Eyewitness Identification

“Eyewitness Identification: California Law” TRIAL BAR NEWS

Journal of the Consumer Attorneys of San Diego (June/July 2006)


The first death row inmate to be exonerated by DNA evidence was Kirk Bloodsworth.  Bloodsworth, a U.S. Marine veteran, had never been in trouble with the law, but was convicted in 1984 of the rape and murder of a 9-year old girl and was sentenced to die in Maryland’s gas chamber.  Complicating matters, five witnesses had identified him out of a lineup claiming that he was the perpetrator. DNA tests exonerated Bloodsworth in 1993.  The evidence driving Bloodsworth’s conviction was mistaken eyewitness identification.

Mistaken eyewitness identification is not isolated to the State of Maryland it is nationwide problem.  In California, a jury convicted Herman Atkins in 1988 of robbery and rape.  He was sentenced to 45 years in prison.  He was exonerated after serving 11.5 years of his 45-year sentenced by DNA evidence.  Again, the driving factor at Atkins’ trial – mistaken eyewitness identification evidence.

According to the Innocence Project at the Cardozo School of Law, mistaken eyewitness identification is the primary cause of the conviction of innocent people in the United States.  The DNA exoneration cases, carefully tracked by the Innocence Project, show that approximately 75 percent of these convictions of innocent persons were cases of mistaken eyewitness identification.(See www.innocenceproject.org)

Thanks to efforts by NACDL, the National Legal Aid and Defender Associations and the Innocence Project focus has been on legislative reform nationwide to improve law enforcement’s eyewitness identification procedures.  Momentum has been building slowly for state legislative solutions to this problem.  Last month, California joined suit to propose eyewitness identification reform legislation.  The California Commission on the Fair Administration of Justice, established by the state legislature to study issues that can lead to wrongful convictions, convened to determine the extent that law enforcement agency’s eyewitness identifications have failed in the past.  (See Report and Recommendation Regarding Eyewitness Identification Procedure, (April 13, 2006) California Commission On the Fair Administration Of Justice).

The Commission, an 18-person panel, comprised of prosecutors, defense attorneys, law professors, a judge, a rabbi, and law enforcement officials, reviewed studies and reviews on wrongful convictions in other states and identified the causal factors that frequently recur in cases.  The Commission called on legislators to pass a bill requiring the attorney general’s office to convene a task force to develop guidelines for new procedures and training in eyewitness identification. The Commission does not have power to enforce new practices because local jurisdictions set their own policies but it is calling upon our state legislatures for uniformity within our California communities.  The Commission proposed significant changes in the use of eyewitness identification in California Courts. Specifically, the Commission identified issues regarding current lineup and show-up procedures and is urging 12 specific procedural reforms aimed at improving the accuracy of the current system.

Currently, the standard police practice is to ask witnesses to pick out suspects from lineups or from groups of half dozen photos, known as “six packs.”  The problem with this method is that the police officials in standard lineups or photo displays can inadvertently or deliberately communicate to witnesses whom they want the witness to select, thus, contaminating the process and the witness.  (See Report and Recommendation Regarding Eyewitness Identification Procedure, California Commission On the Fair Administration Of Justice (April 13, 2006.))  Once the witness sees the photo, later identification or testimony is tainted by the suggestive nature of the initial identification.

The Commission’s proposed methods were designed to minimize the risk of improperly influencing a crime victim or witnesses to identify an innocent person. Among them: Double-blind identification procedures.  The objective here is that the police officer displaying photos in a photo spread or operating a lineup is not aware of the identity of the actual suspect to avoid influencing the witness; Sequential Lineup.  The recommendation is that the witnesses be shown photographs of suspects one at a time rather than as a group so they do not choose the individual who looks most like the perpetrator – even if no one shown is the actual criminal; Specific instructions to witnesses that the suspect may or may not be in a photo spread, lineup or show-up and the investigation will not end due to a failure to make an identification at that moment; Police should avoid brining a single suspect back to the witness for identification; Police, prosecutors, judges, and defense attorneys all should receive special training in the problems of eyewitness identification; and Jury instructions should be re-evaluated based on current science.

However, these recommendations were not embraced by all members of the Commission. A partial dissent on sequential lineups was issued by California Attorney General Bill Lockyer and two district attorneys.  The prosecutors wrote,  “ The debate over the sequential lineups is not yet settled.  The sequential method appears to be particularly problematic in cases involving children and the elderly, cases involving cross-racial identifications, cases involving multiple perpetrators, and cases where a suspect has altered his or her appearance.”

The sequential line-up method remains an open debate due to a study released in Illinois last month that surprisingly questioned the sequential lineups reliability compared to the conventional simultaneous lineups in use today. (See Study Fuels Debate Over Police Lineups, New York Times (April 19, 2006)).

In addition, the three prosecutors dissented from a recommendation that the California jury instructions on eyewitness identifications be altered.  The Dissenters wrote “the drafting of criminal jury instructions has been delegated to the Judicial Council of California by the Chief Justice … instructions should be neutral, favoring neither party.”  Report and Recommendation Regarding Eyewitness Identification Procedure, (April 13, 2006) California Commission On the Fair Administration Of Justice.


The reforms are expected to reduce but not eliminate misidentification. The current mismatch between psychological research, police practices, and court standards allows defense counsel to attack both procedural problems and factors that can affect a witness.  Counsel can raise doubt to a misled witness who may be honest but mistaken due to flawed police work.  However, if a reform plan succeeds counsel may be faced with overwhelming task of defending an innocent client against an honestly mistaken witness who made an identification through scientifically validated procedures.  Nonetheless, it is time for a change in procedure.