The Urgent Need to Reform Police Collection of Eyewitness Evidence

Click here to read an original op-ed from the TED speaker who inspired this post and watch the TEDTalk below.

Our criminal justice system relies heavily on eyewitnesses, who provide police with suspect descriptions, identify suspects in lineups and photo arrays, and testify at criminal trials. But leading memory researchers including Elizabeth Loftus have demonstrated that human memory is not like a recording device, and cannot objectively document events. Rather, 30 years of scientific research by Loftus and others has firmly established that memory is faulty, constructive, and susceptible to suggestion.

Faulty memory would not be so problematic if not for the real human costs within the criminal justice system. Figures from the Innocence Project, a group dedicated to exonerating the wrongly convicted through DNA testing, show that 75 percent of wrongful convictions later overturned by DNA evidence involved erroneous eyewitness identification. While this figure is shocking, it represents only the tip of the iceberg of innocence cases, given that many crimes have no testable DNA evidence available. In fact, the Innocence Project estimates that between 2 percent and 5 percent of all U.S. prisoners are innocent, a significant number having been convicted with erroneous eyewitness evidence. Accordingly, eyewitness evidence collection practices are in urgent need of reform.

Indeed, simply because police secure an eyewitness account cannot mean that a criminal investigation should cease. -- Tara Lai Quinlan

A number of common sense procedures can be implemented by police to reduce the likelihood of eyewitness misidentifications, including those proposed by Gary Wells and the U.S. Department of Justice's National Institute of Justice. The approach requires eyewitness evidence collection to be guided by very clear protocols similar to the collection of physical evidence like hair, blood and semen. First, before a lineup, a witness must be instructed that the suspect might not be included in the lineup, thereby reducing pressure on a witness to identify someone. Second, lineup "fillers", meaning the individuals in the lineup other than the suspect, must closely resemble the suspect in key physical respects like height, body type, haircut, facial hair, age, or other identifiable physical characteristics, to avoid making the suspect readily distinguishable solely based on unique physical traits. Third, lineups must be conducted by a "blind" administrator, meaning someone who does not know who the suspect is or whether they are included in the lineup. Fourth, a witness examining photo arrays must be shown photos sequentially and not simultaneously, meaning a witness must evaluate each photo on its own rather than compared with other photos. Fifth, all lineups must be videotaped to record both the administrator's instructions to the witness and the witness's certainty about their identification. Finally, eyewitness evidence must not exclude the collection of other evidence, particularly physical evidence that can independently corroborate a witness's account. Indeed, simply because police secure an eyewitness account cannot mean that a criminal investigation should cease.

While the procedural reforms for collecting eyewitness evidence seem like common sense, implementation proves much more difficult. Illinois experienced the challenges of reforming eyewitness identification procedures earlier this year when Chicago police opposed legislative efforts to mandate lineup reforms including blind lineup administrators and lineup videotaping. Chicago police contended that the measures were impractical, expensive, and could hinder witness cooperation. The bills' sponsor, former prosecutor Representative Scott Drury, countered that the measures would help police make stronger cases, prevent misconduct and unintentional errors, and reduce wrongful convictions.

Why then would police resist seemingly common sense reforms to eyewitness identification procedures? The issue has less to do with the sensibility of the measures themselves and more to do with the complex nature of policing culture. Police researcher Wesley Skogan has found that police officers are often resistant to measures mandating them to change the way they perform their jobs. Police can be particularly resistant to procedural changes ordered by high-level police bureaucrats, politicians and lawyers who lack front lines policing experience. But initial police resistance to reform does not mean police cannot accept evidence-based reforms and adopt new approaches. Indeed, policing reforms like dashboard cameras, officer body cameras and videotaping confessions have been implemented in police departments to increase police accountability, reduce errors, and guard against accusations of police misconduct, and on the whole trend to garner positive feedback from police officers once they get accustomed to using them. If reforms to eyewitness identification procedures are to be widely adopted and accepted, reformers would do well do win over the hearts and minds of police officers by demonstrating that reforms also hold benefits for police. It is by working in conjunction police with rather than against them that eyewitness evidence collection reforms have the greatest hope for sustainable implementation and success.

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