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Submitted 5:32 p.m.
11.02.2015
Letter to the Editor

More than 70% of the nation’s 333 people proven innocent through DNA testing were misidentified, making eyewitness misidentification a leading contributing cause of wrongful conviction. ”

Rebecca Brown, Karen Newirth and Barry Scheck

Eyewitness Testimony? Not So Fast.

A letter from the Innocence Project

To the rhetorical question “Eyewitness Testimony is Unreliable…Or Is It?” posed in a recent Marshall Project headline, we answer with a resounding yes. More than 70% of the nation’s 333 people proven innocent through DNA testing were misidentified, making eyewitness misidentification a leading contributing cause of wrongful conviction. But rather than highlight the best practices that many agree are proven deterrents to misidentification, the story focuses on a narrow debate among researchers: Does an eyewitness’s initial level of confidence in his or her identification have a weak, moderate or strong relationship to the identification’s actual accuracy?

The article reports that a recent paper by psychology professor John T. Wixted and colleagues asserts that there is a stronger connection between an eyewitness’ certainty expressed at the time of identification and the accuracy of that identification than has been previously reported. (In fact, prior research – including that which Dr. Wixted and colleagues cite in their article – has found the same relationship between initial confidence and accuracy in certain circumstances.) Nevertheless, this minor disagreement distracts from the fact that the scientific community and we agree on the following more important facts about eyewitness confidence: (1) When an identification is conducted using best practices, an eyewitness’ initial confidence in his or her identification offers important information about likely accuracy; (2) confidence can be inflated by a number of factors; (3) witnesses are often unaware that their confidence has been inflated; and (4) confidence is the most important factor in determining if a witness is believed.

These undisputed conclusions have resulted in scientific consensus that a confidence statement should be taken immediately after an identification.
Half of the nation’s states now mandate or recommend that police elicit and record a witness’s statement of confidence at the time of an identification. These stakeholders – like Dr. Wixted and others – also recognize that other police reforms are necessary to safeguard against misidentification.

These best practices include: the blind administration of lineups (which prevents the intentional or unintentional leaking of information to witnesses); unbiased instructions to the witness (which reduce pressure on witnesses to choose and negate the natural assumption that the perpetrator is in the lineup); and recording the procedure (which allows comprehensive review of the identification procedure). As the article in The Marshall Project acknowledges, the National Academy of Sciences has recently reaffirmed that these critical features of a police-led identification procedure have been shown to reduce pre-lineup suggestion, pressure felt by witnesses, and post-identification confirmation, thereby enhancing reliability.

Unfortunately, the Wixted paper suggests in passing that the criminal justice system can create a reliable framework for the assessment of eyewitness evidence “without changing a single police procedure” by simply instructing jurors to consider only the initial level of certainty expressed. This is dangerously misguided. Ignoring the need for other reforms scientifically demonstrated to enhance the accuracy and reliability of eyewitness evidence fails to ensure that meaningful confidence statements are preserved and offers no assurance that jurors, if instructed to do so, could disregard current expressions of confidence in favor of earlier ones.

If used as a policy or legal guidepost, the prescription offered by the Wixted study would curtail the substantial progress taking hold across the country. Narrow debates among researchers can obscure the common ground on which they all agree, distract policymakers and stymie reform. The consequences of this are too grave. DNA testing has shown that there have been 236 innocent defendants wrongfully convicted based on misidentification. In 92 of those cases, or 39 percent, the real assailant went on to commit other violent crimes. If best practices are followed, far fewer innocent people will be arrested and prosecuted and more truly guilty people will be apprehended.

Rebecca Brown is the policy director, Karen Newirth a senior staff attorney and eyewitness identification expert, and Barry Scheck the co-founder of the Innocence Project.