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AMERICAN BAR ASSOCIATION

ADOPTED BY THE HOUSE OF DELEGATES

August 9-10, 2004

RESOLVED, That the American Bar Association adopts the American Bar

Association Statement of Best Practices for Promoting the Accuracy of Eyewitness

Identification Procedures dated August 2004.

FURTHER RESOLVED, That the American Bar Association urges federal, state,

local and territorial governments to reduce the risk of convicting the innocent, while

increasing the likelihood of convicting the guilty, by adopting the following principles:

1. Police and prosecutors craft detailed guidelines for conducting lineups and

photospreads in a manner that maximizes their likely accuracy;

2. Police and prosecutors receive periodic training on how to implement the

above-referenced guidelines,

3. Police and prosecutors receive periodic training on non-suggestive

techniques for interviewing witnesses;

4. Internal mechanisms be created within police departments and

prosecutors’ offices to periodically update such guidelines to incorporate advances in

social scientific research and in the continuing lessons of practical experience; and

5. Every set of guidelines should address at least the subjects, and should

incorporate at least the social scientific teachings and best practices, set forth in the

American Bar Association Statement of Best Practices for Promoting the Accuracy of

Eyewitness Identification Procedures dated August 2004.

FURTHER RESOLVED, That the American Bar Association, to improve the

ability of juries and judges to make fully informed trial decisions concerning the

accuracy of eyewitness identifications, urges federal, state, local and territorial

governments to reduce the risk of convicting the innocent, while increasing the

likelihood of convicting the guilty, by adopting the following principles:

RECOMMENDATION

RESOLVED, That the American Bar Association adopts the American Bar Association

Statement of Best Practices for Promoting the Accuracy of Eyewitness Identification Procedures

dated August 2004.

FURTHER RESOLVED, That the American Bar Association urges federal, state, local

and territorial governments to reduce the risk of convicting the innocent, while increasing the

likelihood of convicting the guilty, by adopting the following principles:

1. Police and prosecutors craft detailed guidelines for conducting lineups and

photospreads in a manner that maximizes their likely accuracy;

2. Police and prosecutors receive periodic training on how to implement the above-

referenced guidelines,

3. Police and prosecutors receive periodic training on non-suggestive techniques for

interviewing witnesses;

4. Internal mechanisms be created within police departments and prosecutors’

offices to periodically update such guidelines to incorporate advances in social scientific research

and in the continuing lessons of practical experience; and

5. Every set of guidelines should address at least the subjects, and should

incorporate at least the social scientific teachings and best practices, set forth in the American

Bar Association Statement of Best Practices for Promoting the Accuracy of Eyewitness

Identification Procedures dated August 2004.

FURTHER RESOLVED, That the American Bar Association, to improve the ability of

juries and judges to make fully informed trial decisions concerning the accuracy of eyewitness

identifications, urges federal, state, local and territorial governments to reduce the risk of

convicting the innocent, while increasing the likelihood of convicting the guilty, by adopting the

following principles:

1. Courts should have the discretion, where appropriate in an individual case, to

allow a properly qualified expert to testify both pretrial and at trial on the factors affecting

eyewitness accuracy; and

2. Whenever there has been an identification of the defendant prior to trial, and

identity is a central issue in a case tried before a jury, courts should consider exercising their

discretion to use a specific instruction, tailored to the needs of the individual case, explaining the

factors to be considered in gauging the accuracy of the identification.

AMERICAN BAR ASSOCIATION STATEMENT OF BEST PRACTICES FOR

PROMOTING THE ACCURACY OF EYEWITNESS IDENTIFICATION

PROCEDURES DATED AUGUST, 2004

A. General Guidelines for Administering Lineups and Photospreads

1. Whenever practicable, the person who conducts a lineup or photospread and all others present

(except for defense counsel, when his or her presence is constitutionally required) should be unaware of

which of the participants is the suspect;

2. Eyewitnesses should be instructed that the perpetrator may or may not be in the lineup; that they

should not assume that the person administering the lineup knows who is the suspect; and that they need not

identify anyone, but, if they do so, they will be expected to state in their own words how certain they are of

any identification they make or the lack thereof;

B. Foil Selection, Number, and Presentation Methods

1. Lineups and photospreads should use a sufficient number of foils to reasonably reduce the risk

of an eyewitness selecting a suspect by guessing rather than by recognition;

2. Foils should be chosen for their similarity to the witness's description of the perpetrator, without

the suspect's standing out in any way from the foils and without other factors drawing undue attention to the

suspect;

3. The advisability of either a sequential lineup or photospread (showing one person or photo to a

witness at a time, with the witness being asked to identify or not identify each person or photo immediately

after it is presented) or a simultaneous lineup or photospread (showing a witness all lineup members or

photographs at the same time) should be carefully considered;

4. Police departments and prosecutors should be urged to participate in properly-designed

comparative field experiments in which one group of police districts in a city or county uses simultaneous

lineup and photospread methods while another group of police districts uses sequential methods;

C. Recording Procedures

1. Whenever practicable, the police should videotape or digitally video record lineup procedures,

including the witness’s confidence statements and any statements made to the witness by the police;

2. Absent videotaping or digital video recording, a photograph should be taken of each lineup and a

detailed record made describing with specificity how the entire procedure (from start to finish) was

administered, also noting the appearance of the foils and of the suspect and the identities of all persons

present.

3. Regardless of the fashion in which a lineup is memorialized, and for all other identification

procedures, including photospreads, the police shall, immediately after completing

the identification procedure and in a non-suggestive manner, request witnesses to indicate their level of

confidence in any identification and ensure that the response is accurately documented.

D. Immediate Post-Lineup or Photospread Procedures

1. Police and prosecutors should avoid at any time giving the witness feedback on whether he or she

selected the "right man" -- the person believed by law enforcement to be the culprit.

REPORT

I. Introduction: Illustrating the Problem

On June 5, 1999, Calvin C. Johnson, Jr. was released from prison after having served more than 15 years

of a life sentence for rape.

Johnson was released because he had recently been exonerated by DNA

evidence. Johnson’s conviction had been based largely on a flawed eyewitness identification.

The rape victim, Ms. Mitchell, had selected Johnson’s black-and-white photo from a photospread that

included a number of full color pictures. But Ms. Mitchell selected someone other than Johnson during a

live lineup. Johnson was clean-shaven in the photospread, but his work identification photos taken around

the time of the rapes showed him sporting a very full, bushy beard. He still had the beard at the time of the

lineup. The lineup was held about one week after the crime, far too soon after the rape for him to have had

sufficient opportunity to grow a full beard in the interim. Yet Ms. Mitchell had told the police that her

assailant was either clean-shaven or sported some “stubble.”

The rape took place mostly in darkness (there was some light from the nearby bathroom shining into the

bedroom), with Ms. Mitchell passing in and out of consciousness. Ms. Mitchell was white, while her

assailant was African-American, as was Johnson. The police reported finding a single African-American

pubic hair on Ms. Mitchell’s body, a hair that police forensics examiners twice concluded could not have

been Johnson’s.

Ms. Mitchell had, at the request of the police, attended a preliminary hearing on another rape charge

against Johnson, watching as Johnson was there identified in open court as a rapist. The two rapes were so

similar that the police believed that the same man had committed both crimes. Yet Johnson was later

acquitted of the second rape, with that victim’s father actually congratulating Johnson because, after hearing

the evidence, the father believed that Johnson was innocent of the crime.

When Ms. Mitchell identified Johnson at the trial that would eventually lead to his conviction, Ms.

Mitchell claimed at one point that she was so upset at the lineup that she purposely identified the wrong man.

She also changed her story, now saying at trial that her assailant “might have had a beard.” At another point,

she said, “I just wanted to pick someone out [of the lineup] and get out of there.” Johnson offered alibi

witnesses to further challenge the victim’s testimony. Nevertheless, the jury convicted the entirely innocent

Johnson.

When this error was finally brought to light, the prosecutors’ office announced that too much time had

passed to determine who the real rapist was. Forensics sciences professor Greg Hampikian later explained:

“The DA has more pressing needs than to reinvestigate a sixteen-year-old case, especially without an

available victim; meanwhile, someone has gotten away with rape.”

Although there were numerous likely causes of Calvin Johnson’s wrongful conviction, flawed eyewitness

identification was a chief contributor. Cross-racial identifications, like that made by Ms. Mitchell, the

research shows, are less trustworthy than intra-racial ones; the victim had little opportunity to observe her

assailant; she misidentified someone as her attacker at the lineup; and her testimony was tainted by her

attendance at a hearing in another related case, all of which happened in the face of forensics evidence

This summary of Calvin Johnson’s case is drawn from CALVIN C. JOHNSON, JR., WITH GREG HAMPIKIAN, EXIT TO FREEDOM:

THE ONLY FIRSTHAND ACCOUNT OF A WRONGFUL CONVICTION OVERTURNED BY DNA EVIDENCE XCI-XVII, 73-74, 84-133, 239-

47 (2003). A more complete version of this Report will be available to the public soon.

Id. at 281.

excluding Johnson as a suspect.

Johnson’s conviction starkly illustrates how entirely innocent persons can

be convicted when condemned by confident eyewitnesses in good faith fingering the wrong man.

The reliability of eyewitness identification is frequently questionable, as this Report will explain, even

under circumstances in which the police do a much better job than they did with Calvin Johnson. Nor is

Johnson’s case unusual. Numerous high-profile cases of exonerations where the innocent were convicted

based substantially upon inaccurate eyewitness testimony have made their way into the media.

The most notorious of the recent cases was that of Anthony Porter, who was once but a few days from

execution and whose experience eventually led to a complete re-examination of the death row process in

Illinois.

Other notorious cases have been the subject of recent best-selling or well-received books.

Perjured or compelled eyewitness testimony is part of the problem and is addressed in a related paper.

The

subject of this Report, however, is mistaken eyewitness testimony, and its status has been concisely

summarized by award-winning journalist Stanley Cohen, who notes that many criminal cases commonly

include the sorts of factors that wrongly took away Calvin Johnson’s freedom:

It is difficult to counter [a] mistaken identification offered in good faith by a witness

who actually saw the accused. But even when the sole intent of the witness is to abet

the judicial process, eyewitness accounts have been found to be generally unreliable.

The original identification is often made under unfavorable conditions; the witness

was likely to be a good distance away from the accused who was possibly shrouded in

darkness; the glimpse of a suspect was likely a fleeting one, perhaps no more than a

second or two; observations made in extreme circumstances, when adrenaline is

running high, tend to be untrustworthy. When a defendant is convicted solely on the

basis of such testimony, the possibility of error is exceptionally high.

Cohen’s point is not to suggest that eyewitnesses are routinely wrong - - an extreme position that would

flatly require exclusion of most such testimony from trial.

Rather, Cohen apparently argues that the risk of

error is so high that safeguards are needed to minimize that risk.

The state of the research into the causes

of, and cures for, eyewitness error is luckily sufficiently advanced that there is widespread agreement on

some ways that we can do better now.

In other areas, there is a dispute about whether the research has

See infra text accompanying notes 16-20 for a discussion of the significance of these factors.

See, e.g., STANLEY COHEN, THE WRONG MAN: AMERICA’S EPIDEMIC OF WRONGFUL DEATH ROW CONVICTIONS 39-82 (2003)

(discussing many of these cases); BARRY SCHECK, PETER NEUFELD, JIM DWYER, WHEN JUSTICE GOES WRONG AND HOW TO MAKE

IT RIGHT 53-100 (2001) (discussing additional cases).

See COHEN, supra note 4, at 41-46.

See generally COHEN, supra note 4; SCHECK, supra note 4.

See COHEN, supra note 4, at 40 (on perjured or compelled eyewitness identifications); Honorable Arthur L. Burnett, Sr., A

Preliminary Analysis of How the Criminal Justice System Handles Accomplice and Informant Testimony and Some

Recommendations for Improvements (internal report to the ABA Ad Hoc Committee on Innocence and the Integrity of the

Criminal Justice System).

See COHEN, supra note 4, at 39-40.

Cf. Edward J. Imwinkelried, Flawed Expert Testimony: Striking the Right Balance in Admissibility Standards, 18 CRIM. J. 28, 30

(2003) (“The problem with erroneous expert testimony is smaller than and more tractable than the problem of mistaken eyewitness

testimony by layperson.”).

Although Cohen does not expressly state his argument in terms of risk, a fair reading of his work suggests that risk minimization

is his goal, though he also sees the fear of error as grounds for opposing the irreversible punishment of death. See C

OHEN, supra

note 4, at 39-82, 269-90. This Report expresses no opinion on the question of capital punishment. The risk of eyewitness error is

present in many types of criminal cases, the vast majority of which do not involve even a potential death sentence.

See infra Part III; Saul M. Kassin, On the “General Acceptance” of Eyewitness Testimony Research: A New Survey of the

Experts, 56 Am. Psychologist 405 (2001) (survey of experts reveals an agreement rate of at least 80% on many of the factors

affecting eyewitness accuracy that are discussed in this report).

gone far enough to justify implementing certain new procedures without more data.

This Report

summarizes the state of, and lessons learned from, that research. The Report concludes that the research

unequivocally supports: (1) using “double-blind” procedures in which no one involved in administering a

lineup or photospread knows who is the suspect; (2) carefully instructing eyewitnesses not to assume that the

right person is in the line or spread; (3) increasing the number of “foils” in the line and selecting them to

match the particular eyewitness’s description of the perpetrator; (4) the witness’s reciting in her own words

how confident she was in her selection; and, whenever practicable, (5) videotaping or digitally video

recording a lineup. The Report further concludes that powerful research mandates wider use of special jury

instructions and expert testimony on eyewitness identification problems to assist factfinders in fairly

evaluating the evidence in appropriate cases. However, concerns about the maturity of the research and its

dependence on simulations rather than fieldwork caution against a too-ready embrace of one new procedure,

“sequential” lineups or photospreads, in which foils and the suspect are presented to the witness one-at-a-

time instead of, as is currently done, in a single simultaneous presentation of all the participants.

This

Report does recommend, however, that the accuracy and practicability of the promising sequential

techniques should be tested in comparative field studies in which some police districts use the new method

while others do not, an approach similar to that recently implemented in Illinois by statute.

Greater detail

about these proposals is contained in the Resolution on Eyewitness Identification attached to this Report.

Part II of this Report examines the causes of eyewitness error, while Part III summarizes the data relevant

to our suggested improvements for conducting lineups and photospreads. Part IV explores the data on ways

to enhance the jury’s ability better to gauge the quality of eyewitness testimony, with Part V summarizing

other reform efforts and stating this Report’s conclusions.

II. The Causes of Eyewitness Error

A. Factors Affecting Identification Accuracy

The sorts of factors that can lead eyewitnesses into or out of sin are routinely grouped into five

categories, specifically, those concerning witness characteristics, perpetrator characteristics, the nature of the

event (the crime) itself, post event experiences, and witnessing or testifying factors:

1. Witness Characteristics: Neither the eyewitness’s sex, race, nor ethnicity, nor his intelligence (if

within normal range), belief in having strong face-recognition skills, personality, or expectation

of a future recall or recognition test have any influence on his ability accurately to identify the

perpetrator. However, very young children do poorer than older ones or adults at recognizing

strangers and are more susceptible to suggestion, while the elderly may have information – recall

and face-recognition - - disadvantages. Witnesses intoxicated at either the time of the crime or

during a later interview respectively have greater encoding and accurate recall problems.

2. Perpetrator Characteristics: Perpetrators with distinctive appearances, such as unusual

hairstyles, tattoos, or scars, are more easily recognized than are the less distinctive. Cross-racial

identifications are generally inferior to within-race identifications.

See infra text accompanying notes 34-35.

See infra text accompanying notes 97.

See Resolution on Improving the Eyewitness Identification Process.

BRYAN CUTLER, EYEWITNESS TESTIMONY: CHALLENGING YOUR OPPONENT’S WITNESSES 13-17 (2002).

Id. at 18. For more details on cross-racial identification, see American Psychological Association, Special [Symposium] Theme:

The Other Race Effect and Contemporary Criminal Justice: Eyewitness Identification and Jury Decisionmaking, 7 P

SYCH., PUB.

POL’Y, & L. 3-262 (2001).

3. Event Factors: The longer the crime, the more time effectively to encode information, thus

enhancing memory. Visible weapons (“weapons focus”), however, draw a witness’s attention to,

for example, the gun or knife, thus reducing accuracy in describing people, things, or events.

Moderate levels of stress-induced physiological arousal enhance memory performance but low or

high arousal levels harm performance.

4. Post-Event Factors: The greatest memory decline occurs shortly after the crime, but memory

degradation continues as more time passes. If an eyewitness commits to an identification of a

mug shot, the witness is likely to identify the same person at later photo arrays, lineups, or trials,

whether or not the suspect is the perpetrator. “Unconscious transference” is also a significant

problem “in which an eyewitness is familiar with the suspect from some event other than the

crime (perhaps, for example, because both occasionally use the same subway station), does not

recall why he knows the suspect, and therefore assumes that he knows the suspect because the

suspect is the perpetrator.”

5. Testimonial Factors: These factors concern the relationship between the quality of eyewitness

testimony and the accuracy of identification. Counter-intuitively, a mismatch between an

eyewitness’s description of a perpetrator and the appearance of the suspect is often not an

appropriate reason to doubt the witness’s accuracy. This is so because of the difference between

”recall” - - retrieving information from memory - - and “recognition,” simply recognizing the

right answer when someone else presents it to you. Research reveals that the quality of the recall

process of describing the perpetrator is only weakly related to the accuracy of the recognition

process of identifying a lineup or photospread suspect. Similarly, inconsistency among multiple

perpetrator descriptions given by a single witness can be caused by variation in interview

methods, interviewer expectations, or other factors, but is, in any event, not a good predictor of

identification accuracy.

Also counter-intuitively, there is a weak association between the eyewitness’s confidence in

the accuracy of an identification and its true accuracy. Confidence is also malleable and can be

raised or lowered by post-crime events such as investigating officer feedback that the witness

“picked the right man.”

Countering these factors’ influence can be done at two separate stages: the input stage in which

identification events are implemented by law enforcement and the processing stage in which the judicial

system must evaluate the accuracy of identifications resulting during input.

III. Improving Inputs: Police Procedures and Human Memory

A. The Victim or Eyewitness’s Initial Report of a Crime and Pre-Identification Interviews

Suggestion can inadvertently be introduced by the police during their first contact with a witness, such as

a 911 call. Non-leading, open-ended questions; a thorough effort to obtain complete information; and careful

record-keeping (ideally audio or video records, whenever possible) are among the suggestions made by

research psychologists for minimizing the influence of the police on witness memory and for later accurate

reporting of the witness’s memory as it existed at the time of the contact with the police.

CUTLER, supra note 16, at 18-20.

Id. at 21-22.

See id. at 22-25.

B. The Lineup

The main goals for improving lineup accuracy are reducing potential sources of suggestion and the

influence of relative judgment processes. Research suggests that a substantial amount of guessing goes on

by eyewitnesses in lineups. Sometimes guessing results in accidentally identifying a guilty party, sometimes

in fingering the innocent, as defined in simulation and archival studies.

The potentially pernicious

influence of guessing must, therefore, also be controlled. Here are some of the various techniques for

accomplishing these goals:

1. Sequential Lineups: The usual lineup procedure is to present all suspects to the witness

simultaneously in a line.

However, this process encourages relative judgments, that is, choosing

the person who, among those in the line, looks most like the perpetrator.

With sequential

lineups, the witness views one lineup participant at a time and is not told how many he will see.

As each participant is presented, the eyewitness states whether or not it is the perpetrator.

The

witness is thus encouraged to compare the individual participant’s face to the witness’

recollection of the perpetrator’s face rather than also comparing the participants’ faces to one

another in a quest for the “best match.” Once an identification is made in a sequential procedure,

the procedure stops.

There is near uniform agreement in all the published literature that the sequential procedure “produces a

lower rate of mistaken identifications when the perpetrator is absent….”

This conclusion was reaffirmed in

a recent “meta-analysis” of studies conducted around the world using a variety of methodologies.

This

meta-analysis concluded that false identifications were twice as likely in target-absent arrays using

simultaneous presentation than when using sequential presentation.

The vast majority of researchers also conclude that sequential methods result in “little loss of accuracy

when the perpetrator is present.”

However, what constitutes a “little loss” is debatable. Thus the same

“meta-analysis” noted above reported a 15 percent loss in correct identifications by foregoing simultaneous

methods in favor of sequential ones.

Professor Steven Penrod suggests that this loss may be attributable,

however, largely to former “lucky guessers” now making no choice whatsoever, thus constituting no real loss

at all. Sequential methods arguably function best, however, only in conjunction with the “blind lineup”

procedure, in which no one involved in administering the lineup knows who is the suspect, a procedure about

which there is no scientific dispute and is also of critical importance in administering accurate simultaneous

lineups. These methods may face resistance in the field because they differ so much from the old ones and

are not self-evidently superior based on officers’ everyday commonsense.

Nevertheless, some police

departments in the United States are already making tentative efforts toward adopting sequential methods.

See Steven Penrod, Eyewitness Identification Evidence: How Well Are Witnesses and Police Performing?, 18 CRIM. J. 37, 37-45

(2003).

See CUTLER, supra, note 16, at 39.

See Michael J. Saks, et. al, Model Prevention and Remedy of Erroneous Convictions Act, 22ARIZ. ST. L.J. 665 (2001) [hereinafter

Saks, Model Act].

See CUTLER, supra note 16, at 39.

Id. at 39.

Saks, Model Act, supra, note 23, at 686; see also Gary L. Wells, Eyewitness Identification Procedures: Recommendations for

Lineups and Photospreads, 22 L. &

HUMAN BEHAVIOR 603, 639 (1998); Penrod, supra note 21, at 46 (summarizing literature);

UTLER, supra, note 16, at 39; Kassin, supra note 11, at 410-11.

See Penrod, supra, note 21, at 46.

Saks, Model Act, supra, note 23, at 686 (citing Wells, et. al., supra, note 27, at 639-40).

See Penrod, supra, note 21, at 46.

See Wells et. al., supra, note 27, at 617.

See CUTLER, supra note 16, at 56-67.

Justice Robert Kreindler also ordered a sequential lineup in a recent case in which he concluded that the

scientific community was “unanimous in finding that sequential lineups are fairer and result in a more

accurate identification.”

Justice Kreindler further noted that he found not “a single scientific article

criticizing the sequential lineup or criticizing the scientific method used by psychologists in their

experiment.”

Justice Kreindler was not, however, entirely correct. There is a growing dissenting view among some

very well-respected social scientists that the research has not proceeded far enough to determine under what

conditions, if any, a sequential lineup is to be preferred to a simultaneous lineup.

Moreover, say some

researchers, it may be that there are factors other than the simple order of presentation that are the cause of

better outcomes for sequential lineups in many experiments. Additionally, field studies have not been done to

determine the practicability of sequential methods, though new technologies entering the marketplace now

may substantially reduce the time and out-of-pocket costs involved. These dissenters do not argue that

simultaneous lineups are the preferred method, and some seem to believe that sequential lineups will

eventually be proven superior in many circumstances. Nevertheless, their current view, if accepted, suggests

that the scientific evidence is insufficient to choose one method over another; therefore, either might do. To

add to the knowledge base and to test the practicability of the sequential method, Illinois has by statute

mandated that some police districts in cities of varying sizes uses sequential methods, while others use

simultaneous methods, with careful tracking of the results and problems by social scientists or by others

working under their guidance. Although the dissenters are thus far few in number, this Committee finds their

critique persuasive and the Illinois approach most consistent with an effort to improve the long run accuracy

of lineups and thus the chances of convicting the guilty while acquitting the innocent.

2. Lineup Size: Lineups in the United States typically involve five or six participants.

Given the

substantial evidence of eyewitness guessing, larger lineups should reduce the chances of a false

positive - - of a guesser selecting the (in fact innocent) suspect focused on by the police. The math is

straightforward: there is 1 in 6 chance of selecting the suspect by entirely random guessing (if no

other forces are at work) in a 6 person lineup but only a 1 in 12 chance of doing so in a 12 person

lineup.

There is no magic correct number. Britain, for example, uses arrays of 9.

The point is simply that any

increase in size will help to reduce the false positive rate.

But many researchers believe that 6 person

lineups create an unacceptably high risk of error, one study concluding, for example, that in real-world 6

person lineups the likely risk of a false positive would be 10% even if most of the other recommendations to

State of New York v. Rahim Thomas (2001). Although the vast majority of researchers accept the superiority of sequential

methods, Justice Kreindler was wrong to find, “unanimity” among those researchers. See infra text accompanying notes 62-76.

Id. See also CUTLER, supra, note 16, at 57. Other New York State judges have disagreed, however, with Judge Kreindler,

largely doing so in unpublished decisions collected by Committee member Dino Amoroso.

The sources relied upon for the position stated in this paragraph are Ebbe B. Ebbesen and Heather D. Flowe, Simultaneous v.

Sequential Lineups: What Do We Really Know?, www.psy.ucsd.edu%7eeebbesen/SimSeq.htm2003

; Dawn E. McQuiston, Roy S.

Malpass, & Colin Tredoux, Sequenital v. Simultaneous Lineups: A Review of Method and Theory (draft); Amina Memon & Fiona

Gabbert, Unraveling the Effects of Sequential Presentation in Culprit Present Lineups (in press); Kassin, supra note 11.

Penrod, supra, note 21, at 45.

See id. at 45.

See id. at 45. But see Roy Malpass, General Principles of Lineup Fairness Evaluation,

www.eyewitness.utep.edu/consult04.html

(last visited April 13, 2004) (American Psychology and Law Policy guidelines for

constructing fair lineups suggest, in Dr. Malpass’s view, a lineup size of at least 9 foils, meaning an array of at least 10 persons

when including the target).

See Penrod, supra, note 21, at 45.

improve lineup accuracy were followed.

This report therefore urges larger size lineups than is currently the

case whenever practicable. However, given debate over the necessary lineup size, this report does not

mandate a specific minimum number of foils, leaving that to the judgment of local jurisdictions in light of

the teachings of science and the resources available to local departments. It is useful to note, nevertheless,

that computerized databases should make it easier to have more foils in photo arrays than in live lineups so

that there need not necessarily be the same required minimum number of foils in both sorts of procedures.

3. Foil Selection: Foils should be selected so that they fit the witness’s description of the culprit rather

than that the foils and the suspect look like one another.

If all foils fit the suspect description, then

a witness cannot guess based on who comes closest to that witness’s description - - a relative

judgment process and a reasoned guess.

On the other hand, if every effort is made to select foils

because they all look so much like the suspect rather than because they fit the suspect description,

then, at some point, “the lineup would be composed of clones,” unduly interfering with recognition of

a guilty suspect.

Furthermore, there are a small number of special circumstances in which

alternative foil-selection strategies make more sense.

At the same time, the lineup must be designed to avoid the suspect’s standing out unduly from the

foils. For example, if the suspect is the only one wearing clothes similar to those worn by the

perpetrator during the crime,

that would draw undue attention to that suspect.

4. Avoiding Instruction Bias: The instructions given by the lineup administrator can significantly raise

the risk of false identification, even where the biases are subtle.

Eyewitnesses must be told that the

perpetrator may not be in the lineup, that they should not therefore feel that they must make an

identification, and that the person administering the lineup does not himself know which person is the

suspect.

Non-verbal cues must also be avoided by the lineup administrator.

Of course, where

there are multiple eyewitnesses, each lineup must be conducted with one witness at a time and out of

the sight of other witnesses.

5. Collecting Confidence Judgments: “A clear statement should be taken from the eyewitness at the

time of the identification and before any feedback as to whether he or she identified the accurate

culprit.”

This accurately preserves the witness’s confidence level at the time the identification

was made and before other influences can taint or alter the witness’s memory of how confident he

was in his choice.

Ideally, the witness should never be told whether he selected the “right man”

so that his confidence is not artificially inflated by the time of trial.

See, e.g., Wells, et. al., supra note 29, at 635 (describing the 10% error rate as “far higher than what would seem acceptable to

the justice system.”); Penrod, supra note 48.

See Penrod, supra, note 21, at 45-46.

See Wells et. al., supra, note 27, at 632.

See id. at 632.

See id. at 632-34.

See CUTLER, supra, note 16, at 40-41.

See Wells, et. al., supra, note 27, at 630.

See CUTLER, supra, note 16, at 34.

See Penrod, supra, note 21, at 45.

See CUTLER, supra note 16, at 34.

Penrod, supra, note 21, at 46.

See id. at 46. Psychology Professor Brian L. Cutler summarizes much of the research on the relationship between a witness’s

confidence in an identification and its accuracy thus:

[T]he relationship between a witness’s confidence and the accuracy of her testimony or identification is

modest at best. This is because confidence and accuracy are influenced by different things. Some

people are always confident, but not always right. Others may be rarely confident, but frequently

correct. The bigger problem with eyewitness confidence is that it is malleable.

6. Accurately Record the Lineup, Including Videotaping: Accurate records of a lineup procedure

can help to improve later judicial and jury assessment of the quality of the lineup and the

accuracy of the identification.

Videotaping would especially enable accurate recreation of

lineup circumstances.

However, multiple cameras are likely necessary to achieve this goal most

effectively; the procedure does not itself improve lineup accuracy; and videotaping can be costly

in terms of time, money, and equipment.

Nevertheless, on balance, videotaping or digital video

recording of lineups seems highly desirable, where practicable.

C. Show-ups

Show-ups involve showing a single suspect to an eyewitness and asking him to identify or reject the

suspect as the perpetrator.

There is clear evidence that show-ups are more likely to yield false

identifications than properly constructed lineups.

Show-ups hint to the witness that the police believe that

“this is the man,” a highly suggestive message.

Moreover, given no other options, it is often hard

CUTLER, supra note 16, at 24-25. Concerning this last point, the research reveals that telling a witness that she made the correct

choice increases confidence while reducing the confidence-accuracy correlation. See Steven Smith, et. al., Postdictors of

Eyewitness Errors: Can False Identifications Be Diagnosed in the Cross-Race Situation?, 7 P

SYCH., PUB. POL’Y, & LAW 153, 165

(2001). Repeated post-event questioning can have a similar effect. See id. at 165. The bottom line: The at-best modest association

between confidence and accuracy when measured “’cleanly’ - - just after an interview or identification and without any social

influence” - - degrades as social influences seep in with the passage of time. See C

UTLER, supra note 16, at 25. Therefore, prompt

recording of a witness’s stated confidence level elicited in a non-suggestive manner immediately after the identification is

essential. See Penrod, supra note 21, at 46.

See Wells et. al., supra, note 27, at 640.

See id.

See id. at 641.

See ANDREW E. TASLITZ & MARGARET L. PARIS, CONSTITUTIONAL CRIMINAL PROCEDURE 788 (2d ed. 2003). There is some

research suggesting that show-ups may be widely used. Thus one study found that 55% of identifications in a 488 case sample over

a four year period in a major metropolitan area were show-ups; another study found a show-up rate of 30% in El Paso, Texas; and

an intensive study of one Illinois detective found a 77% show-up rate. See Steblay, et. al., Eyewitness Accuracy Rates In Police

Show-up and Lineup Presentations: A Meta-Analytic Comparison, 27 L

AW & HUMAN BEH. 523, 524 (2003) (summarizing

research) [hereinafter Steblay, Eyewitness Show-up Accuracy Rates].

Wells et. al., supra, note 27, at 631. However, a more recent meta-analysis of the research done on the accuracy of show-ups

versus lineups strikes a more cautionary note. See Steblay, Eyewitness Show-up Accuracy Rates, supra note 114. These

researchers found only eight papers on the subject, with conflicting results; found further that, depending on the measure chosen,

under certain conditions show-ups may be no more dangerous for the innocent than are lineups, though using other measures the

opposite conclusion might be reached; and found inadequate exploration of the impact of a wide array of variables on accuracy.

Their conclusion, however, was that the “data currently available leave us with residual concern regarding potential dangers of

show-ups and with a strong appreciation of the need for research that will specifically address show-up accuracy under realistic

conditions comparing competent practice with biased procedure.” Id. at 539. Overall, there was a “paucity of data and…[a] need

for more deliberate attention to show-ups.” Id. at 539.

A few related points must be noted. For any identification method, accuracy declines as the time between the crime and

the identification increases, thus raising the number of false identifications. See Otto H. Maclin, et. al., Race, Arousal, Attention,

Exposure, and Delay: An Examination of Factors Moderating Face Recognition, 7 P

SYCH., PUB. POL’Y, & L. 134, 136-37 (2001).

If part of the argument in favor of show-ups is that they enable prompt identifications when memories are the most fresh, that

argument vanishes for show-ups done significantly after the time of the crime. But see id. at 538 (“The fact that the show-up

generally occurs shortly after the crime may further convince witnesses that the suspect is unlikely to be innocent. They may ask

themselves, ‘How many people can there be in this area that are wearing clothes like that?”’ But more research on clothing bias is

needed). Moreover, new software programs usable on laptops or personal digital assistants combined with digital camera

technology enable the prompt creation of on-the-scene video or photographic lineups by either simultaneous or sequential

methods, perhaps in the near future further minimizing the need-for-urgent-action justification for using show-ups. See Otto H.

Maclin, et. al., PCE_Basic: A Computerized Framework for the Administration and Practical Application of Research in

Eyewitness Psychology (March 2004) (paper presented at the 2004 Annual Conference of the American Psychology and Law

Society).

See Wells, supra note 27, at 631.

independently to judge the accuracy of the witness’s choice.

On the other hand, there is some research

suggesting that “a show-up is preferable to a poorly constructed lineup,”

though well-constructed lineups

are unquestionably the best choice.

Furthermore, show-ups can enable the quick release of innocent

persons at the crucial early stages of an investigation.

Many representatives of law enforcement at the

recent American Judicature Society Conference on Wrongful Convictions described show-ups as common

and as essential to effective law enforcement, contrary to the constitutional mandate that they be used only

when “necessary.” Given these competing concerns, it is difficult, absent further research, to craft a general

rule concerning when even prompt show-ups should or should not be permissible, so this Report postpones

any recommendation on this subject.

D. Photospreads

Photo arrays are governed by substantially the same principles as for lineups. Thus blind and sequential

spreads of adequate size, with foils selected to match eyewitness descriptions, with efforts made to avoid the

suspect’s standing out, and with proper instructions from the lineup administrator, are generally advised by

researchers.

One study comparing subject responses to photos of lineups versus videotaped lineups

maintains that a photo of a lineup and a photo array (a collection of photos of individuals) are very different

things.

Photo arrays are probably becoming increasingly important. As a Washington Post investigative staff

writer recently explained:

Like woolen uniforms, wooden batons and six-shot revolvers, the old-fashioned lineup

is a vanishing part of police work. The DC police department is the only one in the

Washington area that still uses it regularly, and only a decade ago it conducted 300

lineups a year.

Police departments today are far more apt to ask victims or witnesses to identify

photographs of suspects instead of the suspects themselves. Detectives can use

computer programs to comb through photo databases and can quickly create an array

of pictures from which a suspect can be identified at any time or place.

A live lineup is “a big hassle, compared to what we can do with what’s already on the

computer,” said Capt. John Fitzgerald of the Montgomery County police.

Some in law enforcement continue to be lineup advocates, however, noting that “lineups display a

suspect’s profile, posture and other features that a simple mug shot cannot capture, all of which can aid the

See id. at 631.

Saks, Model Act, supra note 23, at 687.

See id. at 687.

See CUTLER, supra, note 16, at 31-32.

See Tim Valentine & Pamela Heaton, An Evaluation of the Fairness of Police Lineups and Video Identifications, 13 Applied

Cognitive Psychology 559 (1999).

David A. Fahrenthold, Lack of Suspect Look-Alikes Helps Lead to Demise, WASH. POST, April 19, 2004, A01. The Post reporter

explained further:

D.C. Police have trouble not only in finding enough officers who bear some resemblance to the suspect,

but also in locating officers who can spare the time to go to police headquarters when they could be

patrolling the streets or investigating crimes. These human scavenger hunts can take hours, they said.

victim or witness in making an identification.”

Lineups also add the dimension of voice that is missing

from photospreads.

As former United States Attorney for the District of Columbia, Joseph E. diGenova,

explains: “They [the witnesses] didn’t look at a photo when the crime was committed. They looked at a

person.”

If photospread use is indeed rising relative to lineup frequency, that merely underscores the importance

of using the same principles for sound identification procedures, whether done by lineup or photospread.

Caution in administering photospreads and show-ups is especially important because flawed ones can

easily taint later lineup and at-trial identifications.

IV. Improving the Processing Stage

Once an identification has been made at a lineup, show-up or photo array, a new set of concerns must be

addressed: How, if at all, can we improve factfinders’ abilities properly to evaluate the fairness and accuracy

of lineup identifications. A variety of options have been suggested. Here we discuss just two that we found

most promising: use of experts and revamped jury instructions.

A. Expert Testimony

There is substantial psychological research establishing that eyewitness identification and memory

processes are not common knowledge

and correspondingly not within the knowledge of most jurors.

Jurors are likely unaware of such phenomena as weapons focus, retention intervals, and instruction bias.

Wells and colleagues summarize matters thus:

Taken together, the survey, post diction and mock-juror experiments, and the

confidence-accuracy studies converge on a worrisome set of conclusions: Jurors

appear to overestimate the accuracy of identifications, fail to differentiate accurate

from inaccurate eyewitnesses - - because they rely so heavily on witness confidence,

which is relatively nondiagnostic - - and are generally insensitive to other factors that

influence identification accuracy. Furthermore, this picture is even gloomier when

one considers that eyewitness confidence proves to be highly malleable.

Expert testimony is thus needed to educate jurors. Moreover, much of such expert testimony, if properly

presented by a qualified witness, should logically survive scrutiny under Daubert and other potential hurdles

to admissibility. Nevertheless, the courts are divided on the question. Some state and federal courts have

found such expert testimony inadmissible because it concerns knowledge within jurors’ everyday

understanding

or because cross-examination is deemed adequate to reveal deficiencies in eyewitness

Id.

CUTLER, supra note 16, at 42-44.

Id. at 129-30.

Wells et al., supra, note 27, at 354.

Id. at 354.

Id. at 454.

See, e.g., U.S. v. Larkin, 978 F. 2d 964 (7

Cir. 1992); U.S. v. Purham, 725 F. 2d 450 (8

Cir. 1974); U.S. v. Fosher, 590 F. 2d

381 (1

Cir. 1979); State v. Gaines, 260 Kan. 752 (1996); Commonwealth v. Ashley, 427 Mass. 620 (1998); State v. Coley, 32 S.

W. 4d 831 (Tenn. 2000); Commonwealth v. Simmons, 541 Pa. 211 (1995).

testimony.

Other courts leave it within the discretion of the trial judge to admit or exclude expert

testimony, such trial-judge-deference apparently being the predominate view among both federal and state

courts.

Still other jurisdictions allow expert testimony only under specific circumstances.

In a recent study, researchers found that expert testimony enhances jurors’ sensitivity to the factors that

influence identification accuracy without overly increasing juror skepticism of the witness’s identification.

These conclusions are largely consistent with numerous earlier trial simulation studies concluding that expert

testimony does indeed increase juror awareness of factors affecting eyewitness accuracy, assists them in

evaluating eyewitness testimony effectiveness, and reduces conviction rates.

D. Jury Instructions

Some courts give special instructions about eyewitness testimony, often as a replacement for expert

testimony. The earliest and most well-known of these is the Telfaire instruction.

The Telfaire instruction,

however, omits many important factors and can be misleading, for example, by suggesting that witness

confidence is a good predictor of eyewitness accuracy when the research shows otherwise.

The “Revised

Telfaire Instruction,” proposed by Professor Edith Greene, has been found in her own jury research to be

more effective than the original Telfaire instruction.

This revision is simpler, more accurately conveys the

lessons of the research, and explains the processes by which various factors affect eyewitness memory.

But, in the view of one of the leading experts in the area, California’s Wright instruction does an even better

more thorough job.

The Wright instruction can readily be updated with new research and easily tailored to

the factors important to a particular case.

In most jurisdictions, the question whether a jury instruction is proper is left to the trial court’s discretion.

Some courts find an instruction necessary where the evidence raises serious doubts as to the accuracy of an

See e.g., U.S. v. Poole, 794 F. 2d 462 (9

Cir. 1986). Support for the assertion that expert eyewitness identification testimony by

qualified witnesses should survive Daubert scrutiny and related admissibility tests can be found in C

UTLER, supra note 163, at

125-32.

See e.g., U.S. v. Currly, 977 F. 2d 1042 (7

Cir. 1992); U.S. v. Hudson, 884 F. 2d 1016 (1

Cir. 1995); U.S. v. Blade, 811 f. 2d

461 (8

Cir. 1987); U.S. v. Langford, 802 F. 2d 1176 (9

Cir. 1986); U.S. v. Brien, 59 F. 3d 274 (1

Cir. 1995), cert. denied, 516

U.S. 953 (1995); U.S. v. Hicks, 103 F. 3d 837 (9

Cir. 1996); State v. Chapple, 135 Ariz. 281 (1983); State v. Nordstrom, 200 Ariz.

229 (2001); People v. Lee, 96 N.Y. 2d 157 (2001); State v. Cole, 147 N.C. App. 637 (2001).

See e.g., State v. Moon, 45 Wash. App. 692 (1986); U.S. v. Hines, 55 F. Supp. 2d 62 (D.Mass. 1999); Brodes v. State, 250 Ga.

App. 323 (2001); People v. Whittington, 74 Cal. App. 3d Supp. 806 (1997).

See Jennifer Devenport, Brian Cutler, Veronica Stinson, & David Kravitz, How Effective Are the Cross-Examination and Expert

Testimony Safeguards? Juror’ Perceptions of the Suggestiveness and Fairness of Biased Lineup Procedures, 87 J. Applied Psych.

1042 (2002).

See, e.g., S. Fox & G. Walters, The Impact of General Versus Specific Expert Testimony and Eyewitness Confidence Upon

Mock-Juror Judgment, 10 L. & Human Beh. 387 (1980); Elizabeth Loftus, Impact of Experts Psychological Testimony on the

Unreliability of Eyewitness Identification, 65 J. of Applied Psychology 9 (1980); G. Wells, R. Lindsay & J. Tousignant, Effects of

Expert Psychological Advice on Human Performance in Judging the Validity of Eyewitness Testimony, 4 L. & Human Behavior

2785 (1980). See also B

RIAN L. CUTLER & STEVEN L. PENROD, MISTAKEN IDENTIFICATION: THE EYEWITNESS, PSYCHOLOGY, AND

THE LAW 240 (1995) (concluding that various studies support this conclusion: “Expert testimony improve[s] sensitivity without

affecting jurors’ overall level of skepticism about the identification.”). There is, however, reason to believe that identifying errors

in cross-racial identifications may still be particularly difficult, even for the most well-informed and well-instructed juries. See

Smith, supra note 106, at 165-67.

See United States v. Telfaire, 469 F. 2d 552, 558-59 (D.C. Cir. 1979).

See CUTLER, supra, note 16, at 159-60.

See Edith Greene, Judge’s Instruction on Eyewitness Testimony: Evaluation and Revision, 18 J. APPLIED SOCIAL PSYCH. 252,

252-76 (1988); CUTLER, supra, note 16, at 160-63) (reprinting the revised instruction).

See CUTLER, supra, note 16, at 163.

See id. at 163-68 (also reprinting the Wright instructions, which was first articulated in People v. Wright, 43 Cal. 3d 399 (1987)).

See id. at 168.

identification.

Omission of an instruction is usually found to be an abuse of discretion only where identity

is the central issue, there is no corroborating evidence, and the circumstances raise doubts about the

reliability of the defendant’s identification.

Some jurisdictions, by contrast, hold as a general proposition

that special instructions are unnecessary.

Still others consider it adequate to use only general instructions

about judging the credibility of any witnesses,

or special instructions to be unnecessary where identification

testimony has been corroborated by other evidence.

Jury instructions in other areas generally have not,

however, had a good record of sufficiently altering jury reasoning processes as intended so that the efficacy

of a more specific instruction, at least absent other reforms, such as use of expert testimony on the subject

and improvement of the quality of identification procedures themselves, is in doubt.

Jury instructions

about eyewitness identification accuracy tend to instruct jurors on general principles, such as “unconscious

transference,” that are relevant to the facts involved in a particular case but do not more specifically instruct

the jury about how those principles apply to the case at hand.

The instructions are necessarily general

because even experts cannot reliably opine after the fact that a particular identification was reliable.

Generality also avoids “usurping the jury’s role” as factfinder.

Nevertheless, some prosecutors object to

specific instructions precisely because, in their view, generalities tell the jury nothing about the particular

case.

Some judges might also hesitate to give instructions not supported by expert testimony at the

particular trial.

On the other hand, jury instructions on the areas in which there is widespread scientific

consensus can save time, much in the way that operation of the doctrine of judicial notice does.

Moreover,

there is reason to believe that well-crafted jury instructions in this area can at least have some positive

impact, however modest, on creating a more-informed jury better able to reach a rational decision.

V. Other Efforts at Reform and Conclusions

Well-known efforts at reform have been undertaken by the National Institute for Justice (NIJ), the New

Jersey State Police, Former Illinois Governor Ryan’s Commission on Capital Punishment, and North

Carolina’s Actual Innocence Commission.

Here we offer the briefest summaries of those approaches and a

comparison among them.

See e.g., State v. Harden, 175 Conn. 315 (1978); Commonwealth v. Ashley, 427 Mass. 620 (1998); State v. Mann, 56 P. 3d 212

(Kan. 2002); State v. Pierce, 330 N.J. Super. 479 (2001).

See e.g., State v. Cromedy, 158 N.J. 112 (1999).

See e.g., State v. Chatman, 109 A112. 275 (1973), cert. denied, 414 U.S. 1010 (1973); State v. Osorio, 187 Ariz. 579 (1996);

State v. Taft, 57 Conn. 19 (2000); Young v. State, 226 Ga. 640 (1997).

See e.g., McLean v. People, 172 Colo. 338 (1970); Riley v. State, 268 Ga. 640 (1997); State v. Jones, 273 S.C. 723 (1979)), or

the availability of an alibi (See e.g., State v. Valencia, 118 Ariz. 136 (1977); State v. Sloan, 575 S.W. 2d 836 (Mo. App. 1978).

See e.g., Taylor v. State, 157 Ga. App. 212 (1981); Gunning v. State, 347 Md. 332 (1997).

See generally RANDOLPH JONAKAIT, THE AMERICAN JURY SYSTEM 202-15, 290-94 (2003).

See CUTLER, supra, note 16, at 163-68.

See generally David L. Faigman, et. al., SCIENCE IN THE LAW: SOCIAL SCIENCE ISSUES (2002).

See Deborah Bartolomey, Cross-Racial Identification Testimony and What Not to Do About It: A Comment on the Cross-Racial

Jury Charge and Cross-Racial Expert Identification Testimony, 7 P

SYCH. PUB. POL’Y. & L. 247 (2001).

This view was expressed by one sitting judge at the Criminal Justice Section’s Spring 2004 Council Meeting at which this

Report and its associated recommendations were discussed.

See STEVEN FRIEDLAND, ET. AL., EVIDENCE LAW AND PRACTICE (2000)(discussing judicial notice).

See Christian A. Meissner & John Brigham, Thirty Years of Investigating Own-Race Bias in Memory for Faces, 7 PSYCH., PUB.

POLICY, & L. 3, 25 (2001) (“cautionary jury instructions may have some potential…assuming that they contain accurate

information…”) (summarizing research).

The summary of these reports in this section is drawn from reviewing the following sources: CUTLER, supra note 19, at 45-47,

56-57; DOJ-Suggested Standards for Pretrial Identifications 376-83; The JusticeDepartment Guidelines: An Incomplete Attempt

to Remedy Police Contamination, reprinted in

WRONGFUL CONVICTIONS: A CALL TO ACTION 379, 379-83 (The Criminal Justice

Institute of Harvard Law School, April 19-20, 2002); Attorney General Guidelines for Preparing and Coinducting Photo and Live

Lineup Identification Procedures, reprinted in

WRONGFUL CONVICTIONS: A CALL TO ACTION, supra, at 387-93; Ryan Commission

Report; Saks, et al., Model Act, supra note 23; SB 472 and Edwin Colfax, Status of Action on Recommendations of the Illinois

Goivernor’s Commission on Capital Punishment, www.northwestern.edu/depts./clinics/wrongful/documents/GCEStatus.htm

; and

North Carolina Actual Innocence Commission Recommendations for Eyewitness Identification.

Three of these four organization’s reports mandate double-blind lineups, with the fourth (DOJ)

acknowledging that double-blind is the best practice. These same three reports mandate sequential lineups,

with DOJ acknowledging their likely advantages but questioning their practicability absent field studies. The

Illinois state legislature, as noted above, rejected the Ryan Commission’s mandating of sequential

procedures, instead adopting a pilot study requiring three police districts, each in police departments in

municipalities of various sizes, to use sequential procedures and to evaluate their effectiveness and

practicability using mechanisms “consistent with the most objective scientific research methodology.” This

Council recommends a conservative approach similar to that adopted by Illinois. All these reports mandate a

specific minimum number of lineup or photospread foils, but these numbers, while minima and not maxima,

are still smaller than the best practices suggested by the science. However, rather than specify a precise

number, and given resource concerns, this Council has simply recommended embracing the principle that

there should, where practicable, be a sufficient number of foils to minimize the risk of error by guessing, an

approach that makes larger numbers of foils aspirational, but not mandatory, and that allows for local

variation and change as the teachings of science improve. Most of the remaining recommendations by this

Council concerning lineup and photospread procedure are largely inspired by similar variations adopted in

one or another of these reports. The best practices recommended in this Report – including blind lineups,

experimental use of sequential methods, enhanced number of foils, expert testimony, and special jury

instructions -- are fully supported by the scientific data and will go far toward improving identification

procedure accuracy.

Respectfully submitted,

Norman Maleng, Chair, Criminal Justice Section, August 2004

GENERAL INFORMATION FORM

1. Summary of Recommendation

This recommendation on eyewitness testimony seeks to increase the chances of convicting the guilty

while reducing the risks of convicting the innocent by reforming eyewitness identification procedures,

such as lineups and photospreads, to improve their likely accuracy. The primary components of the

recommendation are that police and prosecutors should draft detailed guidelines to improve the

accuracy of eyewitness identification procedures; that those guidelines should at least address the

topics and reflect the teachings of the ABA Statement of Best Practices for Promoting the Accuracy of

Eyewitness Identification Procedures; and that police and prosecutors should receive periodic training

in these procedures and create internal mechanisms for updating them. The recommendation also states

that, where appropriate in an individual case, courts should: (1) have the discretion to allow properly

qualified experts to testify on the factors affecting eyewitness accuracy and, (2) when there has been a

pretrial identification of the defendant, and identity is a central issue in a case tried before a jury,

consider exercising their discretion to use a specific instruction, tailored to the needs of the individual

case, explaining the factors to be considered in gauging lineup and photospread accuracy.

2. Approved by Submitting Entity.

This recommendation was approved by the Criminal Justice Section Council at its April 17-18, 2004

meeting.

3. Similar Recommendations Submitted Previously.

This recommendation has not previously been submitted to the House of Delegates or the Board of

Governors.

4. Relevant Existing ABA Policies and Affect on These Policies.

There are no relevant existing ABA Policies.

5. Urgency Requiring Action at this Meeting

The problem of wrongful convictions has recently received widespread attention as numerous

defendants have been exonerated after spending years in prison, while the real culprits have gone free.

Public pressure and pressure within the legal profession for quick and effective improvements in our

system of justice is intense. States and localities throughout the nation are considering a variety of

reforms. If the ABA does not act now, it will lose the opportunity to influence this national debate in a

positive way. This urgency is greatest in the case of eyewitness misidentification, which is the single

largest contributor to mistaken convictions.

6. Status of Congressional Legislation (If applicable).

No legislation is currently pending.

7. Cost to the Association.

The recommendation’s adoption would not result in direct costs to the Association. The only

anticipated costs would be indirect costs that might be attributable to lobbying to have the

recommendation adopted or implemented at the state and federal levels. These indirect costs cannot be

estimated, but should be negligible since lobbying efforts would be conducted by existing staff

members who already are budgeted to lobby Association policies.

8. Disclosure of Interest (If Applicable).

No known conflict of interest exists.

9. Referrals.

Concurrently with submission of this report to the ABA Policy Administration Office for calendaring

on the August 2004 House of Delegates agenda, it is being circulated to the following:

Sections, Divisions and Forums:

All Sections and Divisions

10. Contact Person (Prior to 2004 Annual Meeting).

Prof. Andrew Taslitz

Howard University School of Law

2900 Van Ness St., NW

Washington, DC 20008

Phone: (202) 806-8029

E-Mail: [email protected]

11. Contact Persons (Who will present the report to the House).

Neal R. Sonnett Stephen Saltzburg

Law Offices of Neal R. Sonnett George Washington University

One Biscayne Tower School of Law

Two South Biscayne Blvd. Suite 2 720 20

Street, NW - Room B-303F

Miami, Florida 33131 Washington, DC 20006

Phone: (305) 358-2000 Phone: (202) 994-7089

FAX: (305) 358-1233 FAX: (202) 994-7143

E-Mail: [email protected] E-Mail: [email protected]