Statistical analysis has shown that in cases where an individual was exonerated of a crime by DNA evidence, 25% of those cases involved a misidentification by a witness of the suspect. Unfortunately, misidentifications in some cases have lead to wrongful convictions and lengthy prison sentences. Human memory is not foolproof. Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex.
The process of remembering consists of 3 stages: acquisition – the perception of the original event; retention – the period of time that passes between the event and the eventual recollection of a piece of information; and retrieval – the stage during which a person recalls stored information. At each of these 3 stages, the memory can be affected.
Recently, a few States have taken a closer look at the use of identification evidence at Court hearings. New Jersey, in the aftermath of a landmark decision (State v. Henderson, 208 NJ 208 (2011)), has adopted a new jury instruction on identification, which is meant to educate jurors on how to properly view identification evidence in consideration of scientific studies as to the nature of human memory. Although Michigan has yet to adopt this instruction, the factors considered by New Jersey Courts are important to consider when building a defense for any person in which identification evidence is used:
First, whether the lineup procedure was administered “double blind”, meaning that the officer who administers the lineup is unaware of who the suspect is and the witness is told that the officer doesn’t know who the suspect is. A lineup administrator who knows which person or photo in the lineup is the suspect may intentionally or unintentionally convey that knowledge to the witness. That increases the chance that the witness will identify the suspect, even if the suspect is innocent. For that reason, whenever feasible, live lineups and photo arrays should be conducted by an officer who does not know the identity of the suspect.
Second, whether the witness was told that the suspect may not be in the lineup and that they need not make a choice. Many photo line ups take place without the presence of an attorney to protect the interests of the suspect, and reduce the chances that the identification is not tainted by suggestive procedures.
Third, whether the police avoided providing the witness with feedback that would cause the witness to believe that he or she selected the correct suspect. Similarly, whether the police recorded the witnesses’ level of confidence at the time of the identification. Feedback occurs when the police officers, or witnesses to an event who are not law enforcement officers, signal to a witness that he or she correctly identified the suspect. That confirmation may reduce doubt and produce a false sense of confidence in a witness. Feedback may also falsely enhance a witness’s recollection of the quality of his or her view of an event.
Fourth, whether the witness had multiple opportunities to view the same person, which would make it more likely for the witness to choose this person as the suspect. The witness’s exposure through photographs, newspaper accounts, television reports, other court appearances, lineups, showups, etc. may affect the independence and reliability of the witness’s identification.
Fifth, whether the witness was under a high level of stress. Even under the best viewing conditions, high levels of stress can reduce an eyewitness’s ability to recall and make an accurate identification.
Sixth, whether a weapon was used, especially if the crime was of short duration. The presence of a weapon can distract the witness and take the witness’s attention away from the perpetrator’s face. As a result, the presence of a visible weapon may reduce the reliability of the subsequent identification if the crime is of short duration.
Seventh, how much time the witness had to observe the event. Although there is no minimum time required to make an accurate identification, a brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure to the perpetrator. In addition, time estimates given by a witness may not always be accurate because witnesses tend to think events lasted longer than they actually did.
Eighth, whether the witness possessed characteristics that would make it harder to make an identification, such as the age of the witness and the influence of drugs or alcohol. An identification made by a witness under the influence of a high level of alcohol at the time of the incident tends to be more unreliable than an identification by a witness who drank a small amount of alcohol.
Ninth, whether the perpetrator possessed characteristics that would make it harder to make an identification. Was he or she wearing a disguise? Did the suspect have different facial features at the time of the identification. The perpetrator’s use of a disguise can affect a witness’s ability both to remember and identify the perpetrator. Disguises like hats, sunglasses, or masks can reduce the accuracy of an identification. Similarly, if facial features are altered between the time of the event and a later identification procedure, the accuracy of the identification may decrease.
Tenth, how much time elapsed between the crime and the identification. Memories fade with time. The more time that passes, the greater the possibility that a witness’s memory of a perpetrator will weaken.
Eleventh, whether the case involved cross-racial identification. Research has shown that people may have greater difficulty in accurately identifying members of a different race.
Twelfth, whether the observation of the perpetrator was close or far. The greater the distance between an eyewitness and a perpetrator, the higher the risk of a mistaken identification. In addition, a witness’s estimate of how far he or she was from the perpetrator may not always be accurate because people tend to have difficulty estimating distances.
Thirteenth, whether or not the lighting was adequate during the observation.
Fourteenth, the confidence of the witness, standing alone, may not be an indication of the reliability of the identification. Although some research has found that highly confident witnesses are more likely to make accurate identifications, eyewitness confidence is generally an unreliable indicator of accuracy. Even a identification made in good faith may be mistaken.
Fifteenth, the composition of the lineup (if a lineup occurred) should be considered. A suspect should not stand out from other members of the lineup. The reason is simple: an array of look alikes forces witnesses to examine their memory. In addition, a biased lineup may inflate a witness’s confidence in the identification because the selection process seemed so easy to the witness. Lineups should include a number of possible choices. The greater the number of choices, the more likely the procedure will serve as a reliable test of the witness’s memory.
Sixteenth, whether or not a “showup” occurred. A showup occurs when the Defendant is the only person shown to a witness at a particular time to make an identification. Even though such a procedure is suggestive in nature, it is sometimes necessary for the police to conduct such a procedure. Although the benefits of a fresh memory may balance the risk of undue suggestion, showups conducted more than 2 hours after an event present a heightened risk of misidentification. Also, police officers should instruct witnesses that the person they are about to view may or may not be the person who committed the crime and that they should not feel compelled to make an identification.
In light of all these factors, it should be emphasized that the Judge or jury sitting in judgment of a particular case must be convinced as to the identity of the Defendant as the perpetrator beyond a reasonable doubt in order to convict him or her of the alleged crime. The identity can be proven by either direct evidence (for example, the direct observation made by a witness as to a crime) or circumstantial evidence (for example, DNA evidence, fingerprint evidence, etc.). If the identification of the Defendant as the perpetrator of the alleged crime cannot be determined beyond a reasonable doubt, the Judge or jury must find the Defendant not guilty.
Hopefully in the future Michigan will follow New Jersey’s lead as it relates to in Court identifications and out of Court identifications. Whenever identity is a factor in a criminal defense, the defense lawyer should address each of the factors considered by New Jersey, when applicable, during the litigation of the case. It may be beneficial to hire the services of an expert witness to testify to the information contained in this blog in order to educate the Judge and/or jury of all the different ways that a misidentification of a suspect can occur.