Spotlight on police reform raises questions about lineups and eyewitness testimony
A common Psych101 exercise involves a rendition of pennies on a slide. Only one is the real penny; the others have various mistakes like the wrong wording or tweaks to Abe Lincoln profile that make it different from the real thing. We see and use pennies all the time — so it should be easy to choose the right penny from the lineup, right?
But Nancy Steblay, a professor of psychology at Augsburg University who specializes in eyewitness identification and eyewitness evidence procedures, says people are generally stumped by the coin lineup — even though pennies are a common object most Americans have encountered their entire lives.
“We’re ‘cognitive misers.’ We should take in more information, but we don’t bother,” Steblay explains.
“And it’s not an issue of discrimination or carelessness or whatever. It’s just our minds only bother with a certain amount of information.”
“And unfortunately we tend to do that with human beings, too,” she said in an interview with Yahoo News.
This lack of attention to detail, especially when examining facial features, affects eyewitness identifications, which are crucial to many criminal prosecutions. Mistaken eyewitness identifications have contributed to about 71 percent of wrongful convictions subsequently reversed by DNA evidence in the U.S., according to the Innocence Project, making it the leading factor in wrongful convictions.
Renewed efforts have been made to correct one key aspect of mistaken eyewitness identifications: lineup procedures. The ways that law enforcement agencies conduct photo arrays (which are now the more commonly used method) and live lineups can have a huge impact on eyewitness identification, and on May 16, Minnesota Gov. Tim Walz signed bipartisan legislation requiring law enforcement to adopt statewide best practices for lineup procedures.
The death of George Floyd in police custody on May 25 has put a spotlight on Minnesota, where the police force in its largest city, Minneapolis, has long faced accusations of racism.
The unrest after Floyd’s death “gives us more of an overall sense of urgency for our work,” Sara Jones, executive director of the Innocence Project of Minnesota, said in an interview with Yahoo News. Floyd’s arrest was not an instance of mistaken identification, but his death while police held him handcuffed on the ground led to a national outcry to reform police procedures, especially toward suspects who are members of minority groups. Black defendants are especially likely to be wrongly identified by white witnesses, forensic psychologists say.
The Innocence Project of Minnesota, a founding member of the Innocence Network, works to exonerate innocent people who have been incarcerated in Minnesota, North Dakota, and South Dakota, and to bring about reforms to the justice system to prevent wrongful convictions. Reforming eyewitness identification policies has been top priority for the Innocence Project in Minnesota and for the organization nationwide.
African-Americans make up 13 percent of the population and 47 percent of known post-conviction exonerations, according to the National Registry of Exonerations.
“The majority of the people that we’ve gotten out of prison have been people of color. So I think it’s kind of evident at this point that there is racism in every aspect of our criminal justice system. I think it’s really undeniable at this point,” Jones said.
Four reforms endorsed by the Innocence Project — known as the “core four” among eyewitness reform advocates — were incorporated into the new law recently adopted in Minnesota.
The first involves using double blind administration, meaning that neither the witness nor the official conducting the lineup is aware of who the suspect is in the lineup, to prevent the lineup administrator from either intentionally or unintentionally influencing the identification.
Steering the witness toward the actual suspect occurs, but “I think what was much more common was sort of an unintentional bias,” Julie Jonas, legal director of the Innocence Project of Minnesota, said in an interview with Yahoo News. “Say the witness picks No. 3, and the officer says ‘Good job, that’s who we thought it was.’ There have been studies done that show just from that very normal feedback, the witness’s certainty level will go way up, even when it shouldn’t. And the officer can even influence just by some types of body language.”
“I think in some cases it’s unintentional,” Steblay agrees. “I’ve heard from police who say, ‘I just thought that the witness was just being timid, or really knew but was just being cautious and I wanted to help that witness know that it was time to make an ID.’”
The other three reforms require instructing the eyewitness that the perpetrator may or may not be present in the lineup, selecting non-suspect “fillers” for the lineup who match the eyewitness’s description of the perpetrator, and documenting the eyewitness’s level of confidence in their decision immediately after an identification is made.
Yet nearly half of U.S. states do not have statewide procedures requiring the core four for eyewitness identification. The Innocence Project told Yahoo News that 26 states have implemented the core reforms, either through legislation, court rulings or law enforcement best practices. In the absence of statewide procedures, individual jurisdictions can implement their own standards, or none at all, which can result in a myriad of different eyewitness evidence-gathering methods within a single state.
Apart from mishandled lineup procedures, there are numerous other factors that can make eyewitness accounts unreliable. And juries often aren’t informed of how questionable some eyewitness identifications can be — and just how fragile human memories are.
“They use phrases that make an eyewitness scientist shudder, like ‘His face is burned into my memory,’ and ‘I will never forget that face,’ and things like that,” Steblay says. “And eyewitness scientists are just shaking their heads going, ‘That’s not how memory works.’ But to juries, that’s really powerful.”
Just as social influences can affect our behavior, outside forces can have a powerful effect on memory as well. In stressful situations, our memories are often unable to focus and pay attention to smaller details like facial features. Steblay says this is especially true when witnessing or being the victim of a crime. And when a weapon is involved, the reliability of the memory can decline even more.
“If somebody is threatened with a weapon, there’s often a laser focus on the weapon itself and they think they’re paying attention to what the person looks like, but they’re not. They’re paying attention to that weapon, because that weapon is what’s going to threaten them with harm,” Jones explains. “So they may think that they’re trying to pay careful attention so they can remember what that person looked like, but really all they can remember is the gun or the knife.”
Jonas says insights like these from psychologists and eyewitness scientists constitute important knowledge to get in the hands of jurors when they’re weighing a verdict. Earlier this year, she co-authored a paper outlining suggested additions to traditional jury instructions, which often leave out information that can be crucial to evaluating evidence.
“We tell them that stress is a factor [in eyewitness identification],” Jonas explains of conventional jury instructions, “but we don’t tell them whether it’s a factor that helps make the identification more reliable or less reliable. Turns out it makes it much less reliable.”
Witnesses are especially bad at identifying people of a different race.
“There have been all kinds of studies showing that cross-racial identifications are the most often mistaken,” Jones explains, “because we recognize differences in how people of our own race look, little subtle differences, but we don’t recognize the nuances in people’s appearance if they are of a different race than we are. So that’s one of the reasons why eyewitness identifications can be so fraught with error, is people can only provide very general descriptions of somebody who is of a different race.”
According to the National Registry of Exonerations, a black prisoner serving time for sexual assault is 3.5 times more likely to be innocent than a white sexual-assault convict — and the major cause is misidentification of black defendants by white victims.
In Minnesota, a Black man named David Sutherland was exonerated in 2002, 17 years after being convicted of raping a white woman who identified him in a photo lineup. Sutherland’s exoneration was believed to be the first in the nation to result from prosecution-initiated post-conviction DNA testing. DNA testing also identified the actual rapist, though by then the statute of limitations had expired and he couldn’t be prosecuted.
“There is this problem with cross-racial identification and it’s particularly strong in Caucasians trying to identify African-Americans,”Jonas said. “And it’s so important to get this information to the jury, because I don’t know that all jurors intuit it. I think many people who study the criminal justice system know about this phenomenon, but people outside of it really don’t.”
The case of Jennifer Thompson-Cannino and Ronald Cotton is one of the most well-known wrongful convictions involving eyewitness identification, because Thompson-Cannino and Cotton have spoken about it publicly since Cotton’s exoneration — even co-authoring a memoir called “Picking Cotton” about their experience with the justice system. Thompson-Cannino, a white woman, was a college student when she was raped at knifepoint in 1984 by a Black man who had broken into her home in the middle of the night. She says she made every effort to memorize every detail of her rapist’s face, even looking for scars or tattoos that could help identify him later. After choosing Cotton in a photo lineup and again in a live lineup, Cotton was convicted on Thompson-Cannino’s testimony and sentenced to life in prison. But more than 10 years later, DNA evidence exonerated Cotton and implicated another man, Bobby Poole, who had bragged years earlier to a fellow inmate about committing the crime.
Even after seeing Poole in person, Thompson-Cannino was convinced she had never met him before; Cotton’s face was seared into her mind. It’s a horrifying example of how a fake memory can be created, with a perfect storm of circumstances that can lead to false eyewitness identification — involving a high-stress crime, a weapon, cross-racial identification and positive reinforcement from detectives present at the ID, who told Thompson-Cannino she “did great” after choosing Cotton’s photo.
“Even in a situation that Jennifer experienced — I think she was with her assailant for a half hour — and she tried to look at his face and she tried to put it in mind. And then she still got it wrong when it came to the lineup,” Steblay says.
“If anything good can come out of what Ronald Cotton suffered because of my limitations as a human being, let it be an awareness of the fact that eyewitnesses can and do make mistakes,” Thompson-Cannino wrote in a New York Times op-ed in 2000. “I have now had occasion to study this subject a bit, and I have come to realize that eyewitness error has been recognized as the leading cause of wrongful convictions.”
But just because eyewitnesses can make mistakes, that doesn’t mean they can’t be instrumental in solving crimes.
“Sometimes those eyewitnesses are spot-on right,” Steblay says, “and so you just can’t throw them all out and say ‘no one gets to be an eyewitness and testify anymore,’ because sometimes they’re right.”
Steblay says it comes down to eyewitness evidence being used correctly: avoiding anything that could contaminate the accuracy of the memory, and preserving it quickly just as a detective would with other pieces of evidence.
“If you think of forensic science evidence like blood spatter or fingerprints or footprints, think of how police treat those when they’re doing a good job,” Steblay explains. “They immediately cordon off the scene, and they don’t mix their blood samples, and they store them properly, and they collect them right away, and they use experts. If you think of the witness’s memory like trace evidence ... we want to collect that memory evidence sooner rather than later and we want to make sure that we’re not asking questions that are suggestive because you don’t want to taint the evidence.”
Reforming the way eyewitness identifications are made in lineups and photo arrays is just one aspect of preserving the integrity of eyewitness IDs, but it’s an important one. And the effort to reform eyewitness identification procedures in Minnesota and elsewhere has been ongoing for years. In 2006, Steblay co-wrote an article with then-County Attorney Amy Klobuchar on a year-long pilot project in Hennepin County, which examined blind sequential lineups (or lineups where the victim views photos one at a time instead of all at once) and found that they reduce the number of witnesses who guess when identifying a suspect, and reduce the number of innocent people mistakenly identified. Hennepin County subsequently implemented lineup procedures for eyewitness identification years before last month’s measure to require them statewide.
Reforms to eyewitness identification have also been recognized on the federal level. In 2017, the Department of Justice issued procedures for how the FBI and other Department of Justice law enforcement agencies should conduct photo arrays, with guidelines similar to the core reforms sought by justice advocates. The memo specifies that “nothing in these procedures implies that an identification not done in accordance with them is unreliable or inadmissible in court.”
“Eyewitness identifications play an important role in our criminal justice system, both by helping officers and agents identify suspects during an investigation and by helping juries determine guilt at trial,” then-Deputy Attorney General Sally Yates said in the 2017 memo. “It is therefore crucial that the procedures law enforcement officers follow in conducting those identifications ensure the accuracy and reliability of evidence elicited from eyewitnesses.”
One of the reasons nearly half of U.S. states haven’t implemented the core reforms to eyewitness identification lineups is objections from police jurisdictions, particularly in smaller towns with less resources.
“Some of it is individual police jurisdictions just not wanting to be told how to do things,” Steblay says. “Sometimes police or prosecutors say they don’t want rules to be so rigid, because then if we just violate one of the rules, then that ruins our prosecution or we can’t catch the bad guys or whatever. So they feel like it’s undermining their ability to do the good job that they should do.”
“I don’t see it that way,” Steblay continues. “I just think these are not difficult changes.”
Yet even of the U.S states that do have statewide procedures for eyewitness identification, those procedures aren’t always followed. And it’s up to individual judges to determine whether the eyewitness ID obtained in a botched lineup is permissible as evidence in court.
“I know there are some states that have great policies on the books for eyewitness memory evidence collection, and yet I keep getting calls from attorneys in those states that say, ‘Yep, wait till you hear about this one!’ And it’s, again, a police officer who either wasn’t trained or just abandoned that training and just did whatever he or she wanted to do to get that eyewitness evidence,” Steblay says.
According to reporting by Andy Mannix of the Minneapolis Star Tribune, a 2017 analysis by the newspaper found that even among major law enforcement agencies in Minnesota who were already trained in lineup best practices, some officers didn’t always follow those rules.
In one case, a police officer sent a photo array to a witness via email, making it impossible to gauge confidence, implement a sequential lineup or record the identification process. The lineup also included suspects whose age, race and hair color didn’t match the victim’s description of the perpetrator.
“It’s the whole system,” Steblay says of wrongful convictions where eyewitness identification played a role. “It’s the first police officer who collected that eyewitness evidence, it’s the supervisor who either didn’t question it or didn’t study it or wasn’t reported thoroughly and just let that evidence go to the prosecutor’s office, and then to the court.”
“So many of these things tie together,” Jones explains. “Because maybe you have a victim, they testify about their eyewitness identification of the defendant, and then you get into other policy issues that we work on like jailhouse informants, where people are incentivized to testify against a defendant either by thinking that they might get a better deal on their sentence or being paid money and so forth, and then that reinforces that identification to the jury. So you get these layers and layers of reinforcement that are themselves often flawed, and you can end up with a real mess.”
“Our goals are really centered around helping people who are innocent,” Jonas says, though she acknowledges that the Innocence Project’s initiatives can have a broader impact on the justice system as a whole.
“We know that there are more Black and brown people being arrested, tried and incarcerated than Caucasian people. Do I think that jury instructions about cross-racial mistaken eyewitness identification could help that? Of course I do. To keep police officers from tainting lineup procedures by giving them simple instructions? Will that benefit people of color? Of course it will.”
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