Law enforcement officers investigating a crime are largely focused on gathering evidence, locating witnesses and determining what they observed. Investigators and prosecutors especially seek out eyewitnesses because of their ability to provide critical information for a case, including identifying an offender. However, eyewitness accounts are not free from errors or issues. In fact, according to the Innocence Project, mistaken identification of an offender is a major cause of wrongful convictions.
When your eyes deceive you
The Innocence Project reported that eyewitness misidentification played a role in more than 70 percent of convictions later overturned by DNA testing. Two recent news stories have shed light on this issue and the consequences of unreliable eyewitness accounts.
Earlier this month, an Oklahoma judge freed Johnny Tallbear, a man who spent more than 25 years behind bars, for the 1992 murder of a homeless man — a crime he did not commit, according to DNA and serology testing, which found no evidence of his DNA at the scene. The case against Tallbear allegedly hinged on an account from an eyewitness who was roughly a football field’s-length away from the crime.
Similar news came out of Dallas last month when Quintin Alonzo was exonerated after serving 17 years in prison for a murder he did not commit. An eyewitness mistakenly identified Alonzo in a photo lineup, which allegedly almost immediately ended the investigation, according to Alonzo’s attorney.
“Who looks like a criminal?”
We know eyewitnesses, like anyone else, succumb to varying degrees of stress, outside influence and post-event contamination. Even environmental factors such as weather conditions, distance and light affect what a witness sees. One of the most challenging — and crucial — responsibilities of the investigator is to determine whether an eyewitness has actually seen what he or she purports to have seen.
This leads me to wonder: Do eyewitnesses or people in general have a predisposed notion of what guilt looks like? I recently conducted an exercise in the office with my colleagues that involved viewing a photo lineup consisting of 10 individuals. These individuals appeared to be of the same race and age, and generally had the same physical characteristics. They were dressed uniformly and all of the pictures were in black and white. I asked each colleague to identify the offender in the lineup, without knowing anything about the case on which I was working. I simply asked them, “Who looks like a criminal?”
Needless to say, I was astonished when four out of five colleagues picked the same suspected offender. As I included more colleagues in the exercise, the percentage of those who identified the offender lowered, but not significantly. They all cited that the person somehow looked guilty, and subsequently, like a criminal.
How to catch the (right) criminal
My experience has shown that criminals can look like any random person — including me for that matter. While my exercise was not a formal scientific study, it did show that investigators like myself need to be mindful of misidentification and administer photo lineups in a manner that follows proper procedures guided by research and policy.
Best practices for these procedures include the following:
- Proper composition of a lineup, so all lineup members match the offender’s description. The lineup should contain no fewer than six members, but no more than 10. All of the photos should be either in color or in black and white, not mixed.
- Blind administration of photo lineups using an independent investigator who is not directly participating in the investigation and who does not know who the suspect is in the lineup. This could be achieved by using an automated process whereby a computer generates and displays the lineup while still conforming to its blind administration. A third method involves using a manual process whereby photos are randomly numbered, shuffled and presented to the eyewitness while still conforming to blind administration procedures.
- Proper instructions to eyewitnesses via a written document. Nothing should be conveyed to the eyewitness that may influence the identification process. The eyewitness should sign the document, agreeing he or she has read its contents and understands its instructions.
- Statements of confidence from the eyewitness at the time of the identification. The accuracy of the identification appears higher when a confidence level is conferred.
- Video and/or audio recordings of the identification processes to ensure accountability.
While photo lineups are a necessary part of the investigative process, everyone in the law enforcement and investigations community can work harder to help determine eyewitness identifications’ accuracy and plausibility. One recent positive step was Louisiana Governor John Bel Edwards signing Senate Bill 38, which requires police agencies in the state to abide by best practices in eyewitness identification procedures, including many of those we cited above.
Eyewitnesses will never be perfect sources. However, employing proper procedures will increase the accuracy of the identification process and help to mitigate problems — and wrongful convictions — in the future.