Eyewitness identification procedures are a principal investigative tool for law enforcement agencies. Lineups, or identification parades as they are known in Britain, involve presenting persons before those who witnessed a crime to give the witness an opportunity to ascertain whether the culprit who committed the crime is among the group assembled. This is distinguished from a show-up, in which a single suspect is presented to an eyewitness, or a photo spread, in which only photos are displayed.
An eyewitness’ selection of a suspect will generally lead to prosecution, and an incourt identification will often lead to conviction. Numerous studies have shown that mistaken eyewitness identification is the most frequent source of wrongful convictions of the innocent. Before 1967, the reliability of eyewitness identification testimony was simply a matter to be brought out in direct and cross-examination at trial and argued to the jury. But in 1967, the Supreme Court recognized eyewitness identification was rife with risk of error (United States v. Wade) and sought to reduce the risk of mistake by preventing the suggestive influences that may gratuitously inject mistake into an already risky process. The Court provided a right to counsel’s presence during lineups in Wade and agreed that due process violations may occur when the police have used unnecessarily suggestive procedures that were conducive to irreparable mistaken identification (Stovall v. Denno, Manson v. Brathwaite).
Many empirical studies were conducted on the lineup process in the 1980s and 1990s in an effort to prevent false identifications. Professional associations that have studied the issue, particularly the American Psychology/Law Society (AP/LS), recently issued recommendations tied to this research in a report entitled ‘‘Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads.’’ The AP/LS’s four recommendations to enhance the reliability of the lineup process are: (1) ‘‘The person who conducts the lineup or photospread should not be aware of which member of the lineup or photospread is the suspect (a ‘‘double-blind procedure’’). (2) Eyewitnesses should be told explicitly that the person in question might not be in the lineup or photospread and therefore should not feel that they must make an identification. They should also be told that the person administering the lineup does not know which person is the suspect in the case. (3) The suspect should not stand out in the lineup or photospread as being different from the distractors based on the eyewitness’ previous description of the culprit or based on other factors that would draw extra attention to the suspect. (4) A clear statement should be taken from the eyewitness at the time of the identification and prior to any feedback as to his or her confidence that the identified person is the actual culprit.’’ The Department of Justice has recently published its own report entitled Eyewitness Evidence: A Guide for Law Enforcement that incorporates some, but not all, of the AP/LS recommendations. There is a growing consensus that reforms are needed if we are to achieve a more reliable criminal justice system.
MARGERY M. KOOSED
References and Further Reading
- Borchard, E. M., Convicting the Innocent: Sixty-five actual errors of criminal justice (1932).
- Connors, Edward, et al., Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, U.S. Dept. of Justice NCJ 161258 (1996).
- Gross, Samuel H., Loss of Innocence: Eyewitness Identification and Proof of Guilt, Journal of Legal Studies 16 (1987): 395–453.
- 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): 283–293.
- U. S. Department of Justice, Eyewitness Evidence: A Guide for Law Enforcement, www.ncjrs.org/txtfiles1/nij/178240.txt. (1999).
- Wall, P., Eyewitness Identification in Criminal Cases (1965).
- Wells, Gary L., et al., 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)
- Stovall v. Denno, 388 U.S. 293 (1967)
- United States v. Wade, 388 U.S. 218 (1967)
See also Due Process; Eyewitness Identification; Right to Counsel