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Big Wullie

Report on Memory and Eyewitness Identification

National Academy of Sciences Issues Landmark Report on Memory and Eyewitness Identification

[Print Version]

Innocence Project Urges Adoption of Its Recommendations for Improving Police Identification Procedures

Should Hasten Trend Started by New Jersey and Oregon Supreme Courts in Overhauling the Way Courts Handle Identification Evidence

Contact: Paul Cates,
Nick Moroni,

(Washington, D.C. – October 2, 2014) Today the National Academy of Sciences issued a landmark report evaluating the scientific research on memory and eyewitness identification. Researchers conducted an in-depth review of three decades of basic and applied scientific research on eyewitness identification and provided recommendations for improving police identification procedures and for how courts handle eyewitness evidence. The Innocence Project, which has long advocated for many of the reforms recommended in the report, urges states and courts across the nation to enact the recommendation in order to prevent wrongful convictions.

“This report should serve as a powerful incentive for states and courts around the nation to enact reforms that will prevent eyewitness misidentifications. We’ve known for quite some time that eyewitness testimony is simply not as accurate as juries often believe, but we now have a definitive report that has analyzed three decades of science and makes proven recommendations for how law enforcement and the courts can prevent innocent people from being wrongly arrested and convicted,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.

According to Innocence Project, eyewitness misidentifications contributed to 72% (229) of the 318 wrongful convictions that were later overturned by DNA evidence. The real perpetrators were eventually identified in 90 (39%) of these cases. While the innocent where languishing behind bars in these cases, the real perpetrators committed an additional 98 additional violent crimes (63 rapes, 17 murders, and 18 other violent crimes).

Recognizing that police eyewitness identification procedures can have a big effect on the accuracy of identifications, the report endorsed the following best practices, which have long been supported by the Innocence Project as a means to reduce the likelihood of wrongful convictions:
•Blind Administration — Research shows that the risk of misidentification is sharply reduced if the police officer administering a photo or live lineup is not aware of who the suspect is. This prevents the witness from picking up intentional or unintentional clues from the officer conducting the lineup.
•Confidence Statements — Immediately following a lineup, the eyewitness should be asked to describe in his or her own words how confident he or she is in the identification. As the report notes, the level of confidence a witness expresses at the time of trial is not a reliable predictor of accuracy. Having the witness describe their level of confidence at the time an identification is made will provide juries with a useful tool for judging the accuracy of the identification.
•Instructions — The person viewing the lineup should be told that the perpetrator may not be in the lineup and that the investigation will continue regardless of whether the witness identifies a suspect.
•Videotape the procedure — The report recommends that police electronically record the identification procedure to preserve a permanent record of the procedure.

Ten states have already uniformly adopted these best practices through law, policy or court action, and many jurisdictions around the country have voluntarily adopted policies embracing these important best practices. Just last year, the International Association of the Chiefs of Police (IACP), the world’s oldest and largest organization of police executives, came out in support of these reforms.

The report notes that the legal standard that most courts use regarding the admissibility of eyewitness testimony was established before most of the scientific research was conducted. However, landmark decisions by the New Jersey and Oregon Supreme Courts have already taken note of the robust research on memory and identification in overhauling the way courts in those states deal with identification evidence. Today’s report should help to accelerate this trend by making the following recommendations for courts:
•Conduct pre-trail judicial inquiry — Judges should inquire about the eyewitness evidence being offered. If there are indicators of unreliable identifications, judges could limit portion of the eyewitness’ testimony or instruct the jury on how to properly evaluate the reliability of the identification based on the scientific research.
•Make juries aware of prior identifications — Because in court identifications can unduly influence the jury, juries should hear detailed information about any earlier identification, including the confidence the witness expressed at the time of the identification.
•Permit expert testimony — The report recognizes that expert witnesses who are capable of explaining the nuances of memory and identification are helpful in assisting juries in how to evaluate eyewitness testimony and should be permitted. The report also encourages local jurisdictions to provide funding to defendants to engage qualified experts.
•Better instruct juries — Jury instructions can be used to educate jurors on how to properly evaluate the factors affecting eyewitness identifications and should be tailored to the relevant facts in a particular case.
Big Wullie

Eyewitness Misidentification

Eyewitness Misidentification
Big Wullie

•Permit expert testimony — The report recognizes that expert witnesses who are capable of explaining the nuances of memory and identification are helpful in assisting juries in how to evaluate eyewitness testimony and should be permitted. The report also encourages local jurisdictions to provide funding to defendants to engage qualified experts.

Despite the Devlin report recommending the same in 1976 Scotland still does not allow expert evidence on Identification (Gage V HMA 2011)
Iain McKie

A very interesting article and extremely relevant to Scotland.

Time to resurrect the issue with Justice Scotland Wullie?
Big Wullie

Iain McKie wrote:
A very interesting article and extremely relevant to Scotland.

Time to resurrect the issue with Justice Scotland Wullie?

Exactly Iain I concur with your view and will endeavour to raise this issue with Justice once again.

How Eyewitness IDs Lead to Wrongful Convictions and Calls for New Methods

On Friday, Brandon Olebar was awarded nearly half a million dollars after spending 10 years in prison for a crime he did not commit. The reason for the wrongful conviction: an identification by the victim. The chances that such an eyewitness identification is wrong: pretty good.

So says a National Research Council report released this morning that builds upon what it describes as “an increasingly clear picture of the inherent limits in human visual perception and memory.”

“People’s memories are continuously evolving,” reads a summary. “Although the individual may be unaware of it, memories are forgotten, reconstructed, updated and distorted.”

This is not a surprise to anyone who followed the now discredited “recovered memory” prosecutions of the ‘90s, built upon supposed memories of abuse retrieved from the subconscious, often at the suggestive prodding of therapists or law enforcement officials. (For a referesher, read Lawrence Wright’s wonderful book on Olympia’s Paul Ingream case.) Decades of research, including from former University of Washington psychology professor, Elizabeth Loftus, has shown why memories alone shouldn’t be the basis of criminal cases.

Yet law enforcement continues to build cases around memories. Today’s report seeks to change that with a series of recommendations for law enforcement and the judiciary. They include the use of “double-blind” lineups and photo identification, meaning that neither the witness nor the police officer seeking an ID knows who the suspect is. That way, the officer avoids giving subtle and sometimes unintentional cues.

Officers should also tell witnesses that the investigation will continue regardless of whether they identify a suspect of not, the report says. “A lot of people consider it a test,” Lara Zarowsky, policy director of the Innocence Project Northwest, tells Seattle Weekly. “They want to do well. They want to help investigators. They feel a pressure to choose.”

That’s why telling them that the investigation doesn’t hinge on their response is a good idea, she says, adding that officers could say something like: “Listen, I don’t know whether the guy is here or not, and it’s just as important to clear an innocent person as it is to find the guilty one.”

As it happens, Zarowsky has a lot of her own thoughts about this subject, because she’s spent the last four years working with a local group of lawyers, social scientists and law enforcement officials on a similar set of recommendations. She says police and prosecutors from Seattle and King County are involved and seem sincerely committed to changing practices according to the scientific research.

Still, she says, “not everywhere in the state is King County.” And even here, she observes, practices are not consistent some cases continue to go forward with little evidence other than eyewitness testimony. When they do, she says, judges sometimes deny defense requests to bring in witnesses at trial who can testify about memory’s unreliability—something else the working group would like to change.

That group’s recommendations will likely be ready in a few months, after which it will start trying to get law enforcement groups across the state to adopt them.

If the research isn’t convincing enough, the Innocence Project has this in its back pocket: 73 percent of national wrongful convictions proved by DNA involved mistaken eyewitness identifications.

In the Olebar case, the victim, who had been robbed and beaten by a group of people, including a former girlfriend, couldn’t give precise descriptions about anyone other than his ex. When police showed him a photo montage, he nevertheless recognized Olebar. What police and prosecutors failed to appreciate, though, was that the identification might not mean what it seemed, relates Fernanda Torres, the Innocence Project Northhwest lawyer who helped clear his name. Olebar is the ex-girlfriend’s brother. Of course, the victim knew him!

Torres and her colleagues ultimately tracked down three of the real perpetrators, who revealed in sworn statements that Olebar had not been involved. Forum Index -> Test Forum 1
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Sincere thanks to all those who have supported Shirley and challenged miscarriages of justice on this forum.