Eyewitness (mis)ID: 5 things to know about challenging tainted identifications

| Dec 11, 2017 | Post-conviction Relief |

For generations, eyewitness identification evidence was given too much value in the legal system, leading to a tragic number of wrongful convictions.

Today, we should know better. Even when a witness seeks to tell the truth, eyewitness accounts are often flawed by the fallibility of memories. And to make matters worse, many misidentifications are based on lies told by witnesses. Others are the result of deliberate misconduct by police in using misleading lineups or other problematic procedures.

Here are five things to know and how these tainted identifications occur and what can be done about them.

Memory is more complex than most people realize.

One reason why false identifications are so common is a misunderstanding of how memory works.

Since the 1970s, a growing body of research has increasingly shown that memory is not the straightforward process that it might appear to be at first glance. As the psychologist Elizabeth Loftus put it, memory is more like “putting puzzle pieces together than retrieving a video recording.”

As a result, even witnesses with the best of intentions can be very wrong in testifying to the identity of an event that occurred months or years in the past.

Misidentification by eyewitnesses is surprisingly common.

The National Registry of Exonerations at the University of Michigan keeps track of wrongful convictions that result in exonerations.

According to the Registry, witnesses intentionally identified exonerees as guilty in more than 1 in 4 exoneration cases, even though other evidence ultimately showed that someone else committed the offense.

The Registry research also found that in an additional 17 percent of exonerations, people claiming to be eyewitnesses made accusations against exonerees even when there was no crime.

Lies and improper police procedures can easily taint the identification process.

Identification procedures used by police agencies are often overly suggestive. The procedures are designed to manipulate witnesses into identifying someone the police already suspect.

Sometimes this is the result of outright misconduct, where police manipulate a witness into identifying a suspect the police claim is guilty. Police may also encourage witnesses to lie by suggesting it is in the self-interest of the witness to do so. In other words, police may solicit someone to snitch in exchange for a break on criminal charges.

Best practices for identification lineups need to be improved.

The National Registry of Exonerations has encouraged law enforcement agencies to review and revise their best practices for identification procedures, for both in-person and photo lineups.

For example, this would include such things as videotaping all identification procedures.

Wrongful convictions based on misidentification can be challenged.

Thousands of people have been exonerated in recent years by exposing how misidentification led to wrongful conviction. Many of these cases have involved DNA evidence.

Talk to an attorney skilled in these cases if you believe you are someone in your family has been wrongfully convicted.