CRIMINAL LAW UPDATE: Eyewitness Identification
September 14, 2011
Doug Plank, Senior Attorney, National Legal Research Group
One of the most significant consequences of the recent use of DNA testing in the criminal justice system has been the growing recognition that eyewitness identification testimony is simply not as reliable as it was previously thought to be. In fact, now that DNA test results have exonerated hundreds of imprisoned convicts—most of whom were convicted on the strength of eyewitness identification from presumably reliable citizens—it has become apparent that traditional means of obtaining eyewitness identification have been too suggestive and too likely to create errors. This fact has led some courts to question the propriety of investigative techniques that have long been approved by the U.S. Supreme Court and to adopt new rules with regard to both identification procedures utilized by the police and the admission of eyewitness identification testimony at trial.
In accordance with this trend, the New Jersey Supreme Court, troubled by the lack of reliability of eyewitness identification evidence, has just announced guidelines that will make it easier for criminal defendants to challenge such evidence. In State v. Henderson, No. 062218, A-8 Sept. Term 2008, 2011 WL 3715028 (N.J. Aug. 24, 2011), a unanimous decision, the court found that a "vast body of scientific research about human memory" has emerged in recent years that "casts doubt on some commonly held views relating to memory" and "calls into question the vitality of the current legal framework for analyzing the reliability of eyewitness identifications," id. at *1, as established in Manson v. Brathwaite, 432 U.S. 98 (1977), and State v. Madison, 109 N.J. 223, 536 A.2d 254 (1988).
The case arose from the identification by an eyewitness, James Womble, of the defendant, Larry Henderson, as the accomplice to a murder, about which Womble did not speak to the police until they approached him 10 days later. According to Womble's story, he had been drinking wine and champagne and smoking crack cocaine with Rodney Harper in an apartment, when two men, only one of whom was known to Womble, barged in and tried to collect $160 that Harper owed. The second man—a stranger to Womble—pointed a gun at him and told him not to move because he was not involved in the debt. Womble later stated that he "got a look at" the stranger, but not "a real good look." 2011 WL 3715028, at *3. The first man eventually shot Harper in another room, and as the two intruders left the apartment, they threatened Womble with harm if he told the police anything.
When approached by police during their investigation of the murder, Womble initially denied having been present during the murder and said that he had heard the gunshot coming from outside the apartment and that he had gone outside to find Harper, who was slumped over in his car. Womble later admitted that he had lied to police, claiming that he had been threatened if he cooperated with them. He then viewed a photographic array of suspects and identified Henderson as the man who had assisted the shooter and pointed a gun at him. When Henderson was arrested on the basis of this identification, he acknowledged that he had gone to the apartment at the time of the shooting but insisted that he had waited in the hallway and had not participated in the shooting.
The New Jersey Supreme Court closely examined the circumstances of the photographic array, the viewing of which, according to police guidelines, was initially conducted by an officer who had not previously been involved in the murder investigation. The array consisted of seven "filler" photographs and one photograph of Henderson, and all eight photographs depicted headshots of African-American men between the ages of 28 and 35, with short hair, goatees, and, according to the officer, similar facial features. Womble quickly eliminated five of the photographs, then reviewed the remaining three, discounted one more, and said he "wasn't 100 percent sure of the final two pictures." Id. at *5. After some time had passed, and after the two investigating officers had come into the room to assure Womble that he had no reason to be afraid because the police would protect him, Womble finally identified Henderson from his photograph as the person who had assisted the shooter. At the subsequent hearing, held pursuant to United States v. Wade, 388 U.S. 218 (1967), Womble did not recant his identification but testified that he felt as though the officer had been "nudging" him to choose Henderson's photograph and "that there was pressure" to make a choice. 2011 WL 3715028, at *5. Then, applying the two-part test from Manson and Madison—which requires courts to first determine whether police identification procedures were impermissibly suggestive, and if so, to then weigh five reliability factors to decide whether the identification evidence is nonetheless admissible—the trial court concluded that there was nothing in the photograph identification procedure that was so suggestive as to result in a substantial likelihood of any misidentification.
Henderson was convicted of reckless manslaughter, largely on the basis of Womble's identification testimony at trial. On appeal, the appellate division decided that the photographic array procedure had been suggestive, and it remanded for a consideration of the five Manson/Madison factors for determining whether the identification was nevertheless reliable. The State appealed, and the New Jersey Supreme Court then ordered a remand for the establishment of a factual record that would be adequate to test the current validity of state law standards on the admissibility of eyewitness identification. The court directed the trial court to conduct a plenary hearing to consider whether the assumptions and other factors reflected in the two‑part Manson/Madison test, as well as the five factors outlined in those cases to determine reliability, remained valid and appropriate in light of recent scientific and other evidence.
A number of distinguished experts in psychology and law presented evidence at the remand hearing. Based on this evidence, the New Jersey Supreme Court determined that the record substantiated the conclusion that eyewitness misidentification was "the single greatest cause of wrongful convictions in this country." Id. at *9. The court noted that more than 75% of convictions overturned due to DNA evidence had involved eyewitness misidentification and that comprehensive studies had shown that eyewitnesses to crimes had made an alarming number of misidentifications in lineups and photographic arrays, selecting a "filler" (an innocent person presented along with a suspect) about one-fourth of the time. The court did not attribute this result to bad faith. Rather,
We accept that eyewitnesses generally act in good faith. Most misidentifications stem from the fact that human memory is malleable; they are not the result of malice. . . . [A]n array of variables can affect and dilute eyewitness memory.
Id. at *11. The court then examined the scientific evidence relating to memory, finding that the evidence showed that memory can be easily distorted by "system and estimator variables."
System variables are factors such as lineup procedures, which are within the control of the criminal justice system, and estimator variables are factors related to the witness, the perpetrator, or the event itself—such as distance, lighting, or stress—over which the legal system has no control. The court reviewed those variables in turn, first identifying eight system variables: blind administration, preidentification instructions, lineup construction, avoiding feedback and recording confidence, multiple viewings, simultaneous versus sequential lineups, composites, and showups. Based on the scientific evidence relating to these factors, the court concluded that (1) the failure to perform blind lineup procedures can increase the risk of misidentification; (2) the failure to give proper prelineup instructions can increase the likelihood of misidentification; (3) jurors should be told that poorly constructed or biased lineups can affect the reliability of an identification and enhance a witness's confidence; (4) feedback affects the reliability of an identification in that it can distort memory, create a false sense of confidence, and alter a witness's report of how he or she viewed an event; (5) law enforcement officials should attempt to shield witnesses from viewing suspects or fillers more than once; (6) there is insufficient authoritative evidence accepted by scientific experts for a court to make a finding in favor of either simultaneous or sequential lineups; (7) it could not make a finding on the effect the process of making a composite has on a witness; and (8) showups are inherently suggestive.
The court then examined the following estimator variables: stress, weapon focus, duration, distance and lighting, witness characteristics, characteristics of perpetrator, memory decay, race or other bias, the effect of private actors, and the speed of identification. With regard to these factors, the court concluded that (1) stress played a significant role in the reliability of eyewitness identification; (2) the presence of a visible weapon can affect the reliability of an identification and the accuracy of a witness's description of the perpetrator; (3) brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure, and witnesses consistently tend to overestimate short durations, particularly where much was going on or the event was particularly stressful; (4) greater distance between a witness and a perpetrator and poor lighting conditions can diminish the reliability of an identification; (5) a witness's age and level of intoxication can affect the reliability of an identification but a standard jury instruction questioning the reliability of identifications by all older eyewitnesses would not be appropriate for use in all cases; (6) disguises and changes in facial features can affect a witness's ability to remember and identify a perpetrator, and if facial features are altered between the time of the event and the identification procedure—if, for example, the culprit grows a beard—the accuracy of an identification may decrease; (7) delays between the commission of a crime and the time an identification is made can affect reliability; (8) a witness may have more difficulty making a cross-racial identification; and (9) witness memories can be altered when coeyewitnesses share information about what they observed.
The court then concluded that based on the scientific evidence, the Manson/Madison test does not adequately meet its stated goals, because it does not provide a sufficient measure for reliability of eyewitness testimony, it does not deter improper police practices, and it overstates the jury's innate ability to evaluate eyewitness testimony. The court announced a revised framework that will allow judges to consider all relevant factors that affect reliability in deciding whether an identification is admissible; that is not heavily weighted by factors that can be corrupted by suggestiveness; that promotes deterrence in a meaningful way; and that focuses on helping jurors both understand and evaluate the effects that various factors have on memory. According to the court, two principal changes to the current system are needed to accomplish that: First, when there is some actual evidence of suggestiveness, the revised framework should allow all relevant system and estimator variables to be explored and weighed at pretrial hearings; and second, courts should develop and use enhanced jury charges to help jurors evaluate eyewitness identification evidence.
The court thus held that the following procedure must be followed in every case involving eyewitness identification:
First, to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification. That evidence, in general, must be tied to a system—and not an estimator—variable.
Second, the State must then offer proof to show that the proffered eyewitness identification is reliable—accounting for system and estimator variables—subject to the following: the court can end the hearing at any time if it finds from the testimony that defendant's threshold allegation of suggestiveness is groundless.
Third, the ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification. To do so, a defendant can cross‑examine eyewitnesses and police officials and present witnesses and other relevant evidence linked to system and estimator variables.
Fourth, if after weighing the evidence presented a court finds from the totality of the circumstances that [the] defendant has demonstrated a very substantial likelihood of irreparable misidentification, the court should suppress the identification evidence. If the evidence is admitted, the court should provide appropriate, tailored jury instructions[.]
Id. at *45 (citations omitted) (footnote omitted).
Finally, the court determined that its ruling should not apply retroactively but should apply only to the case before it and to future cases.
Because of the influential nature of the New Jersey Supreme Court, it is expected that a number of state courts will follow its lead and develop new guidelines and procedures for the admission of eyewitness identification evidence. In addition, the U.S. Supreme Court recently announced that it will consider the question of the admissibility of eyewitness identification for the first time in over 30 years, in Perry v. New Hampshire, 131 S. Ct. 2932 (May 31, 2011) (No. 10-8974). That case involves the issue of whether the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as was held by the First Circuit Court of Appeals, or only when the suggestive circumstances were orchestrated by the police. Although a limited issue is before the Court in Perry, it is possible that the Court will use the case to take a comprehensive look at how courts should treat eyewitness identification testimony.