Eyewitness Misidentification: DNA Evidence Sets Free another Inmate Imprisoned by the Fallibility of the Mind

After serving twenty six years in prison for a crime he did not commit, Rickey Johnson (pictured to the left) was told by a Louisiana judge on January 14th, 2008 that he was free to go. Mr. Johnson was arrested after a rape victim incorrectly identified him in a police photo lineup after which he was sentenced to life without parole. The prisoner's innocence was determined with forensic DNA testing; a technology not available at the time of the crime. The Innocence Project, which represented Johnson in the case, is a public policy reform group that works to absolve wrongly convicted inmates and fights for more reliable practices in the criminal justice system to avoid tragedies like that of their client. The case stands out as simply the most recent in a series of DNA exonerations, most of which stemming from misidentification. In fact, eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in 75% of the 216 convictions overturned through DNA testing to date. Johnson's wrongful conviction is an excellent example of the fallibility of memory recall by humans in certain situations. In the intense moments of a crime psychologists tell us that many things can interfere with awareness, attentiveness, and memory. Beginning with a surge of research in the 1970's, psychologists have been struggling to convince police, courts, and policy makers that they must exercise extreme caution with the procedures surrounding eyewitness identification. However, the leisurely adoption of statutes by only a handful of states demonstrates the peculiar reluctance to instate widespread reform or standardized practices of such an important legal process.

U.S. law concerning suggested eyewitness identification procedures is largely dictated by the Supreme Court's ruling in Manson v. Braithwaite (1977) and has not been revised by the Court the the subsequent 30+ years. Recent DNA exoneration cases have corroborated the warnings of years of psychological researcher by showing that mistaken eyewitness identification was the largest single factor contributing to the conviction of these innocent people. It is largely because eyewitness testimony can be persuasive evidence before a judge or jury that authorities are so resistant to make the process more stringent, yet strong scientific research has proven that eyewitness identification is often unreliable. According to Innocence Project, "the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound." Instead, eyewitness memory should be retrieved methodically and preserved carefully or it can be contaminated just like any other evidence. The most common area in which this evidence is contaminated is during sloppy or rushed suspect lineups or photo arrays implemented by the police.

In October of 1999, the U.S. Department of Justice released the first national guide for collecting and preserving eyewitness evidence as one of scientific psychology’s most dramatic and consequential contributions to national public policy. The guide was commissioned by U.S. Attorney General Janet Reno, and consisted of a panel of experts, including psychologist Gary Wells, the world’s foremost authority on the psychology of eyewitness identification along with other leading psychologists in the area. The authors state that the guide, "is supported by social science research. During the past 20 years, research psychologists have produced a substantial body of findings regarding eyewitness evidence." They implemented psychologists' findings on suggestibility, authority figures, memory recall, and confidence malleability to produce an outline of best practices in order to, "obtain the most reliable and accurate information from eyewitnesses" and to make sure this evidence "is given the weight it deserves in legal proceedings." Additional pressure for guidelines was applied by psychologists through expert testimony that focused on deficiencies in the standardization of procedures used to collect the eyewitness evidence. DNA exoneration cases were particularly important in leading Reno to notice the eyewitness literature buzzing throughout psychology and to order the National Institute of Justice to coordinate the development of the guide for law enforcement. Yet as of February 6th of this year, state legislators are still just getting around to actual implementation in the form of mandated policy on a state by state basis.

What does the research suggest and the guide outline? Following are five highly simplified guidelines for identification procedures. Firstly, the police officer administering a photo or live lineup should be "blind", or unaware of who the suspect is (important so that the officer does not unknowingly influence the victim through body language or verbal cues). Secondly, the non-suspects (fillers) included in a lineup should fit the description of the perpetrator, and the eyewitness should not view multiple lineups with the same suspect (to protect from the tendency for the mind to favor that which stands out against others or is familiar). Also important, is that the eyewitness should be told that the perpetrator may or may not be in the lineup and that they should not look to the administrator for guidance (to prevent the unfamiliar setting and authoritative administrator from pressuring the witness into a decision if they are not sure). Immediately following the lineup procedure, it is advised that the eyewitness provide a level of confidence statement (much research has focused on wrongfully inflated confidence of witnesses based on positive feedback from administrators). Finally, the entire identification procedure should be videotaped and documented to prevent misconduct and ensure proper procedure (abuse of power is more likely if unchecked, and standardized and methodical evidence keeping prevents appeals and future problems).

Where we find ourselves, though, is looking back upon Rickey Johnson's case for motives behind the sloppy three-photo-array identification procedure that landed him in prison. With the national prison system filled past capacity and the court system bogged down and backed up with cases, if somebody will say that they saw a someone do it, a conviction will be easy. But the easy way is rarely the best way. It is hard to advocate for the rights of someone accused of a heinous crime, but we must remember that the accused is presumed innocent until proven guilty, our society thrives on such principles of justice and freedom from persecution. Until recently however, the proof resulting from eyewitness identification was assumed reliable. But without the proper precautions and procedures, emotions and anxiety can interfere with an witness' memory of a crime and pressure can lead to hasty accusations. We must resist our urge to rush to conclusions as eyewitnesses because more often than we think, our mind will deceive us.