Eyewitness Identification

Police investigation often entails interviewing those who were eyewitnesses to an offense, attaining a description of the culprit, and then later presenting a suspect or suspects to the eyewitness in a lineup or other identification procedure. Lineups, also known as identification parades in Britain, involve a corporeal identification procedure where persons appear before the witness. In a lineup, the witness reviews those who have been assembled and determines whether the culprit is among them. In a photo spread, a noncorporeal identification procedure, an array of photos is placed before the witness. In a show-up identification procedure, which may be corporeal or noncorporeal, the witness is presented with a single individual rather than several, and thus has no others to select from or compare. During a lineup or show-up, persons may be asked to move about or speak so that the eyewitness may use memory of action or speech as well as appearance to make an identification.

Many social scientists and judges believe that erroneous identification testimony is one of the leading causes of wrongful convictions. All eyewitness identification procedures are tests of recognition memory, seeking a match between the memory of the perpetrator and the person presented. Eyewitness identification actually engages three tasks: perception of the original perpetrator, storage in memory, and retrieval from memory. Psychologists studying the fallibility of each task have made suggestions to improve the reliability of eyewitness identification. Error may arise when the witness selects an individual who is the best match, even if that match is not perfect. A sequential lineup presenting one person at a time and attaining a yes or no decision for each minimizes the likelihood of such comparative or relative judgments, and is recommended by the American Psychology/Law Society (AP/LS). Informing the eyewitness that the perpetrator may not be present further reduces comparative judgment. As police conducting the identification procedure may communicate their own view that they have apprehended the right person and pressure the witness, the AP/LS also recommends a double-blind procedure where those administering the procedure are not aware which person is the suspect.

Since 1967, the Supreme Court has overseen procedures in an effort to reduce unreliability and the likelihood of convicting the innocent. Motions to suppress or exclude possibly mistaken eyewitness identification testimony rely on varying constitutional arguments. If an illegal detention or arrest violating the defendant’s Fourth Amendment prohibition against unreasonable seizure preceded the identification procedure, testimony regarding the out-of-court procedure will be excluded as a fruit of the poisonous tree, and possibly also the in-court identification (United States v. Crews [1980]). Lineup participants who are ordered to repeat the words used by the culprit during the crime are not denied their Fifth Amendment privilege against self-incrimination as this is not a testimonial communication (United States v. Wade [1967]). However, the Sixth Amendment right to assistance of counsel does attach when a defendant appears in a lineup after the criminal prosecution has begun, and denial of counsel will require exclusion of some identification testimony (Wade). When suggestive procedures of any type create a substantial likelihood of misidentification, due process will require exclusion of all identification testimony from the witness (Manson v. Brathwaite [1977]).

MARGERY M. KOOSED

References and Further Reading

• Borchard, E.M. Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice. New Haven, CT: Yale University Press, 1932.
• Gross, Samuel H., Loss of Innocence: Eyewitness Identification and Proof of Guilt, Journal of Legal Studies 16 (1987): 395–493.
• Judges, Donald P., Two Cheers for the Department of Justice’s Eyewitness Evidence: A Guide for Law Enforcement, Arkansas Law Review 53 (2000): 231–297.
• Koosed, Margery M., The Proposed Innocence Protection Act Won’t—Unless It Also Curbs Mistaken Eyewitness Identifications, Ohio State Law Journal 63 (2002): 263–314.
• Rattner, Arye, Convicted but Innocent: Wrongful Convictions and the Criminal Justice System, Law and Human Behavior 12 (1988): 283–93.
• U.S. Department of Justice. Eyewitness Evidence: A Guide for Law Enforcement (1999). https://www.ncjrs.org/txtfiles1/nij/178240.txt.
• Wells, Gary L., Mark Small, Steven Penrod, Roy S. Mulpass, Solomon M. Fulero, and C.A.E. Brimacombe, Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, Law and Human Behavior 22 (1998): 603–647.

Cases and Statutes Cited

• Manson v. Brathwaite, 430 U.S. 98 (1977)
• United States v. Crews, 445 U.S. 463 (1980)
• United States v. Wade, 388 U.S. 218 (1967)

See also Due Process; Lineups; Right to Counsel