Eyewitness testimony

DEFINITION: Testimony of witnesses, including crime victims, who viewed events of interest to investigators.

SIGNIFICANCE: Because eyewitness testimony has consistently been found to carry great weight with juries, the accuracy of such testimony is crucial. The presence of forensic evidence at a crime scene may confirm eyewitness testimony or cast serious doubt on its accuracy.

During crime scene interviews, investigators seek to gather reliable from eyewitnesses, including the crime victims. The intent is to obtain high-quality evidence that will later enable juries or judges to be confident of the ability of the eyewitnesses to provide accurate information about what occurred.

Identification Procedures

Police investigators use standard procedures when interviewing victims and other eyewitnesses at crime scenes. They seek to obtain thorough and precise information, but at the same time they must be cautious to avoid suggestive questioning, which can lead witnesses to recall and describe events and persons incorrectly. Sometimes eyewitnesses are asked to describe the suspects they have seen to sketch artists.

Following the initial interviews, police investigators use various identification procedures with eyewitnesses—such as photo arrays, lineups, and show-ups—to confirm the identities of suspects. For a photo array, the investigators assemble a number of photographs (usually six, sometimes more) of possible suspects based on the description given earlier by the witness. The witness is then presented with the full array of photos and is asked whether the suspect is pictured among them. Investigators should observe several simple rules when using photo arrays. Generally, this procedure should be conducted at the police agency or at the residence of the witness, and the witness should not be in the presence of any other witnesses when observing the photos. The different photos should, as much as possible, reflect the description of the suspect earlier provided by the witness, and black-and-white photos should not be mixed with color photos. Most important, investigators should be certain that the witness does not feel compelled to select any one person out of the array as the offender.

In a lineup, the witness views live individuals, usually in a group of six, rather than photographs. This procedure typically takes place at the police agency in special rooms separated by a one-way mirror so that the witness can see and hear the persons in the , but they cannot see or hear the witness. As with a photo array, the individuals in the lineup should reflect the description of the given by the witness during the initial interview. The participants in the lineup may be asked to speak for identification or to walk or gesture in a particular manner. The witness is asked to identify the offender if that person is present.

The show-up identification procedure (sometimes called an in-field identification) is not used as often as the photo array or lineup. In this procedure, a single suspect is brought before the witness for possible identification as the offender. Investigators use a show-up only when the crime has occurred very recently and a suspect is quickly apprehended based on immediate information provided by the witness. An example would be a convenience store after which a suspect is taken into custody within fifteen minutes. The general thinking is that the offense is very fresh in the mind of the witness at that time, and therefore it would be prudent to get immediate confirmation from the witness that the correct person is in custody. Some legal observers have criticized this identification procedure as too suggestive and thus unfair to the alleged suspect.

US Supreme Court Decisions

The United States Supreme Court has addressed the pretrial identification procedures that police use with witnesses in a number of cases. The Court has emphasized the need for reliable procedures that are not suggestive in nature—in other words, photo arrays, lineups, and show-ups that are fair to alleged suspects.

In United States v. Wade (1967), the Court held that a suspect has a Sixth Amendment right to legal representation at a post-indictment lineup (a lineup held after formal charges have been brought against the accused) because, at this “critical stage” for the accused, the presence of an attorney may help to prevent police from conducting an unfair or suggestive lineup. An example of a suggestive lineup would be one in which all the lineup participants are young men except for one elderly participant, the accused, who matches the witness’s description of the suspect. The attorney for the accused can bring the suggestive nature of the lineup to the attention of the police and can later argue to the trial court that the identification should be excluded from evidence because the lineup proceeding was unfair.

A suspect who has been arrested but has not yet been charged is not constitutionally entitled to an attorney at a lineup or show-up. The Supreme Court has never held that a suspect has a right to an attorney, under any circumstances, relative to a photo array.

In the later case of Mansion v. Brathwaite (1977), the US Supreme Court decided that even a suggestive identification (in this case, the result of an unfair photo array) could, if certain factors are present, still be admitted into evidence at trial. In its decision, the Court relied on the five-factor test it had set forth in the case of Neil v. Biggers (1972). These five factors are the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Therefore, even though a pretrial identification may be suggestive, the identification may nonetheless have indicators of reliability that eliminate any due process (fairness) argument. An example would be a case in which a witness identifies as the suspect someone with whom the witness has worked continuously for the past three years. The witness would easily recognize the suspect even if the photo array, lineup, or show-up in which he or she identified the person for the police was very suggestive in nature.

Reliability Issues

A substantial amount of research, particularly by experimental psychologists, has raised questions concerning the ways in which police conduct identification procedures with eyewitnesses and how accurate eyewitnesses are in identifying suspects from photo arrays and lineups and during show-up procedures. It has been argued that mistaken eyewitness identifications are the most common reason for wrongful convictions.

Research findings suggest that investigators should be careful when giving instructions to witnesses before showing them photo arrays or lineups, and they should be cautious as well about making any comments to witnesses during or after these procedures. For example, at a lineup, an investigator should never imply that the actual offender is among the lineup participants, as this may cause the witness to select whichever person in the lineup is most like the person the witness remembers seeing at the crime scene. Likewise, investigators should not give positive feedback to a witness who has chosen someone from a photo array or lineup, such as “Good, you identified the right man,” because it is possible that the witness’s memories of the crime may be altered by this post-event information—that is, the witness may then be more likely to associate the person in the photograph with the crime, even if that is not the person who actually committed the crime. This can then affect the witness’s testimony in court. In many wrongful cases, witnesses have become “more certain” over time that the persons they selected during the identification process were the offenders, even though evidence that came out later proved that such was not the case.

Since the 1970s, defense attorneys have increasingly called on psychologists to testify in court as expert witnesses regarding the reliability, or unreliability, of eyewitness testimony. These experts generally explain to juries the fragile three-stage process through which eyewitnesses see, store, and later retrieve information. They note that many elements, including poor lighting, the stress of the crime event, and the witnesses’ own attitudes, may have negative influences on eyewitnesses’ ability to recall events clearly. For example, victims may be so distracted by the weapons offenders wield during crimes (so-called weapon focus) that they may later have difficulty recognizing or describing the offenders.

Additionally, expert witnesses sometimes discuss the well-documented phenomenon of cross-racial bias in memory—that is, research has shown that individuals have more accurate memories regarding the faces of people of their same race than they do for people of other races. Another issue related to eyewitness reliability is the phenomenon of “unconscious transference,” in which eyewitnesses confuse persons they have seen in other situations for the perpetrators of the crimes they witnessed, and so select the wrong individuals from photo arrays or lineups.

In laboratory experiments, psychologists have found that high “confidence levels” in witnesses do not automatically equal accuracy. Many overturned cases of wrongful conviction have also shown this to be true.

Identification errors have been found to be more common in children than in adults, and child suggestibility is higher relative to interviewer comments. In addition, elderly persons are more likely to make identification errors than are young or middle-aged adults. People who were personally victimized in a crime are also more likely to have false memories of the event. In giving expert testimony on this topic, psychologists are fond of saying that the “eye is not a camera” and the “mind is not a videotape,” and thus pretrial identifications should be examined closely for accuracy.

Efforts to Promote Accurate Eyewitness Identifications

An eyewitness identification may be the most crucial part of a criminal case. Traditionally, courts have relied on defense attorney cross-examination of eyewitnesses to reveal any potential inaccuracies in these witnesses’ identifications. It has been suggested, however, that additional safeguards should be in place to ensure the accuracy of eyewitness accounts. A number of police departments have instituted the use of so-called techniques, which avoid the use of suggestive questions in interviews with victims and other witnesses. Just as physical evidence can be contaminated, the concern is that through improper, suggestive interviewing, contamination of eyewitnesses can occur. It has also become increasingly common for investigators to record—both in writing and on audiovisual media—all pretrial identification procedures used so that they can be reviewed later at trial.

Another change in police procedure that has been recommended to reduce eyewitness identification error is the sequential, randomized display of photos or lineup participants rather than the commonly used simultaneous display. That is, instead of viewing all photos or lineup participants together as a group, witnesses look at each individual photo or lineup participant separately from the others. The thinking is that this procedure may be less likely to result in the identification of an innocent party and hence a potential miscarriage of justice.

In 2014, the National Academy of Science (NAS) issued the report Identifying the Culprit: Assessing Eyewitness Identification. In it, the NAS outlined existing procedures, compiled both basic and applied study findings, and offered recommendations for best practices. Among its recommendations were blind lineups and photo arrays, in which the officer conducting the procedure is not made aware who the suspect is or does not arrange the order of the presentation, and recording of initial confidence ratings, which would indicate how sure the eyewitness is of his or her choice at the time of first identification. Other measures included clear, standardized instructions for witnesses and comprehensive, ongoing training for all law-enforcement officers on the limits of witness identification and best practices to avoid witness contamination. The NAS report also outlined several methods of improving the utility of witness testimony at trial.

Police departments in dozens of states began implementing safeguards to reduce the chance of errors in eyewitness testimony in the years following the release of the NAS report. Further, in 2017 the Department of Justice published new guidelines determining how federal criminal cases should present lineups using photographs. The report also informed a new policy regarding lineup procedures by the International Association of Chiefs of Police. Research has also continued among scientists working to better understand visual perception and memory and how such knowledge can improve procedures such as lineups.

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