Factors that may affect the accuracy of eyewitness identification are not typically within the common knowledge of a jury. These factors include:
- System variables – those factors which can and should be controlled by the criminal justice system, such as:
- Type of line-up used
- Selection of fillers
- Blind administration
- Communications with witness before and after identifications
2. Estimator variables – those factors which cannot be controlled by the criminal justice system, such as:
- Own-race bias
- Exposure duration
- Masking of cues to hair and hairlines
- Weapon focus
- Stress experienced by eyewitness
- Passage of time between crime and identification
Seeking expert knowledge regarding your case may be beneficial in three ways:
- Before trial: to identify the critical issues that need to be addressed during litigation proceedings, as well as to determine all of the potentially suggestive factors of the eyewitness identification
- To provide expert testimony at trial regarding any suggestive factors specific to the eyewitness identification of your client
- To provide scientifically based expert testimony to explain the general factors affecting eyewitness identification, in order for the jury to have an understanding of the issues surrounding eyewitness identification
- Information about experts in this field is available below.
- Karen Newirth is a Senior Staff Attorney in the Strategic Litigation Unit of the Innocence Project. She
focuses on the Innocence Project’s law reform efforts around eyewitness identifications and confessions and is available to consult on cases.
Reports and Publications
Attorneys considering challenging eyewitness identification should consult Chapter 3 of Alyson A. Grine & Emily Coward, Raising Issues of Race in North Carolina Criminal Cases. The chapter provides detailed information on motions to suppress, voir dire of witnesses, jury voir dire, working with experts, cross-examination, and other topics.
Innocence Project report showing that misidentification causes more wrongful convictions than any other factor. Misidentifications contributed to wrongful convictions of more than 75% of the over 230 people exonerated through post-conviction DNA testing.
John T. Wixted and Gary L. Wells published this article in Mar. 2017 finding that eyewitness confidence and accuracy are strongly related in pristine lineup conditions. Where lineup conditions are non-pristine, accuracy of even a high confidence suspect ID is seriously compromised. Pristine line-up procedures include using only one suspect per lineup; the suspect should not stand out in the lineup; a caution should be given that the offender might not be in the lineup; testing should be double-blind; and a confidence statement should be taken at the time of the identification. Full text of the article can be downloaded.
The National Academy of Sciences issued a landmark report evaluating the scientific research on memory and eyewitness identification in October 2014. The report provides recommendations for improving police identification procedures and for how courts should handle eyewitness evidence. The report is available for purchase or free download.
2017 memo from the US DOJ which endorses the 2014 NAS Report, Identifying the Culprit: Assessing Eyewitness ldentification, stating:
“The heads of the Department’s law enforcement components should review these procedures and, to the extent necessary, update their own internal policies to ensure that they are consistent with the procedures described in this document. In addition, all Department prosecutors should review these procedures and take them into consideration when deciding whether to charge a case involving an eyewitness identification.”
1999 US DOJ guide developed by the Technical Working Group for Eyewitness Evidence. Law enforcement should be aware of these best practices.
- Suggestive Eyewitness Identification Procedures and the Supreme Court’s Reliability Test in Light of Eyewitness Science: 30 Years Later
by Gary Wells and Deah Quinlivan, Law Hum Behav (2009) 33:1-24.
by Gary Wills, Mark Small Steven Penrod, Roy Malpass, Solomon Fulero, C.A.E. Brimacombe, Law and Human Behavior, Vol. 22, No. 6, 1998.
Stetson University College of Law
National Clearinghouse for Science, Technology and the Law
Complimentary Forensic Science Webinar Series
Funded by the U.S. Department of Justice, Capital Case Litigation Initiative
Webinar Presenter: Professor Jules Epstein, Director of Advocacy Programs, Temple University
The 16th webinar in the Crime Scene to Courtroom webinar series will cover eyewitness identification evidence as it relates to science and the law.
Professor Epstein’s work has concentrated, in recent years, on capital case, eyewitness, and forensics issues. He has taught death penalty law nationally to judges and attorneys, and continues to handle capital cases at the appellate and post-conviction stages. In the area of eyewitness evidence, he has lectured, authored both articles and book chapters, and served as an expert witness.
Professor Epstein served as a member of the National Commission on Forensic Science from 2013 until the Commission’s demise in 2017. He was co-editor of SCIENTIFIC EVIDENCE REVIEW: ADMISSIBILITY AND THE USE OF EXPERT EVIDENCE IN THE COURTROOM, MONOGRAPH NO. 9, (ABA Books, 2013) and THE FUTURE OF EVIDENCE (ABA Books, 2011).
The webinar is part of the complimentary webinar series, Crime Scene to Courtroom Forensics Training. This project was supported by Grant No. 2015-CP-BX-K006 awarded by the Bureau of Justice Assistance.
You will receive a confirmation email with webinar details from Stetson 24 hours prior to the event.
Questions? Email firstname.lastname@example.org
A resource for eyewitness identification reform, including a link to the North Carolina Actual Innocence Commission Recommendations for Eyewitness Identification.
Jeff Welty’s Dec. 5, 2016 blog post contains relevant case cites and discussion of the topic of eyewitness identification expert testimony.
UNC School of Government blog post by Jeff Welty on State v. Rawls which held that show-ups are not covered by the Eyewitness Identification Reform Act.
In this Second Circuit U.S. Court of Appeals case, Judge Jed Rakoff finds ineffective assistance of counsel for failure to challenge the unreliable eyewitness identification evidence in the case. Counsel failed to consult with an expert, abandoned a pre-trial motion to preclude the eyewitness identification evidence, and failed to move to exclude a prejudicial photo of the defendant with a BB gun.
The test in North Carolina for identification procedures prior to the enactment of the EIRA was stated in State v. Rogers, 355 N.C. 420, 432 (2002) as follows: Whether an identification procedure is unduly suggestive depends on the totality of the circumstances. State v. Pigott, 320 N.C. 96, 99 (1987). A due process analysis requires a two-part inquiry. First, the Court must determine whether the identification procedures were impermissibly suggestive. State v. Fowler, 353 N.C. 599, 617 (2001). If so, “the Court must then determine whether the [suggestive] procedures created a substantial likelihood of irreparable misidentification.” State v. Fowler, 353 N.C. 599, 617 (2001). In determining whether identification procedures are impermissibly suggestive, courts have considered such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty shown by the witness, and the time between the offense and the identification. Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
Ronald Cotton was wrongfully convicted of two rapes and burglaries in 1985 and 1987. Although innocent, Ronald Cotton served over 10 years in prison, primarily due to erroneous eyewitness identification. DNA testing in 1995 revealed that evidence from one victim did not match Cotton, but instead matched with another man who had confessed to the crime. Mr. Cotton was pardoned by the governor of North Carolina in 1995.
On Nov. 29, 2012, the Oregon Supreme Court issued an important decision, which places the burden on the state to establish the reliability of the eyewitness identification and recognizes and requires courts to act in a manner consistent with the latest scientific research on eyewitness identification and memory. This opinion may be useful in NC cases involving show ups or where counsel is arguing for suppression on state constitutional grounds.
NC Court of Appeals found the trial court properly denied the defendant’s motion to suppress asserting that an eyewitness’s pretrial identification was unduly suggestive and found no violation of the EIRA where the eyewitness identified the defendant by looking through the pages of The Slammer newspaper.
In State v. Rawls, 700 S.E.2d 112 (2010), the Court of Appeals held that “show-ups” are distinct from line-ups, and, therefore, are not subject to the guidelines set out in EIRA. Rather, the court applied the North Carolina common law test for determining if the show-up was proper which is a two-step inquiry described above: (1) The court must determine whether the procedure was impermissibly suggestive, and (2) If the procedure is found to be impermissibly suggestive, then the court must determine whether the procedure “created a substantial likelihood of irreparable misidentification.”
Expert testimony on eyewitness identification has been excluded in several cases, so counsel should be prepared for a challenge to its admissibility. Trial courts will weigh whether the proposed testimony is case specific and has probative value, and will consider such factors as whether the expert interviewed the eyewitnesses, visited the crime scene and observed the eyewitnesses’ testimony at trial. See also State v. Knox, 78 N.C. App. 493(1985), and State v. Cotton, 99 N.C. App. 615 (1990)
Motions and Briefs
For briefs on eyewitness identification issues, including showups, photo arrays, independent basis for in-court identification, expert witness on identification, and jury instruction on identification, visit the Identification of Accused section of the Indigent Defense Services Brief Bank.
For crimes committed on or after March 1, 2008, the Eyewitness Identification Reform Act (EIRA) creates procedural guidelines for eyewitness identifications during photo lineups and live lineups. This legislation is codified at N.C. Gen. Stat. 15A-284.50 through 15A-284.53 (2007).
Eyewitness ID in the News
- When memory and justice fail us, by Holly Bowen, The Hill, 6/20/2020
- Darrill Henry’s Double Murder Conviction Overturned in New Orleans, Innocence Project, 3/20/2020
- How witness identifications send innocent people to prison, by Jay Willis, The Appeal, 2/11/2020
- Senator Wiener Introduces Legislation to Prevent Wrongful Convictions Resulting from Faulty Expert Witness Testimony, Davis Vanguard, 2/8/2020
- A decades-old rape test sent him to prison. Then his high school girlfriend saw an old photograph., by Antonia Noori Farzan, Washington Post, 7/24/2019
- Wrongfully imprisoned for 43 years. Here’s the story of how he was freed., by Keith Barber, Raleigh News & Observer, 7/10/2019
- DA won’t retry wrongfully convicted Wilson man who spent 40 years in prison, by WRAL, WRAL, 6/26/2019
- Contaminated Memories, by Debra Tolchinsky, New York Times, 6/25/2019