yewitness identification testimony is one of the most widespread and powerful forms of evidence in our criminal justice system. Much like trace physical evidence, however, eyewitness evidence is highly susceptible to contamination if it is not collected carefully according to scientific protocols. In Texas, eighty-five percent of all wrongful convictions exposed by DNA testing have involved incorrect eyewitness identifications.
The criminal justice system cannot do without eyewitness evidence. Though DNA exonerations have highlighted its inherent flaws, the good news is that extensive research conducted over decades has identified ways to minimize the risk of mistakes.
Texas currently has no statutory standards regarding the conduct of photo or live lineups. Furthermore, though scientifically-grounded best practices for conducting identification procedures have been around for more than a decade, a recent survey by The Justice Project of over 1000 Texas police and sheriff ’s departments yielded an even more troubling finding: eighty-eight percent of law enforcement agencies have no written policies or procedures for the conduct of photo or live lineups. The few policies that do exist are more often than not vague and incomplete. Only a tiny fraction of the departments have implemented best practices for eyewitness procedures recommended by the U.S. Department of Justice, the International Association of Chiefs of Police, the American Bar Association, and others.
Eighty-eight percent of Texas law enforcement agencies have no written policies or procedures for the conduct of photo or live lineups.
Texas must require law enforcement agencies to adopt written policies and procedures for the conduct of photo and live lineups that implement the following key safeguards:
- Complete documentation of identification procedures: Given the overwhelming importance of eyewitness testimony and the weight afforded to it by juries, it is essential to fully document photo or live lineups. Thorough documentation helps a jury to assess the eyewitness evidence appropriately and minimizes the effects of reinforcing feedback that can distort the confidence level of an eyewitness between the time of the identification and the trial. Documentation of an eyewitness identification procedure must include the photos used in a photo lineup or a photograph of a live lineup and all dialogue and witness statements made during the procedure. When an identification is made, it is essential to have documentation of the witness’s degree of confidence in the identification, in the witness’s own words and prior to any feedback from authorities. It is important to fully document all procedures, even those that do not result in an identification. Electronic recording of photo and live lineups provides the most complete record of these critically important investigative procedures.
- Cautionary instructions: Regardless of whether the true perpetrator is in a lineup, an eyewitness may feel pressure to make an identification. Prior to presenting the lineup, the eyewitnesses should be instructed that the perpetrator may or may not be included in the lineup and that they should not feel compelled to make an identification. Cautionary instructions of this sort remove some of the pressure on the eyewitness to choose a suspect when the culprit may not be in the lineup. Extensive research has demonstrated that cautionary instructions reduce incorrect identifications with no decrease in correct picks.
- Fair lineup composition: Effective selection of fillers when composing a lineup can help reduce the risk of identifying an innocent suspect. Only one suspect should appear in each lineup and at least five fillers should be included. Rather than selecting fillers based on their resemblance to the suspect, which makes the witness’s task more complicated, fillers should be selected to resemble the witness’s description of the perpetrator. Most importantly, the suspect or the suspect’s photo should not unduly stand out and should be presented in a uniform format to that of the fillers. Fair composition of photo and live lineups allows authorities to judge the reliability of an eyewitness effectively.
- Neutral blind lineup administration: The person who administers the photo or live lineup to a witness should not know the identity of the suspect. The purpose of keeping the administrator “blind” as to which person in the lineup is the suspect is to prevent the administrator from unintentionally influencing the results. This is generally done inadvertently through verbal or non-verbal behavior. Witnesses may be very motivated to make an identification and seek to interpret the behavior of the lineup administrator for cues about the suspect, even if no such cues exist. Finally, a double-blind protocol also eliminates the problem of investigators interpreting ambiguous witness comments and other behavior through the lens of their theory of a suspect’s guilt.
- Avoidance of repeated exposure of the suspect to a witness: Police departments must adopt policies that address the inherent risk in repeatedly presenting a witness with a suspect or a suspect’s photograph. In some exonerations, a witness did not identify a suspect in an initial lineup but subsequently identified him in a later lineup (in which the only common person was the one wrongfully convicted). Because of the fragile nature of witness memory, particularly the possibility of “memory transference” between events, multiple exposures undermine the reliability of an identification.
- Sequential presentation option: In addition to the above measures, police departments should consider implementing sequential presentation of lineups. Traditionally, eyewitnesses are shown a photo or live lineup in which the lineup members are presented as a group. An eyewitness viewing a lineup tends to make a judgment about which individual looks most like the perpetrator relative to the other members of the lineup. This natural tendency toward “comparison shopping” is problematic when the suspect in the lineup is not in fact the perpetrator. Presenting the photos or lineup members one at a time discourages the tendency to judge the lineup members against each other and to make an identification through a process of elimination, in favor of a more direct comparison of each person to the witness’s memory.
Regardless of whether the true perpetrator is in a lineup, an eyewitness may feel pressure to make an identification.
Many studies indicate that sequential presentation reduces error, although some researchers believe that the superiority of sequential presentation has not been established. Texas departments may want to consider the sequential option as more field-testing data is accumulated.
