Show me real eyewitness ID reform

Show me real eyewitness ID reform

By Tricia Bushnell and Amol Sinha

Here is a sobering fact: Every wrongful conviction in Missouri that was reversed by DNA evidence involved eyewitness misidentification. In all nine of these cases, eyewitnesses mistakenly identified — and courts convicted — innocent people. Some of these innocent men spent years and even decades in jail while the real perpetrators remained free.

Eyewitness misidentification is the leading contributor to wrongful convictions that have been overturned by DNA evidence, factoring in over 71 percent of the 336 such cases nationally. At 100 percent, Missouri exceeds the national average. Additionally, cross-racial misidentification contributed to nearly half of the nation’s misidentification cases resulting in DNA exonerations; it also played a role in five of Missouri’s nine such cases.

On several occasions, Missouri has failed to reform the way police conduct eyewitness identification and how that evidence is presented in court. Last month, the Missouri Supreme Court failed to adopt a jury instruction that would have given jurors guidance on factors that have been scientifically proven to contribute to misidentification, such as cross-racial identification. Unfortunately, the high court adopted a much-less effective set of instructions that do not adequately warn jurors about factors that could contribute to a wrongful conviction.

The instructions also largely ignore the vast body of scientific research that has been developed over the past 30 years and which establishes how law enforcement and the courts can enhance the reliability and consideration of eyewitness evidence.

However, since the court failed to act, it is vital that the Legislature take up the issue during the current legislative session and pass Senate Bill 842, which would require the statewide adoption of the following eyewitness identification best practices. These practices include:

• Blind administration: Lineup administrators should not be aware of the identity of the suspect, preventing the administrator from providing inadvertent or intentional verbal or nonverbal cues to the eyewitness.

• Thorough instructions: The eyewitness should be given a set of instructions that deter him or her from feeling compelled to make an identification. The instructions should include the directive that the suspect may or may not be in the lineup.

• Fair lineup composition: Suspect photographs should not bring unreasonable attention to the suspect. Fillers (non-suspect photographs or live lineup members) should be selected based on their resemblance to the description provided by the eyewitness.

• Confidence statements: Immediately following the lineup or photo array procedure where an identification has been made, the eyewitness should provide a statement, in his or her own words, that articulates his or her level of confidence in the identification. This statement should be recorded verbatim.

These best practices are supported by lawyers, police and prosecutors across the nation, among them the American Bar Association and the International Association of Chiefs of Police. Additionally, in 2014, the National Academy of Sciences, citing decades of research, released the most comprehensive report to date on eyewitness identification and recommended these best practices, leading to strong consensus that the science is settled. Twenty-five states and many localities across the country either advise or require police agencies to implement these best practices; Missouri should do the same.

Missouri has an opportunity to embrace science and national trends, and help prevent future wrongful convictions. It should use this legislative session to pass a statewide policy governing eyewitness identification police practices. Then, perhaps, the Show-Me state can finally show its residents it cares about preventing injustice.

Tricia Bushnell is legal director of the Midwest Innocence Project. Amol Sinha is a state policy advocate at the Innocence Project.