Lying Eyes: Eyewitness Misidentification in the Criminal Justice System

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In the Marx brothers’ movie Duck Soup, Chico Marx famously says, “Who are you going to believe, me or your own eyes?

Eyewitness misidentification is the most significant contributing factor to wrongful convictions. According to The Innocence Project, 72% of the people exonerated by post-conviction DNA evidence were initially convicted, at least in part, on the basis of an incorrect eyewitness identification. What can explain the phenomenon that witnesses and victims of crime, when recounting such significant (and traumatic) events, are so often mistaken? In this episode, we evaluate the factors that contribute to eyewitness misidentification and discuss a few of the reforms advocated to increase the reliability of eyewitness identification and minimize mistakes.

We discuss the following, in detail:

– In evaluating the evidence against a defendant, an eyewitness identification is accorded substantial weight by jurors. The conventional wisdom is that a person who witnesses a crime, or is a victim, could accurately recall the perpetrator and positively identify him.

– Social scientists have divided the factors contributing to incorrect identifications into two groups: estimator variables and systemvariables.

– Estimator variables refers to factors that are not under the control of the police or justice system.

– Examples:

– Race: studies have demonstrated that people are substantially more likely to make a mistaken identification when the perpetrator is from a different race or ethnic group.

– Distance from perpetrator and lighting: Naturally, the farther the distance from the perpetrator and the worse the lighting, the less chance there is of an accurate identification.

– Emotional stress: it may seem counterintuitive, but high psychological stress actually impairs memory- making it more likely that witnesses will incorrectly identify their perpetrator. This is especially true when there is a weapon present, as the witness tends to focus on the weapon rather than the face of the perpetrator.

– Memory: our memory does not function as a “sponge” that retains everything we see and hear; rather, we retain some or most of what we perceive, but many gaps remain- which we then subconsciously fill with other memories (such as newspaper articles we read, photos we saw, etc.); our expectations or beliefs of what should or was likely to have happened; biases; and general knowledge.

– System variables refers to factors that are under the control of the police or justice system, such as the behavior of the police, communication with witnesses, and procedures for police lineups.

– Suggestibility: police officers present during a suspect lineup may intentionally or unintentionally hint to a certain suspect. The witness wishes to be helpful and to remove a dangerous person from the streets, and is often easily swayed. Here are a few examples of how this plays out:

– “Take another good look at no. 3: does he look like the guy who assaulted you?”

– If the witness appears to be focusing on the “wrong” person: “please take all the time you need and look carefully at each of them before making any decisions.”

– “Great job, that’s the guy!”

– Sometimes the police officer need not say anything. For instance, the witness may notice the officer staring at a specific person for too long and realize that this person is in fact the focus of the investigation.

– Selection of “fillers”:

– Lineups typically consist of the primary suspect and five or six “fillers”- who are put in to “distract” the witness.

– The problem is that studies have shown that witnesses often engage in “relative judgment” (i.e. comparing the people in the lineup to each other and picking the one that looks most like the perpetrator) rather than “absolute judgment” (i.e. comparing each person independently to their recollection of the perpetrator).

– If the suspect looks different, or stands out in some way from the fillers, the witness may be led to identify the outlier as the perpetrator.

– Here a few examples of real cases:

– The defendant is the only black person standing next to five white people.

– The defendant is the only person in the lineup wearing a baseball cap, consistent with the witness’ description of the perpetrator as wearing a cap.

– The defendant is the only person with a beard.

– Simultaneous lineups: As noted above, the problem of “relative judgment” is exacerbated by the common method of putting the suspect in a lineup simultaneously with the fillers, which allows for comparison with others rather than to one’s recollection.

– There are several reforms advocated by organizations committed to reforming the problem of eyewitness misidentification. These include the following:

– “Double blind” lineup– arranging the lineup so that neither the witness nor the police officer administering the lineup know which person is the suspect. This eliminates the problem of suggestions (inadvertent or otherwise) by the police officer.

– Sequential lineup vs. simultaneous lineup– eliminating the simultaneous lineup and having the witness evaluate each person in the lineup separately, without knowing who is next or if there are any additional persons coming up in the lineup.

– Selection of fillers to closely match eyewitness’ description: this will limit the possibility that the suspect will stand out and be picked on the basis of vague resemblance to the perpetrator rather than an absolute identification.

– Instructions: the witness will be instructed that (1) the perpetrator may or may not be in the lineup; (2) the witness should not look to the police officer or anyone else for guidance; and (3) the investigation will proceed regardless of the ability of the witness to make an accurate identification. These instructions are designed to remove some of the witness’ pressure to make an identification when facing doubts.

– Recording identification: in cases where the witness’ identification is wavering, unclear, or influenced by the administrator of the lineup, videotaping the identification allows the defendant to question the reliability of the identification at trial.

– Confidence statement: asking the witness to state how confident he or she is in the identification to decrease the risk of a wrongful identification.

– Educating the jury: Presenting expert testimony regarding the unreliability of eyewitness identification to educate the jury as to the problems inherent in eyewitness identification and encourage them to take caution when evaluating the strength of the identification.