection the witness makes will

be considered by law enforcement as a correct

identification since there are no other lineup

members to rule out.

Composites

Composite sketches, or more recently, computer-

ized composite-production systems, are commonly

used. These systems take the witness’s description

of the perpetrator’s individual facial features

to generate an image of the perpetrator’s face.

Composites are used when a suspect has yet to

be identified, and they are often poor likenesses

of the perpetrator. People remember faces holis-

tically – not broken up into individual features.

The composite image breaks the features down

and then, like puzzle pieces, puts them back

together again.

The problem with composites goes beyond poor

representation. Studies have shown that the act

of creating a composite actually diminishes the

witness’s ability to later identify the perpetrator

from a lineup. Having the composite face freshly

in her mind, the witness is more likely to select

a person that resembles the composite, rather

than her original memory.

Case example: Kirk Bloodsworth

Sentence Served: 8 years, two on death row

Conviction: First-degree murder,

sexual assault, rape

In 1993, Kirk Bloodsworth became the first

person to be exonerated through DNA testing

who had served time on death row. Bloodsworth

became a suspect in the 1984 rape and murder

of a nine-year-old Maryland girl when an anony-

mous tipster called police to say that Bloodsworth

resembled a composite picture. Police placed

his photo in a photo lineup and multiple eyewit-

nesses identified him. At trial, five witnesses

testified that they had seen Bloodsworth with

the victim. DNA evidence not only vindicated

Bloodsworth but also implicated the real perpe-

trator, Kimberly Ruffner. Ironically, Bloodsworth

looked more like the composite than Ruffner

did. Bloodsworth was the only one in the photo

lineup with hair that matched the composite.

Witnesses unknowingly took characteristics of

the composite, like hair, and morphed that into

their original memory. Because Bloodsworth

shared more individual characteristics of the

composite sketch than the other lineup choices,

witnesses selected him. Their original memory

of Ruffner had become irrevocably altered.

PROBLEMS WITH TRADITIONAL EYEWITNESS IDENTIFICATION PROCEDURES

HOW TO PREVENT MISIDENTIFICATION

THE INNOCENCE PROJECT

In their 1996 commentary for the National

Institute of Justice report, “Convicted by Juries,

Exonerated by Science,” Innocence Project

Co-Directors Peter Neufeld and Barry Scheck

explained that wrongful convictions overturned

through DNA testing “represent just the tip of

a very deep and disturbing iceberg of cases,”

since DNA testing is possible in just a fraction

of cases.

In order to conduct DNA testing, some

type of biological evidence must be available:

blood, semen, hair, saliva. The types of crimes

that involve DNA evidence are typically violent

murders and rapes – not robberies, burglaries

or other crimes. Yet, there’s no reason to believe

that eyewitness misidentifications don’t occur

in these other types of crimes as well. When

post-conviction DNA testing is not an option,

innocent defendants who have been wrongfully

convicted may never have the chance to prove

their innocence. The best way to address the

problem is to reform the system so that misiden-

tifications don’t happen in the first place.

The advent of DNA exonerations renewed

interest in employing psychological research

to inform eyewitness identification practice.

Criminal justice professionals, lawmakers and

advocates turned their attention to police lineup

procedures. Lineup procedures are commonly

used nationwide, but practices often vary from

one police department to the next. No nation-

wide set of legal rules of procedure exist, and in

fact, many law enforcement offices do not have

any written guidelines for eyewitness identifica-

tion procedures.

In 1999, the National Institute of Justice

published a working guide for law enforcement

based on the recommendations of the “Techni-

cal Working Group for Eyewitness Evidence.”

The group was assembled to establish recom-

mendations for identification procedures and

included psychology professors as well as chiefs

of police, defense attorneys, prosecutors and

others. The guide represented a major effort

to unite what the psychologists had learned

about memory with the practical needs of law

enforcement to use eyewitness evidence as an

investigative tool.

Since its publication, a number of bar associa-

tions, police groups and state commissions

have conducted their own consideration of these

reforms. In 2004, the American Bar Association

issued its “Best Practices for Promoting Accuracy

of Eyewitness Identification Procedures,” and

resolved that federal, state and local govern-

ments should be urged to adopt a series of

principles incorporating scientific advances in

research into their identification practices.

In 2006, the International Association of Chiefs

of Police published its “Training Key on Eyewit-

ness Identification,” which concludes that “of all

investigative procedures employed by police in

criminal cases, probably none is less reliable

than the eyewitness identification. Erroneous

identifications create more injustice and cause

more suffering to innocent persons than perhaps

any other aspect of police work. Proper precau-

tions must be followed by officers if they are

to use eyewitness identifications effectively

and accurately.”

The momentum for systemic reform reached

state policymakers as well, and key recommenda-

tions were adopted by jurisdictions around the

nation. In 2001, New Jersey became the first state

in the nation to adopt the eyewitness identifica-

tion reforms endorsed by the Innocence Project.

In 2005, the Wisconsin Attorney General’s Office

followed suit and issued a similar set of policies

for statewide use. Most recently, in 2008, North

Carolina enacted perhaps the most comprehen-

sive piece of eyewitness identification reform

legislation in the nation. Jurisdictions across

the country, from Minneapolis, Minnesota,

to Denver, Colorado, have also voluntarily

implemented the recommended reforms.

These procedural reforms do not address all the

possible complications with eyewitness identifica-

tion, including event-related factors like limited

opportunity to view the perpetrator, cross-racial

identifications, the presence of a weapon, etc.

For those cases, scientists specializing in eyewit-

ness identification can be called as expert

witnesses to explain to the jury what scientific

research shows about the impact of event-related

factors on eyewitness identifications.

The following reforms are procedure-based

improvements which can be made by law

enforcement to enhance identification accuracy.

They are based on 30 years of comprehensive

social science research as well as the recommen-

dations of police, prosecutors, judges and

national justice organizations, including the

National Institute of Justice and the American

Bar Association.

HOW TO PREVENT MISIDENTIFICATION

Eyewitness misidentification as the central cause

(based on 179 eyewitness misidentification cases in the first 239 DNA exonerations)

50% 8%

with informant testimony

with false confession

or admission

48%

with unvalidated or

improper forensic science

just eyewitness

misidentification

The percentages will not add up to 100 because more than one cause may contribute to a wrongful conviction in any given case.

1. Composition of the lineup

From its origins in mid-19th century England,

the lineup was developed to be fair and to follow

certain basic guidelines. As an alternative to

suggestive in-court identification procedures,

the identity of the suspect in lineup procedures

would not be revealed to the witness. Just as in

lineups today, a sufficient number of fillers were

presented to the witness and assembled so that

no one lineup member would stand out.

Since

then, research has identified a number of other

specific suggestions to reduce suggestibility and

increase accuracy in the lineup:

• There should be only one suspect included

in the lineup.

• In addition to the suspected perpetrator,

at least five fillers should be included in a

photo array and at least four fillers should

be included in a physical lineup.

• Fillers should be selected that resemble the

description of the perpetrator provided by the

witness, including the witness’s description of

significant features (i.e. face, weight, and build)

and any unique or unusual features (i.e. scar,

tattoo, etc). However, they must look different

enough to be discernible from each other.

• If the witness previously viewed a photo array

or physical lineup in connection with the

identification of another person suspected

of involvement in the offense, the fillers in the

photo array or live lineup in which the suspect

participates should be different from the fillers

used in any prior identification procedures.

• In the case of a photo array, the photograph of

the suspect should be contemporary, resemble

his or her appearance at the time of the

offense, and not unduly stand out when

compared with the photos of the fillers.

• If there are multiple witnesses, the suspect

should be placed in a different position in

the live lineup and/or photo array for each

witness. Witnesses should be segregated

before, during, and after every lineup

procedure and instructed not to discuss

the procedure with each other.

• During an identification procedure, no writ-

ings or information concerning any previous

arrest, indictment or conviction of the suspect,

or any information connecting the suspect

with the offense, should be visible or made

known to the witness.

2. Blind administration

“Blind administration” is based on a basic tenet

of scientific research: Test subjects are influenced

by the expectations of those who perform the

tests – or in the case of an identification proce-

dure, witnesses are influenced by the expectation

of the lineup administrator.

Therefore, the

person conducting the lineup should not know

who is a suspect and who is a filler. When the

administrator doesn’t know who the suspect is,

she can’t lead the witness towards that person

or steer the witness away from the other lineup

members, even subconsciously. Also, the witness

can’t look to the administrator for guidance or

affirmation, which could taint the identification

and artificially boost the witness’s confidence

in his selection.

In some police departments, finding an officer

who is not involved in the case to conduct the

lineup blind presents a special challenge. The

jurisdiction may be small and there may not be

any officers available who aren’t familiar with the

case and the suspect. For these jurisdictions, law

enforcement agencies have found a way to allow

the detective on the case to conduct the lineup

“blinded” by using the “folder system.”

THE INNOCENCE PROJECT

The “folder system” is a simple, cost-effective way

to allow for blind administration even when the

only officer available is someone involved with

the case.

Using one suspect photo, five filler

photos and ten folders, the officer encloses each

photograph in a separate folder (leaving four

folders empty) and then shuffles the folders

before giving them to the witness. The officer

positions herself in such a way that she cannot

see inside the folders when the witness opens

them. This way, the officer can’t know which

lineup member the witness is viewing at any

given time. The officer should also tell the witness

that she doesn’t know which folder contains the

suspect. The four extra folders will not contain

any photos and will serve as dummy folders so

that the witness doesn’t know which folder holds

the last photo.

The folder system assumes that lineup members

are viewed sequentially, rather than simultane-

ously. See page 21 for more information about

sequential presentation. All other recommenda-

tions for lineups should be used in conjunction

with sequential presentation.

3. Witness instruction

Providing instructions to witnesses helps them

understand the role of the identification proce-

dure in the investigative process. It is also helps

decrease the pressure witnesses may feel to make

a selection, which has been shown to contribute

to misidentifications. Paramount in protecting

the innocent is the instruction that the perpetrator

“may or may not be present” in the photo array,

physical lineup or show-up. Studies have shown

that when witnesses are warned that the perpe-

trator may not be present they are less likely to

choose an innocent suspect.

Witnesses should

also be assured that the investigation will continue

even if they don’t make a selection. Instructions

can prevent witnesses from simply identifying the

lineup member that looks most like the perpetra-

tor, and they can prevent witnesses from feeling

pressured to make a selection.

The instructions recommended by the Innocence

Project are based on social science research and

have been endorsed in whole or in part by the

National Institute of Justice, the Wisconsin

Department of Justice and the New Jersey

Attorney General’s office. These instructions

should be given prior to the identification

procedure in physical lineups, show-ups, or

photo arrays:

• Describe the photo array to the witness only

as a “collection of photographs.”

• Instruct the witness that the person who

committed the crime may or may not be

present in the identification procedure.

• Assure the witness that regardless of whether

he makes an identification, the police will

continue to investigate the case.

HOW TO PREVENT MISIDENTIFICATION

“ Although no criminal justice system

is perfect and mistakes do occur,

even with the most well-intentioned

efforts of law enforcement, enacting

these eyewitness identification

reforms would significantly improve

the quality of prosecutions in our

state. The consequences of failing

to do so are too grave.”

Georgia State Rep. Stephanie Stuckey Benfield,

The Atlanta Journal-Constitution January 25, 2007

• Instruct the witness that the procedure

requires the investigator to ask the eyewitness

to state, in her own words, how certain she

is of any identification.

• Advise the witness that the administrator

does not know who the suspect is.

• Direct the witness not to discuss the

identification procedure or its results with

other witnesses involved in the case and

avoid contact with the media.

4. Confidence statements

Decades of solid empirical evidence shows that

juries assume confident eyewitnesses are reliable

eyewitnesses.

Social scientists know better.

Gary Wells explains: “If you pick someone out of

a lineup, you begin rehearsing that person’s face.

You start thinking back to the crime scene and

thinking of the person you picked out of the

lineup. You begin to boost your own memory

without realizing it.”

Even the process of

preparing for a trial and cross-examination has

been shown to enhance witness’s confidence.

Juries hear witnesses’ certainty at trial, but often

don’t hear about their hesitancy during the

identification procedure.

A witness may say, “That looks like the guy,” or

“I think that’s her,” which is not the same as

making a positive identification. Whatever the

witness’s exact words, the lineup administrator

should ask for and document a clear statement

from the witness about his or her level of confi-

dence immediately upon identifying the suspect.

Also, the witness should not be provided with any

information about the selection until after the

confidence statement has been documented,

though even then feedback is discouraged. This

simple reform is critical to giving jurors a com-

plete understanding of the eyewitness evidence.

5. Electronic recording of the identification

procedure

Identification procedures are a crucial part of

any investigation, and any aspect of the proce-

dure could be a critical issue at trial. The precise

communications, both verbal and non-verbal,

made by both the eyewitness and administrator

are important to juror understanding of the

identification’s accuracy. Therefore, law enforce-

ment must keep track of exactly what transpired.

The best way to document the procedure is by

video recording. Creating an electronic record

of the identification procedure aids law enforce-

ment and prosecutors, since a fair and just

identification procedure that is preserved for the

record can withstand challenges raised at trial.

Video records of well-implemented identification

procedures, lineups and show-ups, can also be

used to train other law enforcement officers.

A video record can help demonstrate the proper

THE INNOCENCE PROJECT

“ It’s just a reality that eyewitness

identifications are made under

situations of incredible duress,

when people are trying to recall

what someone looked like, and

they can be more or less accurate.

So what we’re trying to do with

these guidelines is to give law

enforcement a way in which we

think we can at least narrow the

risk that a mistake will be made.”

Former New Jersey Attorney General John J. Farmer:

The New York Times, July 21, 2001

technique for filler selection, blind administra-

tion, the provision of instructions and other

best practices.

Finally, the knowledge that these types of proce-

dures are being recorded boosts public confi-

dence in the criminal justice process. Simply

put, creating an electronic record of eyewitness

identification procedures provides everyone with

the best evidence of what specifically transpired.

Ideally, the lineup or show-up will be electroni-

cally recorded using video equipment. If that’s

impossible, the lineup administrator should

make an audio recording. If neither a video

nor audio record is possible, the lineup adminis-

trator should document, in writing, the reasons

why and provide a detailed written record of the

identification procedure. Regardless of the type

of record, the entire identification procedure

should be recorded for each witness, beginning

when the witness enters the identification room

(or other venue) and ending when the witness

has completed the procedure and left the

identification room.

6. Sequential presentation (optional)

In a typical photo array or physical lineup, the

lineup members are presented simultaneously –

all at once. This format increases the tendency

for witnesses to make a relative judgment, com-

paring each lineup member to the rest and

ultimately choosing the one that most resembles

the perpetrator. A sequential presentation – each

lineup member presented one at a time – helps

counter this tendency and encourages the witness

to compare each individual to his own memory.

When paired with a blind administrator, this

reform has been proven to greatly minimize the

likelihood of misidentifications.

When sequen-

tial presentations are conducted without a blind

administrator, however, researchers caution that

they may create an increased risk of misidentifi-

cation.

A large body of peer-reviewed research –

and the real-world experience of police depart-

ments nationwide – corroborate the value of

blind-sequential lineups. Section five provides

information about jurisdictions that have

successfully implemented the sequential reform.

However, research has also shown that sequential

presentations lead to fewer correct identifica-

tions.

The reduction in correct identifications

is not nearly as significant as the reduction in

incorrect identifications. Still, some are hesitant

to employ sequential procedures. The Innocence

Project endorses the sequential reform but has

refrained from including it in the current

eyewitness identification reform package so that

questions surrounding sequential presentation

do not stall the adoption of the other eyewitness

identification reforms. Given the tremendous

value of the other reforms discussed (both indi-

vidually and together), the Innocence Project

suggests that the reform package be considered

separately from sequential presentation.

Meanwhile, in collaboration with specific

jurisdictions, the Innocence Project supports

field studies of sequential and simultaneous

lineup procedures that use solid scientific

methodology. Hopefully, the research will

provide sound data and resolve questions about

sequential versus simultaneous lineups. The

Innocence Project can provide more informa-

tion about sequential lineups, including studies,

protocol, law enforcement references and

other information upon request.

HOW TO PREVENT MISIDENTIFICATION

REFORMS AT WORK

THE INNOCENCE PROJECT

DNA exonerations have led eyewitness identifica-

tion reform into the 21st century. While concerns

about misidentifications had been raised by social

science researchers years earlier, lawmakers were

slow to respond until DNA exonerations brought

the problem to the public’s awareness.

In 2001, New Jersey became the first state to

officially adopt the reforms recommended by the

National Institute of Justice (NIJ), including eye-

witness instructions, proper lineup composition,

confidence statements and documenting the

identification procedure. In addition, New Jersey’s

Attorney General mandated the use of blind

administration and sequential presentation of

lineup members. This reform package, endorsed

by the Innocence Project, became known as “blind-

sequential.” The state adopted these reforms

soon after the exoneration of McKinley Cromedy,

whose wrongful conviction was based almost

entirely on eyewitness identification evidence.

In 2005, the Wisconsin Attorney General’s deci-

sion to recommend blind-sequential procedures

came after the high-profile exoneration of a man

who was wrongfully convicted based, in part, on

eyewitness misidentification. The reforms are not

mandatory in Wisconsin, yet hundreds of law en-

forcement agencies statewide have adopted them.

Several cases highlighting the criminal justice

system’s shortcomings motivated the state of

North Carolina to adopt the reform package

in 2008. The state has exonerated five people

through DNA testing whose cases involved

eyewitness misidentification – most recently,

Dwayne Allen Dail who served 18 years of a life

sentence. The North Carolina statute has been

the most comprehensive to date. It mandates

the blind-sequential procedure, proper filler

selection, comprehensive witness instructions,

confidence statements; provides for training

of law enforcement officers; and offers possible

legal remedies in cases where the law enforce-

ment agency failed to comply with these policies.

These three states offer the broadest statewide

policies, but other states have also taken action.

Study committees to recommend guidelines for

eyewitness identification practices have been

created in Georgia, Vermont and West Virginia.

West Virginia also adopted several key reforms.

Georgia’s study committee found a lack of

statewide standards and, based on the committee’s

“ Of the police officers I trained,

the vast majority said that they had

never received formal training in

eyewitness identification procedures

and that their departments do not

have eyewitness evidence policies.”

Lieutenant Kenneth Patenaude:

Public Law, Policy, and Ethics Journal, 2006

REFORMS AT WORK

Timeline of Eyewitness Identification Reform

The National Institute of Justice publishes “Eyewitness Evidence: A Guide for

Law Enforcement,” based on the recommendations of the “Technical Working

Group for Eyewitness Evidence.”

New Jersey becomes the first state in the nation to adopt comprehensive

eyewitness identification reform with the “blind-sequential” reform package.

American Bar Association issues “Best Practices for Promoting Accuracy of

Eyewitness Identification Procedures.”

Wisconsin Attorney General’s Office recommends use of blind-sequential

identification procedures and mandates that law enforcement agencies adopt

written policies on eyewitness identification.

Vermont creates a task force to explore eyewitness identification reforms and

issue recommendations. West Virginia mandates that law enforcement agencies

follow specific policies for eyewitness identification procedures and creates a task

force to study and identify additional best practices for eyewitness identification.

Maryland mandates that all of its law enforcement agencies adopt written policies

for eyewitness identification procedures that comply with National Institute of

Justice standards.

North Carolina passes the broadest eyewitness identification law to date by

mandating blind-sequential policies, providing for training of law enforcement

officers, and also offering possible legal remedies in cases where the law enforcement

agency failed to comply with these policies. Georgia implements statewide training

program for officers on identification procedures based on the recommendations of

the Georgia study committee created in 2007. The Commission on the Accreditation

of Law Enforcement Agencies adopts eyewitness identification standards, which

require that agencies seeking accreditation create written procedures for conducting

eyewitness lineup and show-up procedures.

The Dallas Police Department announces that it will implement blind-sequential

procedures. Dallas County has had more DNA exonerations than any other county

in the nation and most states. Fourteen people whose wrongful convictions involved

eyewitness misidentification in Dallas County have been proven innocent through

DNA testing. The Dallas Police Department joins a growing number of jurisdictions

nationwide that are voluntarily adopting blind-sequential eyewitness identification

procedures.

1999

2001

2004

2005

2007

2008

2009

recommendations, the state decided to imple-

ment statewide training for officers on identifica-

tion procedures. (A 2007 study by the Georgia

Innocence Project found that 82% of law en-

forcement agencies had no policies for eyewit-

ness identification procedures.)

Maryland

mandated that all of its law enforcement agen-

cies adopt written policies for eyewitness identifi-

cation practices that are in compliance with

NIJ standards.

Smaller jurisdictions – counties, cities and

towns – are also addressing eyewitness misidenti-

fication by voluntarily implementing the

reforms. The Dallas Police Department an-

nounced in January 2009 that it will implement

blind-sequential procedures. Fourteen people

whose wrongful convictions involved eyewitness

misidentification have been exonerated through

DNA testing in Dallas County.

Implementing the Reforms

The in-the-field experiences of jurisdictions

across the country in states such as North

Carolina and New Jersey; cities like Denver

and Minneapolis; and in small towns such as

Northampton, Massachusetts, have shown that

blind-sequential procedures can be adapted in a

variety of settings – urban, suburban, small-town

and rural. The experiences of these jurisdictions

resolutely demonstrate the benefits and feasibil-

ity of adopting eyewitness identification reforms.

Law enforcement agencies have cited a number

of advantages: increased confidence in the accu-

racy of the identification, uniformity of procedures,

consistent training program for new officers about

eyewitness evidence, and ultimately, eyewitness

evidence that holds up better in court.

Lieutenant Kenneth Patenaude, a former member

of the NIJ’s Technical Working Group for Eyewit-

ness Evidence, trains investigators, attorneys and

judges about best practices for eyewitness identi-

fication procedures. In an article titled “Police

Identification Procedures: A Time for Change”

Patenaude writes, “Of the police officers I trained,

the vast majority said that they had never received

formal training in eyewitness identification pro-

cedures and that their departments do not have

eyewitness evidence policies.”

Patenaude intro-

duced blind-sequential procedures to his own

department in Northampton, Massachusetts,

and found that the investigators became more

confident in the evidence and more comfortable

with the procedures than they had been under

the old policies.

Ramsey County, Minnesota, which includes

sections of the Minneapolis-St. Paul metropolitan

area, implemented blind-sequential procedures

in 2006 after a year-long pilot project showed

that the reforms are effective. Initially, the Ram-

sey County officers had concerns. They feared

that using an independent, or blind, administra-

tor might delay criminal investigations, so the

pilot project included an alternative “blinded”

method, (such as the folder system), in which

the investigator does not know which photo the

witness is viewing at any given time and informs

the witness of this fact. At the end of the trial

year, most investigators said they preferred using

a blind administrator and rarely needed the

alternative method. Officers also feared that

the new procedures would limit positive identifi-

cations, but they found that, in practice, the

fear was unfounded.

THE INNOCENCE PROJECT

Ramsey County officials write in Police Chief

magazine, “After one year, the results were clear:

investigators who used this method found it

not only workable but no more difficult to apply

than the traditional method. There were no

associated administrative difficulties or addi-

tional overtime costs. However, there was an

unexpected benefit: most investigators involved

in the pilot came to prefer the new method

and felt more confident in the eyewitness

identifications that resulted.”

Darrel Stephens, former Chief of the Charlotte-

Mecklenburg Police Department in North

Carolina, helped institute the blind-sequential

reforms statewide in 2008. Stephens says,

“The investigators, as they’ve talked about and

worked on these different procedures and un-

derstood the research, have become much better

detectives. They’re able to come to court and say

this is the procedure we used, and here’s why we

used it, and here are the steps that we took the

eyewitness through.”

Towards a Nationwide Movement

Eyewitness identification reform has come a long

way in the past decade, since the NIJ released its

recommendations in 1999. The states, counties,

cities and towns that have adopted procedural

reforms have demonstrated to the nation that

they can increase the accuracy of eyewitness

evidence easily and at low cost. While the reforms

have faced resistance from some lawmakers – an

eyewitness identification reform bill has passed

the California Legislature three times only to

be vetoed by the Governor repeatedly, and bills

in Kentucky and New Mexico that received

broad, bipartisan support were not cleared after

consideration two years in a row – the Innocence

Project continues working closely with legislators

nationwide to pass meaningful eyewitness

identification reform.

The Innocence Project is also dedicated to

working with police, prosecutors and judges to

help them understand how eyewitness identifica-

tion procedures can be made more accurate and

reliable, as evidenced by scientific research and

in-the-field, practical experience. Police and

prosecutors can use the reforms to improve the

reliability of criminal investigations, strengthen

cases against the guilty and reduce misidentifica-

tion of innocent people. Judges can educate

juries about the risk of misidentification when

procedures have not been conducted properly.

In order to prevent wrongful convictions based

on eyewitness misidentification, every area of

the criminal justice system must work together.

Eyewitnesses provide indispensable evidence

in many police investigations, leading to the

apprehension and conviction of countless actual

perpetrators of crime. But when they make

mistakes, the consequences can be drastic.

Eyewitness misidentification can set in motion

a chain of irrevocable errors from the police

precinct to the courtroom – deterring police

officers from discovering the real perpetrator,

raising criminal charges against an innocent

person, and compelling the jury toward a guilty

verdict. It is the criminal justice system’s respon-

sibility to help eyewitnesses make the most

accurate identification possible. Eyewitnesses,

law enforcement and the public at large, will

benefit from identification procedures that

are designed according to scientific research

and conducted consistently nationwide.

REFORMS AT WORK

ENDNOTES

THE INNOCENCE PROJECT

1. Senate Committee on the Judiciary, Department of Justice Oversight: Funding Forensic Sciences--DNA and Beyond,

108th Cong, 1st sess., 2003, 22.

Quoted in Kelly M. Pyrek, Consortium Lobbies Capitol Hill on Behalf of Forensic Science Community,

Forensic Nurse, September 2005.

2. James Doyle, True Witness: Cops, Courts, Science and the Battle Against Misidentification

(New York: Palgrave MacMillan, 2005).

Barry Scheck, Peter Neufeld and Jim Dwyer, Actual Innocence: When Justice Goes Wrong and How to Make It Right

(New York: New American Library, 2003).

3. U.S. Dep’t of Justice, Nat’l Institute of Justice, “Eyewitness Evidence: A Guide for Law Enforcement,”

Technical Working Group for Eyewitness Evidence, 1999, http://www.ojp.usdoj.gov/nij/puns-sum/178240.htm.

American Bar Association, Criminal Justice Section, “Report to the House of Delegates: Resolution Adopting

the American Bar Association Statement of Best Practices for Promoting the Accuracy of Eyewitness Identification

Procedures,” 2004, http://www.abanet.org/leadership/2004/annual/111c.doc.

4. Robert Buckhout, “Nearly 2,000 Witnesses Can Be Wrong,” Bulletin of Psychonomic Society 16 (1980): 309.

5. Hugo Munsterberg, On the Witness Stand: Essays on Psychology and Crime (New York: Fred B. Rothman & Co, 1981),

www.psychclassics.yorku.ca/Munster/Witness/.

6. Edwin Borchard, Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice

(New Haven: Garden City Pub., 1932).

7. Edward Connors et al., U.S. Dept of Justice, Nat’l Institute of Justice “Convicted by Juries, Exonerated by Science:

Case Studies in the Use of DNA Evidence to Establish Innocence After Trial,” 1996.

8. C.J. Stanny and T.C. Johnson, “Effects of Stress Induced by a Simulated Shooting on Recall by Police and Citizen

Witnesses,” American Journal of Psychology 113, 359-386.

9. Christian Meissner et al., “Thirty Years of Investigating the Own-Race Bias in Memory of Faces,”

Psychology, Public Policy and Law 7 (2001): 270-275.

10. Gary L. Wells, “Applied Eyewitness Testimony Research: System Variables and Estimator Variables,”

Journal of Personality and Social Psychology 36 (1978): 1546-1557.

11. James Doyle, True Witness: Cops, Courts, Science and the Battle Against Misidentification, 91.

12. Gary L. Wells, “The Psychology of Lineup Identifications,” Journal of Applied Social Psychology 14, (1983): 89-103.

13. Gary L. Wells and Amy L. Bradfield “Good, You Identified the Suspect: Feedback to Eyewitnesses Distorts

Their Reports of the Witnessing Experience.” Journal of Applied Psychology 83 (1998): 361.

14. Ibid., 373.

15. Gary L. Wells and Amy L. Bradfield, “Distortions in Eyewitnesses’ Recollections: Can the Postidentification-

Feedback Effect Be Moderated?” Psychological Science 10 (1999): 138.

16. Jennifer Thompson-Cannino, Ronald Cotton and Erin Torneo, Picking Cotton: Our Memoir of Injustice and Redemption

(New York: St. Martin’s Press, 2009), 271.

17. A.D. Yarmey, M.J. Yarmey, and A.L. Yarmey, “Accuracy of Eyewitness Identifications in Showups and Lineups,”

Law and Human Behavior 20 (1996): 459-477.

18. Lisa E. Hasel and Gary L. Wells, “Catching the Bad Guy: Morphing Composite Faces Helps,”

Law and Human Behavior 31 (2007): 194.

19. Gary L. Wells and Lisa E. Hasel, “Facial Composite Production by Eyewitnesses,”

Current Directions in Psychological Science 16 (2007): 6.

20. Ibid.

21. Edward Connors et al., U.S. Dept of Justice, Nat’l Institute of Justice “Convicted by Juries, Exonerated by Science:

Case Studies in the Use of DNA Evidence to Establish Innocence After Trial” (1996): xxviii.

22. U.S. Dep’t of Justice, Nat’l Institute of Justice, “Eyewitness Evidence: A Guide for Law Enforcement,” Technical

Working Group for Eyewitness Evidence, 1999, http://www.ojp.usdoj.gov/nij/puns-sum/178240.htm.

23. American Bar Association, Criminal Justice Section, “Report to the House of Delegates: Resolution Adopting the

American Bar Association Statement of Best Practices for Promoting the Accuracy of Eyewitness Identification Pro-

cedures,” 2004, http://www.abanet.org/leadership/2004/annual/111c.doc.

24. The International Association of Chiefs of Police, “Training Key on Eyewitness Identification” (2006): 5.

25. Roy S. Malpass et al., “Lineup Construction and Lineup Fairness,” Handbook of Eyewitness Psychology:

Memory for People 2 (2007):155.

26. “Issues in the Measurement of Lineup Fairness,” eds. R.C.L. Lindsay and R.S. Malpass, special issue,

Applied Cognitive Psychology 13S (1999).

27. R. Rosenthal and D.B. Rubin, “Interpersonal expectancy effects: The first 345 studies,”

Behavioral and Brain Sciences 3 (1978): 377-386.

28. Wisconsin Department of Justice, Bureau of Training and Standards for Criminal Justice, “Model Policy and

Procedure for Eyewitness Identification,” 2005, http://www.doj.state.wi.us/dles/tns/eyewitnesspublic.pdf.

29. Gary L. Wells et al., “Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads,”

Law and Human Behavior 22 (1998): 23.

30. Ibid., 15.

31. “In Their Own Words: Q & A with Gary Wells, Professor of Psychology at Iowa State University and Eyewitness

Identification Expert,” Innocence Project in Print, Winter 2007, 17.

32. Gary L. Wells and Amy L. Bradfield, “Good, You Identified the Suspect,” 361.

33. Gary L. Wells et al., “Eyewitness Identification,” 19.

34. Ibid., 31.

35. Nancy M. Steblay et al., “Eyewitness Accuracy Rates in Sequential and Simultaneous Lineup Presentations:

A Meta-Analytic Comparison,” Law and Human Behavior 25 (2001): 468.

36. Georgia Innocence Project, “2007 Georgia Innocence Project Law Enforcement Survey,”

http://www.ga-innocenceproject.org/images/Eyewitness %20ID%20Report %202007.pdf.

37. Ken Patenaude, “Police Identification Procedures: A Time for Change,”

Public Law, Policy, and Ethics Journal 4 (2006): 416.

38. Ibid., 418.

39. Susan Gaertner and John Harrington, “Successful Eyewitness Identification Reform: Ramsey County’s Blind Se-

quential Lineup Protocol,” Police Chief Magazine, 2009, www.policechiefmagazine.org.

40. Ibid.

41. “In Their Own Words: Q & A with Police Chief Darrel Stephens,” Innocence Project in Print, Summer 2008, 17.

ENDNOTES

APPENDIX A

THE INNOCENCE PROJECT

Wrongful Convictions Cases Later Overturned Through DNA Testing

Which Involved Eyewitness Misidentification

Abdal, Habib Wahir NY 1983 1999

Adams, Kenneth IL 1978 1996

Alejandro, Gilbert TX 1990 1994

Alexander, Richard IN 1998 2001

Anderson, Marvin VA 1982 2002

Atkins, Herman CA 1988 2000

Avery, Steven WI 1985 2003

Barnes, Steven NY 1989 2009

Bauer, Chester MT 1983 1997

Beaver, Antonio MO 1997 2007

Bibbins, Gene LA 1987 2003

Blair, Michael TX 1994 2008

Bloodsworth, Kirk MD 1985 1993

Booker, Donte L. OH 1987 2005

Boquete, Orlando FL 1983 2006

Bostic, Larry FL 1989 2007

Bravo, Mark Diaz CA 1990 1994

Briscoe, Johnny MO 1983 2006

Brison, Dale PA 1991 1994

Bromgard, Jimmy Ray MT 1987 2002

Brown, Danny OH 1982 2001

Brown, Dennis LA 1985 2005

Bryson, David Johns OK 1983 2003

Bullock, Ronnie IL 1984 1994

Buntin, Harold IN 1986 2005

Burnette, Victor VA 1979 2009

Butler, A.B. TX 1983 2000

Byrd, Kevin TX 1985 1997

Cage, Dean IL 1996 2008

Callace, Leonard NY 1987 1992

Capozzi, Anthony NY 1987 2007

Chalmers, Terry NY 1987 1995

NAME STATE CONVICTION YEAR EXONERATION YEAR

APPENDIX A

Charles, Clyde LA 1982 1999

Charles, Ulysses Rodriguez MA 1984 2001

Chatman, Charles TX 1981 2008

Clark, Robert GA 1982 2005

Coco, Allen LA 1997 2006

Cole, Timothy TX 1986 2009

Cotton, Ronald NC 1985, 1987 1995

Cowans, Stephan MA 1998 2004

Cromedy, McKinley NJ 1994 1999

Crotzer, Alan FL 1981 2006

Dabbs, Charles NY 1984 1991

Dail, Dwayne Allen NC 1989 2007

Davidson, Willie VA 1981 2005

Davis, Cody FL 2006 2007

Davis, Dewey WV 1987 1995

Davis, Gerald WV 1986 1995

Daye, Frederick CA 1984 1994

Dedge, Wilton FL 1982, 1984 2004

Diaz, Luis FL 1980 2005

Dillon, William FL 1981 2008

Dixon, John NJ 1991 2001

Dominguez, Alejandro IL 1990 2002

Doswell, Thomas PA 1986 2005

Dotson, Gary IL 1979 1989

Durham, Timothy OK 1993 1997

Echols, Douglas GA 1987 2002

Elkins, Clarence OH 1999 2005

Erby, Lonnie MO 1986 2003

Evans, Michael IL 1977 2003

Fappiano, Scott NY 1985 2006

Fears, Joseph Jr. OH 1984 2009

Fountain, Wiley TX 1986 2003

Fuller, Larry TX 1981 2007

Giles, James Curtis TX 1983 2007

Godschalk, Bruce PA 1987 2002

Gonzalez, Hector NY 1996 2002

Good, Donald Wayne TX 1984 2004

Goodman, Bruce Dallas UT 1986 2004

Gossett, Andrew TX 2000 2007

Gray, David A. IL 1978 1999

Gray, Paula IL 1978 2002

Green, Anthony Michael OH 1988 2001

NAME STATE CONVICTION YEAR EXONERATION YEAR

THE INNOCENCE PROJECT

Green, Edward DC 1989 1990

Green, Kevin CA 1980 1996

Gregory, William KY 1993 2000

Harris, William WV 1987 1995

Harrison, Clarence GA 1987 2004

Hatchett, Nathaniel MI 1998 2008

Hayes, Travis LA 1998 2007

Hicks, Anthony WI 1991 1997

Holdren, Larry WV 1984 2000

Holland, Dana IL 1995 2003

Honaker, Edward VA 1985 1994

Hunt, Darryl NC 1985 2004

Jackson, Willie LA 1989 2006

Jean, Lesly NC 1982 2001

Jimerson, Verneal IL 1985 1996

Johnson, Albert CA 1992 2002

Johnson, Arthur MS 1993 2008

Johnson, Calvin GA 1983 1999

Johnson, Larry MO 1984 2002

Johnson, Richard IL 1992 1996

Johnson, Rickie LA 1983 2008

Jones, Joe KS 1986 1992

Jones, Ronald IL 1989 1999

Kotler, Kerry NY 1982 1992

Lavernia, Carlos TX 1985 2000

Lindsey, Johnnie TX 1983, 1985 2009

Lyons, Marcus IL 1988 2007

Mahan, Dale AL 1986 1998

Mahan, Ronnie AL 1986 1998

Maher, Dennis MA 1984 2003

Matthews, Ryan LA 1999 2004

Mayes, Larry IN 1982 2001

McClendon, Robert OH 1991 2008

McGee, Arvin OK 1989 2002

McGowan, Thomas TX 1985, 1986 2008

McMillan, Clark TN 1980 2002

McSherry, Leonard CA 1988 2001

Mercer, Michael NY 1992 2003

Miller, Billy Wayne TX 1984 2006

Miller, Jerry IL 1982 2007

Miller, Neil MA 1990 2000

NAME STATE CONVICTION YEAR EXONERATION YEAR

Mitchell, Marvin MA 1990 1997

Mitchell, Perry SC 1984 1998

Moon, Brandon TX 1988 2005

Moto, Vincent PA 1987 1996

Nesmith, Willie PA 1982 2000

Newton, Alan NY 1985 2006

Ochoa, James CA 2005 2006

O’Donnell, James NY 1998 2000

Ortiz, Victor NY 1984 1996

Pendleton, Marlon IL 1996 2006

Phillips, Steven TX 1982, 1983 2008

Pierce, Jeffrey OK 1986 2001

Piszczek, Brian OH 1991 1994

Pope, David Shawn TX 1986 2001

Powell, Anthony MA 1992 2004

Rachell, Ricardo TX 2003 2009

Rainge, Willie IL 1978 1996

Reynolds, Donald IL 1988 1997

Robinson, Anthony TX 1987 2000

Rodriguez, George TX 1987 2005

Rose, Peter CA 1995 2005

Ruffin, Julius VA 1982 2003

Salazar, Ben TX 1992 1997

Sarsfield, Eric MA 1987 2000

Scott, Samuel GA 1987 2002

Scruggs, Dwayne IN 1986 1993

Shephard, David NJ 1984 1995

Smith, Billy James TX 1987 2006

Smith, Frank Lee FL 1986 2000

Smith, Walter OH 1986 1996

Snyder, Walter VA 1986 1993

Sutherlin, David Brian MN 1985 2002

Sutton, Josiah TX 1999 2004

Taylor, Ronald Gene TX 1995 2008

Terry, Paul IL 1977 2003

Thomas, Victor Larue TX 1986 2002

Thurman, Phillip Leon VA 1985 2005

Tillman, James C. CT 1989 2006

Toney, Steven MO 1983 1996

Turner, Keith E. TX 1983 2005

Velasquez, Eduardo MA 1988 2001

APPENDIX A

NAME STATE CONVICTION YEAR EXONERATION YEAR

Villasana, Armand MO 1999 2000

Waller, James TX 1983 2007

Waller, Patrick TX 1992 2008

Wallis, Gregory TX 1989 2007

Wardell, Billy IL 1988 1997

Waters, Leo NC 1982 2005

Webb, Mark TX 1987 2001

Webb, Thomas OK 1983 1996

Webb, Troy VA 1989 1996

Webster, Bernard MD 1983 2002

White, John Jerome GA 1980 2007

Whitfield, Arthur Lee VA 1982 2004

Whitley, Drew PA 1989 2006

Williams, Dennis IL 1978 1996

Williams, Michael Anthony LA 1981 2005

Williams, Willie “Pete” GA 1985 2007

Willis, Calvin LA 1982 2003

Willis, John IL 1992, 1993 1999

Woodall, Glen WV 1987 1992

Woods, Anthony D. MO 1984 2005

Wyniemko, Kenneth MI 1994 2003

Yarris, Nicholas PA 1982 2003

Youngblood, Larry AZ 1985 2000

THE INNOCENCE PROJECT

NAME STATE CONVICTION YEAR EXONERATION YEAR

APPENDIX B

Model Legislation, 2009 State Legislative Sessions

An Act to Improve the Accuracy of Eyewitness Identifications

Updated: May, 2009

Benjamin N. Cardozo School of Law, Yeshiva University

Barry C. Scheck, Esq. and Peter J. Neufeld, Esq., Directors Maddy deLone, Esq., Executive Director

100 Fifth Avenue, 3rd Floor • New York, NY 10011 • Tel: 212/364-5340 • Fax: 212/364-5341

MODEL LEGISLATION, 2009 STATE LEGISLATIVE SESSIONS

AN ACT TO IMPROVE THE ACCURACY OF EYEWITNESS IDENTIFICATIONS

SECTION 1. LEGISLATIVE INTENT

The legislature finds that:

A. The goal of a police investigation is to apprehend the person or persons responsible for the

commission of a crime;

B. Mistaken eyewitness identification has been shown to have contributed to the wrongful

conviction in more than 75% of the nation’s 239 exonerations;

C. Over the past 30 years, a large body of peer-reviewed, scientific research and practice has

emerged showing that simple systemic changes in administering eyewitness identification

procedures can greatly improve the accuracy of those identifications;

D. Policies and procedures to improve the accuracy of eyewitness identifications such as those

recommended by the U.S. National Institute of Justice, the American Bar Association, the New

Jersey Office of the Attorney General, the Wisconsin Office of the Attorney General, the

California Commission on the Fair Administration of Justice, and the North Carolina Actual

Innocence Commission are readily available;

E. More accurate eyewitness identifications increase the ability of police and prosecutors to

convict the guilty and protect the innocent;

F. The integrity of [State’s] criminal justice process is enhanced by adherence to best practices

in evidence gathering; and

G. [State] will benefit from the improvement of the accuracy of eyewitness identifications.

Innocence Project, Inc.

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SECTION 2: DEFINITIONS

For the purposes of this Act:

A. “Administrator” means the person conducting the photo or live lineup;

B. “Suspect” means the person believed by law enforcement to be the possible perpetrator of the

crime;

C. “Blind” means the administrator does not know the identity of the suspect;

D. “Blinded” means the administrator may know who the suspect is, but does not know which

lineup member is being viewed by the eyewitness;

E. “Eyewitness” means a person who observes another person at or near the scene of an offense;

F. “Filler” means either a person or a photograph of a person who is not suspected of an offense

and is included in an identification procedure;

G. “Identification procedure” means a live lineup, a photo lineup, or a showup.

H. “Live lineup” means an identification procedure in which a group of persons, including the

suspected perpetrator of an offense and other persons not suspected of the offense, is displayed to

an eyewitness for the purpose of determining whether the eyewitness identifies the suspect as the

perpetrator;

I. “Photo lineup” means an identification procedure in which an array of photographs, including

a photograph of the suspected perpetrator of an offense and additional photographs of other

persons not suspected of the offense, is displayed to an eyewitness either in hard copy form or

via computer for the purpose of determining whether the eyewitness identifies the suspect as the

perpetrator; and

J. “Showup” means an identification procedure in which an eyewitness is presented with a

single suspect for the purpose of determining whether the eyewitness identifies this individual as

the perpetrator.

Innocence Project, Inc.

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SECTION 3. EYEWITNESS IDENTIFICATION PROCEDURES

Any criminal justice entity conducting eyewitness identification procedures shall adopt specific

procedures for conducting photo and live lineups that comply with the following requirements:

A. Prior to a photo or live lineup, law enforcement shall record as complete a description as

possible of the perpetrator provided by the eyewitness, in the eyewitness’s own words. This

statement shall also include information regarding the conditions under which the eyewitness

observed the perpetrator including location, time, distance, obstructions, lighting, weather

conditions, and other impairments, including but not limited to alcohol, drugs, stress, and

visual/auditory disabilities. The eyewitness shall be also be asked if he needs glasses or contact

lenses and whether he was wearing them at the time of the offense. The administrator shall note

whether the eyewitness was wearing glasses or contact lenses at the time of the identification

procedure.

B. Unless impracticable, a blind or blinded administrator shall conduct the live or photo lineup;

C. When it is impracticable for a blind administrator to conduct the eyewitness identification

procedure, the investigator shall state in writing the reason therefore;

D. The eyewitness shall be instructed, without other eyewitnesses present, prior to any live or

photo lineup that:

1. The perpetrator may or may not be among the persons in the identification procedure

or, in the case of a showup, may or may not be the person that is presented to the

eyewitness;

2. The administrator does not know who the perpetrator is;

3. The eyewitness should not feel compelled to make an identification;

4. The investigation will continue whether or not an identification is made;

Innocence Project, Inc.

Page 4

5. The procedure requires the administrator to ask the eyewitness to state, in his own

words, how certain he is of any identification; and

6. The eyewitness is not to discuss the identification procedure or its results with other

eyewitnesses involved in the case and should not speak with the media;

E. In a photo lineup, the photograph of the suspect shall be contemporary and shall resemble his

or her appearance at the time of the offense;

F. In a photo lineup, there shall be no characteristics of the photographs themselves or the

background context in which they are placed which shall make any of the photographs unduly

stand out;

G. A photo or live lineup shall be composed so that the fillers generally resemble the

eyewitness’s description of the perpetrator, while ensuring that the suspect does not unduly stand

out from the fillers;

H. In a photo or live lineup, fillers shall possess the following characteristics:

1. All fillers selected shall resemble the eyewitness’s description of the perpetrator in

significant features (i.e., face, weight, build, skin tone, etc.), including any unique or

unusual features (i.e., scar, tattoo, etc.);

2. At least five fillers shall be included in a photo lineup, in addition to the suspect;

3. At least four fillers shall be included in a live lineup, in addition to the suspect; and

4. If the eyewitness has previously viewed a photo lineup or live lineup in connection

with the identification of another person suspected of involvement in the offense, the

fillers in the lineup in which the instant suspect participates shall be different from the

fillers used in any prior lineups;

I. If there are multiple eyewitnesses:

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Page 5

1. Each eyewitness shall view photo or live lineups separately;

2. The suspect shall be placed in a different position in the live lineup and/or photo

lineup for each eyewitness; and

3. The eyewitnesses shall not be permitted to communicate with each other until all

identification procedures have been completed;

J. In an identification procedure, no writings or information concerning the instant or any

previous arrest, indictment or conviction of the suspect shall be visible or made known to the

eyewitness;

K. In a live lineup, any identifying actions, such as speech, gestures or other movements, shall

be performed by all lineup participants;

L. In a live lineup, all lineup participants must be out of view of the eyewitness prior to the

identification procedure;

M. When there are multiple suspects, each identification procedure shall include only one

suspect;

N. Nothing shall be said to the eyewitness regarding the suspect’s position in the photo or live

lineup;

O. Nothing shall be said to the eyewitness that might influence the eyewitness’s identification of

any particular lineup member;

P. If the eyewitness makes an identification, the administrator shall seek and document a clear

statement from the eyewitness, at the time of the identification and in the eyewitness’s own

words, as to the eyewitness’s confidence level that the person identified in a given identification

procedure is the perpetrator;

Innocence Project, Inc.

Page 6

Q. If the eyewitness identifies a person as the perpetrator, the eyewitness shall not be provided

any information concerning such person before the administrator obtains the eyewitness’s

confidence statement about the selection;

R. A record of the identification procedure shall be made that includes all identification and

non-identification results obtained during the identification procedures, signed by the

eyewitnesses;

S. Efforts shall be made to perform a live or photo lineup instead of a showup.

1. Showups shall only be performed using a live suspect and in exigent circumstances

that require the immediate display of a suspect to an eyewitness.

2. In the event of the administration of a showup procedure:

a. A full and detailed description of the perpetrator shall be provided by the

eyewitness before the eyewitness observes the suspect. This statement shall also

include information regarding the conditions under which the eyewitness

observed the perpetrator including location, time, distance, obstructions, lighting,

weather conditions, and other impairments, including but not limited to alcohol,

drugs, stress, and visual/auditory disabilities. The eyewitness shall be also be

asked if he needs glasses or contact lenses and whether he was wearing them at

the time of the offense. The administrator shall note whether the eyewitness was

wearing glasses or contact lenses at the time of the identification procedure.

b. The eyewitness shall be transported to a neutral, non-law enforcement location

where the suspect is being detained for the purposes of a showup procedure.

c. Eyewitnesses shall be provided with instructions prior to the showup,

including:

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Page 7

i. The perpetrator may or may not be among the persons in the

identification procedure or, in the case of a showup, may or may not be the

person that is presented to the eyewitness;

ii. The eyewitness should not feel compelled to make an identification;

iii. The investigation will continue whether or not an identification is

made;

iv. The procedure requires the administrator to ask the eyewitness to state,

in his own words, how certain he is of any identification; and

v. The eyewitness is not to discuss the identification procedure or its

results with other eyewitnesses involved in the case and should not speak

with the media;

d. Measures shall be taken by investigators at the showup, including the

administrator of the showup, to reduce potentially damaging or prejudicial

inferences that may be drawn by the eyewitness, including:

i. Refraining from suggesting, through statements or non-verbal conduct,

that the suspect is or may be the perpetrator of the crime;

ii. Removing the suspect from a squad car; and

iii. When practicable, removing handcuffs from the suspect;

e. If there are multiple eyewitnesses, only one eyewitness at a time shall

participate in the showup procedure:

i. Only one of the eyewitnesses shall be present at the location of the

showup procedure;

ii. If a positive identification is made, and an arrest is justified, additional

eyewitnesses shall be shown live or photo lineups; and

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f. If there are multiple suspects, these suspects shall be separated and subjected

to separate showup procedures.

g. If the eyewitness makes an identification, the administrator shall seek and

document a clear statement from the eyewitness, at the time of the

identification and in the eyewitness’s own words, as to the eyewitness’s

confidence level that the person identified in a given identification procedure

is the perpetrator.

T. Unless impracticable, a video record of the identification procedure shall be made that

includes the following information:

1. All identification and non-identification results obtained during the identification

procedures, signed by the eyewitnesses, including the eyewitness’s confidence

statements;

2. The names of all persons present at the identification procedure;

3. The date and time of the identification procedure;

4. In a photo or live lineup, any eyewitness identification(s) of (a) filler(s); and

5. In a photo or live lineup, the names of the lineup members and other relevant

identifying information, and the sources of all photographs or persons used in the lineup;

U. If a video record of the lineup is impracticable, the officer conducting the lineup shall

document the reason therefore, and an audio record of the identification procedure shall be made

which includes the items specified in Section 3, clause T, subclauses 1-5 of this Act. The audio

record shall be supplemented by all of the photographs used in a photo lineup, and photographs

of all of the individuals used in a live lineup or showup; and

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V. If both a video and audio record of the lineup are impracticable, the officer conducting the

lineup shall document in writing the reason therefore, and a written record of the lineup shall be

made which includes the items specified in Section 3, clause T, subclauses 1-5 of this Act. The

written record shall be supplemented by all of the photographs used in a photo lineup, and

photographs of all of the individuals used in a live lineup or showup.

SECTION 4. REMEDIES FOR NONCOMPLIANCE

For any photo or live lineup, or showup procedure that was administered after the date upon

which Section 3 of this Act took effect:

A. Evidence of a failure to comply with any of the provisions of this statute shall be considered

by trial courts in adjudicating motions to suppress eyewitness identification;

B. Evidence of a failure to comply with any of the provisions of this statute shall be admissible

in support of claims of eyewitness misidentification as long as such evidence is otherwise

admissible; and

C. When evidence of a failure to comply with any of the provisions of this statute has been

presented at trial, the jury shall be instructed that it may consider credible evidence of

noncompliance in determining the reliability of eyewitness identifications.

SECTION 5. TRAINING OF LAW ENFORCEMENT OFFICERS

The Department of Public Safety shall create, administer and conduct training programs for law

enforcement officers and recruits regarding the methods, technical aspects and scientific findings

regarding the basis of the eyewitness identification practices and procedures referenced in this

Act.

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SECTION 6. EFFECTIVE DATE

This Act shall take effect on [date].

THE INNOCENCE PROJECT

The Innocence Project was founded in 1992 by Barry C. Scheck and Peter J. Neufeld at the

Benjamin N. Cardozo School of Law at Yeshiva University to assist prisoners who could be proven

innocent through DNA testing. To date, over 230 people in the United States have been exonerated

by DNA testing, including 17 who served time on death row. These people served an average of

12 years in prison before exoneration and release. The Innocence Project’s full-time staff attorneys

and Cardozo clinic students provide direct representation or critical assistance in most of these cases.

The Innocence Project’s groundbreaking use of DNA technology to free innocent people has

provided irrefutable proof that wrongful convictions are not isolated or rare events but instead arise

from systemic defects. Now an independent nonprofit organization closely affiliated with Cardozo

School of Law at Yeshiva University, the Innocence Project’s mission is nothing less than to free the

staggering numbers of innocent people who remain incarcerated and to bring substantive reform

to the system responsible for their unjust imprisonment.

THE INNOCENCE PROJECT