“Your Eyes are Playing Tricks on You”: Eyewitness Identification Reform
Otis Boone insisted that he was innocent after being accused of two robberies in 2011. He was nineteen at the time, and two separate victims who had their cellphones snatched by a knife-wielding man picked Boone out of separate police lineups. Although there was no physical evidence, he was convicted largely because of the victims’ eyewitness identification. Boone, the Brooklyn, N.Y. native, was sentenced to twenty-five years in prison. He took his appeal to New York’s highest court, where a majority of judges ruled that the jury should have been told that witnesses often struggle to identify strangers of a different race. Boone is a Black man, and the victims were both white. The New York Court of Appeals granted Boone a retrial and mandated that judges explain what psychologists call the “cross-race effect” to jurors whenever a case involves a witness identifying a suspect of a different race. During Boone’s second trial in February 2019, his attorneys presented evidence that he was actually a mile away from one of the robberies five minutes before it occurred. On March 1, 2019, he was subsequently acquitted by a second jury after spending seven years behind bars.
How could two different individuals be so drastically wrong when identifying the person who perpetrated a crime? Eyewitness misidentification is a leading cause of wrongful convictions. Mistaken eyewitness identifications contributed to approximately sixty-nine percent of more than 375 wrongful convictions in the United States overturned by post-conviction DNA evidence. Inaccurate eyewitness identification can confound investigations from the earliest stages as critical time is lost as law enforcement resources are focused on the wrong individual, and the case is built against the wrong person.
So what causes these memory errors? To report accurately on a witnessed event, the witness must successfully encode information in her brain based on what she has seen, store it as a memory, and then retrieve it on demand. Each of the three stages are complex, and the trauma and shock of the event can exacerbate the process. Leading social science researchers identify two main categories of variables affecting eyewitness identification: estimator variables and system variables. Estimator variables are those that cannot be controlled by the criminal justice system. These include the lighting where the crime took place or the distance from which the witness saw the perpetrator. Estimator variables also include complex factors such as the perpetrator’s race, the presence of a weapon during the crime, and the degree of stress or trauma a witness experienced while seeing the perpetrator. On the other hand, system variables are those that the criminal justice system can and should control. These include the various ways law enforcement agencies retrieve and record witness memory (lineups, photo arrays, and other identification procedures). System variables, in particular, substantially impact the accuracy of identifications, and they can be controlled in some aspects. For example, detectives have a duty to ensure that photo arrays are not manipulated or made to look suggestive. Therefore, the system as a whole should do what it can to ensure that the process is fair.
The future of eyewitness identification reform is auspicious. The Innocence Project endorses a range of procedural reforms, that if implemented, will improve the accuracy of eyewitness identification. These reforms include:
1) The “double-blind” Procedure/Use of a Blind Administrator: A “double-blind” lineup is one in which neither the administrator nor the eyewitness knows who the suspect is. This prevents the lineup administrator from providing inadvertent intentional verbal or nonverbal cues to influence the eyewitness to pick the suspect.
2) Instructions: “Instructions” are a series of statements issued by the lineup administrator to the eyewitness that deter the eyewitness from feeling compelled to make a selection.
3) Composing the Lineup: “Composing the lineup refers to selecting suspect photos that do not bring unreasonable attention to him. Non-suspect photos (fillers) should be selected so that the suspect does not stand out from among the other fillers.
4) Confidence Statements: Immediately following the lineup procedure, the eyewitness should provide a statement, in his own words, that articulates the level of confidence he has in the identification made.
5) The Lineup Procedure should be Documented: The events that unfold during a lineup should be documented for future reference. Ideally, this would allow lawyers, judges, and juries to determine whether proper procedures were followed or whether the witness was improperly influenced.
These reforms have been recognized by police, states attorneys, and various courts, as well as various organizations, including the National Institute of Justice and the American Bar Association. Twenty-four states have currently implemented the core reforms promoted by the Innocence Project either through legislation, court action, or substantial voluntary compliance. The goal is not to create better eyewitnesses but to establish safeguards that will catch inaccurate eyewitness accounts and prevent innocent people from going to jail.
Boone, now twenty-eight, is engaged and expecting his first child. The officers in his case made major errors by failing to properly investigate whether Boone was even in the vicinity when the crimes took place. However, their investigative failures could have been remedied if some of the procedural reforms had been employed. For example, during the police lineup, officers only asked Boone to step forward and say the words uttered by the thief during the robbery. The actions of the officers brought unreasonable attention to Boone and created bias during the identification process. Also, obtaining confidence statements from both victims would have alerted the first jury that the witnesses were not very confident in their identification because they both saw the thief for a few seconds. Boone has the opportunity to move forward with his life and try to make up for the seven years that he spent behind bars. There are thousands of others that may not be afforded the same opportunity. Implementing these procedural reforms is only the first step in ensuring a more “just” criminal justice system.