Eyewitness Identification Reform
On January 6, 2017, the U.S. Department of Justice’s Office of the Deputy Attorney General issued new procedures for handling eyewitness identification. These new eyewitness identification procedures take into consideration research on how to best avoid false identification. It is a colossal step forward for a department still dragging their feet about acknowledging and addressing the inadequacies of forensic science.
DOJ Implements New Eyewitness ID Procedure
The Department of Justice hasn’t updated their eyewitness ID procedures since 1999. During 2016, DOJ gathered a team of experts, including social scientists, law enforcement personnel, and prosecutors, to identify best practices. (The failure to include any defense
attorneys on the panel reflects an ongoing blind spot, in this author’s view, to the value of the defense perspective at Justice.) DOJ instructed all federal law enforcement departments to update their internal eyewitness identification procedures, consistent with DOJ’s new procedures. The policy admonishes prosecutors to consider the procedures when evaluating whether to charge a case. The memo notes, “It is important that prosecutors identify potential issues in the administration of a photo array early in an investigation and take any such issues into account when evaluating the overall strength of the evidence in their case.”
Eyewitness ID Updates
In recognition of cognitive bias, the new procedures encourage using someone not involved in the investigation to show the witness the photographic lineup. Blind administration assures all involved the administrator won’t signal the “right” answer. This can occur consciously, such as by saying, “We found your wallet in suspect 3’s apartment.” It also can occur subconsciously, such as by leaning in, or otherwise using body language to encourage one choice over another. The DOJ recognizes occasions where the use of a neutral is impractical. In such a case, DOJ recommends using a “blinded procedure.” This occurs, for example, by displaying the photos on a computer screen, which the witness can view, but the administrator cannot.
Law enforcement instructions to witnesses include a disclaimer. “The group of photographs may or may not contain a photograph of the person who committed the crime.” Additional statements which should make the process more objective, include the following:
- “You may not recognize anyone. That is okay. Just say so.”
- “Whether or not you select someone, we will continue to investigate this case.”
- “Do not assume that I know who committed this crime.”
Recording the Level of Confidence
When a witness makes an identification, the administrators of the ID are now instructed to ask witnesses to state how confident they are in their identification. When witnesses provide vague answers, the policy encourages law enforcement officials to press for more detail. Studies show the level of confidence at the time of identification is a far better indicator of reliability than their level of confidence at the time of trial.
Recording the Identification
Law enforcement is now required to record the identification. “Recording” is either accomplished via audio or video recording. The new guidelines also allow for law enforcement to document the encounter by hand. This practice is significantly less adequate, as the documenter’s own biases are now in play. Whether someone “appears reluctant” or “confident” is reflected only through the prism of the law enforcement officer. This person may well know the suspect identified is also the suspect arrested. Video or audio recording is far more fair to the defendant. This leaves judgements about the witness to the jury and the lawyers – where it should be.