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The importance of strict inspection of eyewitness proof to prevent mistaken identification according

The Fragility of Eyewitness Memory From Washington Lawyer, November 2014 By Sarah Kellogg One of the most critical fixtures of the legal system—the identification of an eyewitness—has occasionally turned out to be one of its most erratic elements, influenced by everything from the race of a suspect to bad lighting to aggressive police interrogators. A cadre of attorneys, academics, and social scientists believe eyewitnesses and their identifications of criminal suspects are far too dependent on the human brain to precisely record the details of traumatic events.

A feat, they claim, that is nearly impossible to do with complete accuracy. Certainly, memories can be true; however, they are undoubtedly shaped by the telling and the listener.

They can be exact, but they are more often imprecise, wrought by flights of fancy and fear. They can be reliable in court, though it is best if they are fortified with forensic evidence or another eyewitness. There has been research on the fragility of eyewitness identifications for nearly 40 years, yet social scientists say that it took DNA testing and a host of shameful exonerations of wrongly convicted people for the police and courts to take the research more seriously. In fact, they say, DNA testing is keeping eyewitness testimony honest—painfully so.

The legal community, law enforcement officials, and the court system have been uneven in addressing the research for fear of the consequences. There are few options for supplanting eyewitness identification, observers say, noting that in many criminal trials there is only one witness for the prosecution.

And, in most cases, prosecutors feel those eyewitnesses not only tell the truth, but they also get it right. In recent years, however, safeguarding eyewitness evidence began to take on a new urgency as the number of exonerations of wrongfully convicted individuals due to misidentifications increased. It became clear that there were steps that law enforcement officials could and should take to mitigate the mishandling of witnesses and improve the accuracy of their testimony in court.

Advocates urged the police to do more to maintain the identification process by adopting written guidelines for identifications, presenting unbiased lineups, and initiating efforts to gauge witness confidence early in the process, among other reforms. They clamored for judges to adopt policies to instruct juries about the shortcomings of memory and eyewitness identifications as well.

Prosecutors have been forced to both defend the current system, which works well in the vast majority of cases, and also look for ways to ensure the process remains fair and just in the handful of problematic cases. Meanwhile, many judges have been reluctant to move beyond the U. The authority of the eyewitness should not be further eroded by the failures of decision makers to acknowledge the frailties of memory, the inadequacy of law enforcement staffing, and the inflexibility of the court.

Exonerations Will Out Almost daily there are stories of prisoners who were sent to jail because of false eyewitness testimony and who the importance of strict inspection of eyewitness proof to prevent mistaken identification according released years later thanks to DNA testing.

Eyewitness misidentification is a problem today in the United States, and there are few in the legal community who would deny it. They would, however, debate its scale. To date, 1,432 wrongly convicted prisoners—about 35 percent or 506 of them imprisoned due to mistaken identification—have been exonerated, according to the National Registry of Exonerations NREwhich has tracked releases since 1989.

Along with witness misidentification, other factors in exonerations included false and misleading evidence, perjury, and official misconduct, among others.

The wave of exonerations has grown more substantial in the past few years, a reflection of the wide availability of DNA testing technology as well as a willingness by prosecutors and the courts to review suspect cases.

In 2013 the registry reported 91 exonerations, a record number for any single year since the importance of strict inspection of eyewitness proof to prevent mistaken identification according two law schools started tracking them. A sister archive of exonerations compiled by the Innocence Project, the national litigation and public policy group that has a division in the District of Columbia, estimates that misidentification played a role in some 72 percent of the cases it has taken that were overturned later by DNA testing.

Factors contributing to the exonerations for all three jurisdictions were false or misleading evidence, perjury, and mistaken identification.

Nationally, mistaken identification and the resulting exonerations happened most frequently in cases of sexual assault, the NRE reports.

Some 80 percent of exonerations in sexual assault cases were due to misidentification compared to 26 percent in child sexual abuse and 27 percent in homicide cases.

  • Meanwhile, many judges have been reluctant to move beyond the U;
  • A cadre of attorneys, academics, and social scientists believe eyewitnesses and their identifications of criminal suspects are far too dependent on the human brain to precisely record the details of traumatic events;
  • Attorneys say the changes by law enforcement have been helpful, but they are not consistent or broad enough in scope;
  • It became clear that there were steps that law enforcement officials could and should take to mitigate the mishandling of witnesses and improve the accuracy of their testimony in court.

I think the lesson really is that any system run by people is going to have wrongful convictions. Memories are formed in the brain through a complex electrochemical reaction that occurs inside neurons, the Lego blocks of the nervous system. The results of this process are layers of memory, ranging from immediate or sensory memory to skill memory to emotional memory that records the sensations, images, and scents of an emotional situation.

Safer, professor of applied-experimental psychology at the Columbus School of Law and a national expert on eyewitness testimony. On a day-to-day basis, we have no problem recognizing people. But really, can you remember the person who waited on you the last time you were in McDonalds?

The brain has a bias toward negative activities and events, and so does memory. That means it tends to focus more on unpleasant experiences as a way to adapt in order to be better prepared for the next looming encounter. Additionally, when people are severely traumatized, their brains stop operating in an integrated fashion.

Washington Lawyer

They are more likely to pick up on distinct colors, images, or odors—sort of a 3D memory handicraft with surround sound and smell-o-vision. Every time someone remembers something from the past, the brain reconstructs that image, and not always with the exact same details. Sometimes they may be right, but being positive and being certain is not a guarantee of being accurate. You get people who come in and make positive identifications where their opportunity to observe what happened was very limited.

It is a reality of the system. Cheit, a national memory expert and a professor of political science and public policy and director of undergraduate studies at Brown University. I think the final decision is still out on it, though. A Guide for Law Enforcement. The guide reflected recommendations from a working group of leading researchers and practitioners, and it sought to promote accuracy in eyewitness identifications by improving the handling of eyewitness evidence.

The guide tackled problems that arise in identification through critical system and estimator variables. System variables are those controlled by the criminal justice system such as how photo or physical lineups are conducted and the way police officers discuss and record witness statements.

Estimator variables are more situational; they include lighting at the crime scene, race differences between suspect and witness, and the distance between the event and the witness.

Considered the gold standard for eyewitness identification, the guide outlined recommended procedures in a number of areas, including standardized instructions for witnesses; having a single suspect the importance of strict inspection of eyewitness proof to prevent mistaken identification according lineup; using a minimum of five so-called fillers or stand-ins in a lineup; recording witness statements; preparing lineup reports; and standardizing the photographs of photo lineup members.

There were two key areas that the guide did not fully tease out or endorse at the time, but they have come to gain greater acceptance in the ensuing years: The NIJ guide also noted in 1999 that there was no consensus on whether sequential or simultaneous lineups were more advantageous.

A sequential lineup is a lineup where members are shown, physically or through a photo array, suspects one at a time rather than a simultaneous lineup where they are all introduced at the same time. In recent years, blind administration of lineups along with sequential lineups have gained in popularity among the hundreds of law enforcement agencies that have adopted more stringent rules governing eyewitness identification.

Each has its own rules of thumb about eyewitnesses that are basically passed down from one generation to the next. That needed to change. Large agencies with more than 500 officers consistently have written policies for eyewitness identification procedures, with a number of the safeguards put into place. Attorneys say the changes by law enforcement have been helpful, but they are not consistent or broad enough in scope.

They say it would be far more helpful for defendants and eyewitnesses if there was some uniformity between jurisdictions, especially within a single state where there can be hundreds of different approaches to eyewitness evidence.

Released in October 2014, Identifying the Culprit: The panel determined that action was necessary by both law enforcement and the courts to offset concerns about the validity of eyewitness identifications.

The report recommended that law enforcement develop and employ standardized witness instructions, document witness confidence levels, videotape identification procedures, adopt double-blind lineups and photo array procedures, and train officers in proper identification techniques. Additionally, the report encouraged the courts to adopt new rules governing eyewitness testimony, including conducting pre-trial judicial inquiries into the reliability of eyewitness evidence, alerting juries to prior identifications, allowing scientific experts to testify on eyewitness viability, and encouraging judges to use jury instructions to convey information about key factors about eyewitness identification.

Additional research is needed on the efficacy of simultaneous and sequential lineups, the report concluded. It recommended the creation of the National Research Initiative on Eyewitness Identification to continue broad research on the subject. Taking Action From the Bench Courts around the United States have been less eager to jump into the fray and find a judicial solution to eyewitness evidence problems.

Again, a haphazard approach reigns as individual judges decide what to do with problematic eyewitness identifications and whether defense attorneys can bring in expert witnesses to refute the eyewitness testimony.

It requires a lot of retooling of judicial and legal thinking to address those issues. Essentially what the people on the other side want to do is keep these cases out of court entirely. Supreme Court could have pressed for a nationwide standard for eyewitness testimony, but it declined to do so with its decision in the eyewitness identification case Perry v. New Hampshire in 2012.

Instead, the justices shifted the responsibility to state officials, allowing them to choose whether or not to change their laws.

Most governors and state legislatures have preferred the path of inaction. Convinced by the research and anecdotal evidence, a handful of state courts are implementing changes to the rules of procedure around eyewitness identifications in the police station, and jury instructions in the courtroom. New Jersey and Oregon are forerunners, having implemented strict guidelines for the treatment of eyewitness testimony. Henderson in 2011, the New Jersey Supreme Court rejected the test for evaluating eyewitness identification originally laid out by the U.

Supreme Court in its Manson v. Brathwaite decision in 1977, a test that had been adopted by every other state in the nation in the years following the decision. Additionally, the New Jersey justices issued new rules that made it easier for defendants to challenge eyewitness evidence. Under the rules, when a defendant presents evidence of a suspicious identification, the court must hold a hearing to consider the challenge.

Disputed evidence is admitted, and the judge is required to explain to jurors the factors that could increase the chance of misidentification. Defense attorneys are hoping the court will side with them in their bid to have judges caution jurors about how easily memory can be influenced and how a confident witness does not translate into a more reliable witness.

They are also hoping that the court will find that a failure to identify a witness in a photo array or police lineup may reduce the reliability of that witness if he or she later identifies the suspect.

They still hope to see police and prosecutors adopt the blind administrator for lineups, early tracking of the degree of confidence of the eyewitness in making the identification, and randomizing of photographs in photo lineups.

Recent Area Developments There have been signs of more energetic interest in protecting the authority of eyewitness identification and eliminating the need for exonerations.

The division is responsible for opposing post-conviction appeals before the D. Superior Court and the U. District Court for the District of Columbia. Defense attorneys, wrongful conviction organizations, prosecutors, and defendants can the importance of strict inspection of eyewitness proof to prevent mistaken identification according the cases. It now employs both blind and sequential lineups.

Maryland has a law requiring law enforcement to have written policies detailing their eyewitness procedures. Similar problems exist in Virginia. A 2005 law requiring jurisdictions to adopt an eyewitness identification policy has been widely ignored by law enforcement agencies, and advocates are hoping that the General Assembly will come back to the subject in the next session to adopt recommended reforms. The public and government officials are incredibly well informed about forensic science and completely ignorant about the limits of their own minds and memories.

The human memory is in some ways very much like evidence. You can contaminate it by asking leading questions. Even eager prosecutors and police looking for justice cannot deny the frailty of memory in traumatic moments—and the delicate, subtle role memory plays in the criminal justice system.

For some, the best way to construct a bulwark to support eyewitnesses in court is to develop a preponderance of evidence that backs up eyewitness accounts.