Go to navigation Go to content
Phone: (973) 471-0004

The Frailties of Eyewitness Identification and New Jersey's Response

In this country, eyewitness misidentification results in more wrongful convictions than any other cause. Approximately forty years ago, one of New Jersey’s greatest jurists, Justice William J. Brennan, as a justice of the United State Supreme Court authored an opinion that noted that "the vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification." In a study published over ten years ago, it was determined that 90% of those cases where DNA exonerated a convicted felon mistaken eyewitness testimony was involved. Incredibly, an accused who is the subject of a lineup or photographic show up is not entitled to a lawyer at that point in the criminal process.

I

It is readily acknowledged that a witness’ ability to recognize an unfamiliar human face is a complex process that involves at least three stages, each of which involves perception, processing and memory.

The first is the acquisition stage. This is the point at which the witness first receives the visual image of the subject. The integrity of this event can be influenced by a whole host of factors, including lighting conditions, the length of the observations and the distance between the witness and the subject. A witness’ perception can also be affected by intoxication, trauma, stress or confusion in the environment where the observation is made. The term "Weapon Focus" is used to identify a phenomenon where the witness fixes attention on the weapon and not the person holding it. Another factor that can affect the accuracy of an eyewitness’s initial perception is race or ethnicity. Most people can more accurately identify members of their own race than members of a different race. Resultantly, cross-racial identifications are inferior to same-race identifications. Finally, a person’s perception of a subject can be distorted by his/her witness’s expectations or attitude at the time of the event. In short, sometimes we see what we expect to see.

The second stage of the identification process is retention. The longer the information is retained, the more likely identification errors will occur because post-event information can modify the witness’s original observations. Memory degradation occurs with each passing day and, as a result, the witness may be susceptible to "unconscious transference," which is a concept better understood by way of a hypothetical situation. Let us say that today you witness a shooting. Two or three days later, you see a face in a supermarket that provides a fleeting, personal fancy for a reason unrelated to the shooting. Three months later, you are asked to identify a suspect from the shooting in a lineup. One of the participants has a face similar to the person in the supermarket, which was an encounter you have forgotten about. Under these circumstances, you may transfer the face in the supermarket to the face at the shooting scene. In essence, you can identify the face, but incorrectly remember the situation where the face was first observed.

The final phase is the retrieval stage. This is where the witness attempts to recall the identification information. In criminal cases, this usually occurs in a lineup or photographic show up. At this stage of the investigative process, law enforcement agents can intentionally or unintentionally send suggestions or cues to the witness which can significantly influence the witness’s choice. Suggestions can also be received from other witnesses, family, friends and even information in the media.

II

Given the frailties of the identification process and its persuasive influences at trial, trial lawyers, legal scholars, and judges have proposed a number of safety measures to prevent misidentification in a criminal case.

• Pre-Identification Instructions To avoid improper influence, eyewitnesses should be told that they are not to look to the administering police officer for advice; that the perpetrator may not be in the lineup; and, that the investigation will continue irrespective of the eyewitness’s choice.

• Blind Administration

• Lineup Composition The suspect should not be distinctive (i.e. a white suspect in a non-white lineup composition). The non-suspect participants who are sometimes called "foils" or "fillers" should not resemble the suspect, but rather the eyewitness’s prior description of the perpetrator. Additionally, an eyewitnesses should not be presented with multiple lineups or photographic show ups where the same suspect is in each presentation.

• Sequential Lineup This is a lineup or photographic show up where the suspect and the fillers are displayed one person at a time.

• The Size of Lineup The size of a lineup typically involves 4 or 5 participants. Since some eyewitnesses may guess at the identity of a suspect, larger lineups can reduce the chance of a false-positive identification. Notably, Great Britain uses 9 participants in its lineup procedure.

• Post- Identification Statements The eyewitness should provide a statement in his/her own words after the identification process to define the level of confidence he/she has with the identification.

• Recording: The identification process should be videotaped, if possible. Video taping establishes the integrity of the identification process and obviates arguments that there was improper influence by law enforcement agents.

In order to obviate verbal and non-verbal suggestions or cues a police officer who is not aware of the identity of the suspect should administer the lineup or photographic show up.

In 2001, the New Jersey Attorney General’s Office implemented guidelines as to how to property prepare and conduct live lineups and photographic show ups . The most noteworthy innovations in these guidelines were the Blind-Administration concept and the Sequential Lineup. Other recommendations, include: (A) advising the witness that the suspect may not be part of the presentation and the witness should not be compelled to make an identification; (B) fillers should fit the witness’s original description of the perpetrator; (C) reusing fillers and suspects in multiple presentations will be avoided; and (D) the use of still photographs or videos to document lineups or photographic show ups.

While the criminal justice system is still a long way off from curing the deficiencies associated with this critical category of evidence, it is getting closer. Hopefully, the trial lawyers in this country will continue with their efforts to insure the accuracy of eyewitness identification.

. The Cure . The Problem