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Overview

The following scene plays out in courtrooms around the world: from the witness box, an eyewitness is asked to look around the courtroom and indicate whether they see the person who committed the crime. The witness says she does, then outstretches her arm and points to the defendant. She is unequivocal, “That’s the man. I’ll never forget his face.” Although the witness in this scene is absolutely certain that her identification of the defendant is accurate, a critical question remains: Does it also mean that she was right? Eyewitness researchers have studied this exact question for decades and have now identified many factors that influence both a witness’ accuracy and confidence in their identification of the suspect. This research paper will present the varying types of research methodologies that are conducted in the field of eyewitness identification, followed by a review of law enforcement procedures, known as system variables, that are utilized to secure the identification of police suspects and that have a direct impact on eyewitness accuracy and testimony: sequential lineup presentation, double-blind lineup administration, prelineup instructions, post-identification feedback, show-ups, the presentation of a suspect in multiple procedures, and co-witness contamination. Each identification procedure carries with it potential consequences (positive and negative) for an investigation and these will be discussed in turn.

Introduction To Eyewitness Research

In 1985, Kirk Bloodsworth was identified by five separate eyewitnesses in the murder investigation of a 9-year-old girl. Mr. Bloodsworth, a veteran with no prior criminal record, was swiftly convicted at trial and sentenced to death. After serving 8 years in prison, DNA testing on the forensic evidence in the case revealed that Mr. Bloodsworth was in fact innocent; all five eyewitnesses had been wrong. Kirk Bloodsworth’s case was the first of 18 death penalty DNA exonerations in the United States, and it affirmed the harsh truth that eyewitness evidence is not infallible. In fact, an analysis of the more than 300 DNA exonerations in the United States reveals that mistaken eyewitness testimony played a role approximately 75 % of the time, making it the leading contributing factor of wrongful convictions. And like Kirk Bloodsworth’s story where five eyewitnesses erroneously testified that he was the perpetrator, 35 % of the eyewitness exoneration cases had more than one eyewitness mistakenly identify the defendant at trial.

Although DNA exonerations show incontrovertible evidence of eyewitness error, they are only a small fraction of all identification cases, as it is rare to have DNA evidence in a typical eyewitness case. Therefore, eyewitness researchers turn to other sources of information, including archival and field studies, to help determine if eyewitness errors are common or rare occurrences in actual criminal investigations. In archival studies, police files from closed eyewitness cases are examined and the witnesses’ identification decision from viewing a live or photo lineup are recorded. Archival research reveals a consistent and alarming pattern: approximately 20 % of all witnesses who view a lineup make a mistake and choose a lineup filler – one of the stand-ins who is known to be innocent of the crime. This statistic has also been replicated in field studies, where researchers gather data prospectively in ongoing criminal investigations.

Although the general public may be surprised by the high rate of identification errors in real cases, eyewitness researchers are not. Hundreds of eyewitness laboratory studies have also shown that nearly one in five identification decisions is an incorrect choice. Not only do the experimental laboratory studies confirm the actual data, but they also provide us with vital information that cannot be learned from actual cases and they allow us to make cause and effect conclusions about how identification procedures influence eyewitness accuracy. The accumulation of laboratory data over the last three decades has allowed eyewitness researchers to be in the position to make specific policy recommendations to law enforcement and legislators on how to increase the reliability of eyewitness testimony presented in court. To be sure, the “best practice” recommendations described in this research paper have not been universally or equally embraced, but there has been a significant and enduring impact for those jurisdictions that have made the improvements to their identification practices.

Over a period of decades, researchers have established that when we experience an important event, we do not simply record it in our memory as a video recorder would. The situation is much more complex and most theoretical analyses of the memory process divide it into three major stages: encoding/acquisition, retention, and retrieval. First, the event is perceived by a witness and information is entered into the memory system. Next, some time passes before a witness tries to remember the event. Finally, the witness tries to retrieve the stored information. Psychologists who conduct research on eyewitness memory study and attempt to identify the factors that play a role in each of the three stages. In 1978, Professor Gary Wells, the leading researcher in the field of eyewitness identification, published an article that continues to guide the way in which eyewitness research is discussed and conducted. In that article, he introduced the terms “estimator and system variables” to refer to factors that typically relate to the encoding, retention, and retrieval stages of memory.

As it relates to law enforcement, research has shown that the procedures and practices that police use during the memory retrieval process can influence the reliability of an eyewitness identification and the witness’ subsequent testimony. Examples of police procedures or system variables that can affect witness reliability include pre-identification instructions, the type of identification procedure administered (e.g., show-up, simultaneous lineup, sequential lineup), whether the identification was conducted using a double-blind administrator, and the type of post-event information provided to a witness after their identification decision, to name a few. Each of the system variables listed above has received consideration in the eyewitness research community and will be reviewed below. Without question, however, two topics have received more attention and caused more controversy than the others combined: double-blind administration and sequential lineups.

Double-Blind Administration

At its core, the police lineup is akin to a scientific experiment, where a police officer tests the hypothesis that the suspect is the perpetrator. And thus, many of the principles that apply to conducting a research experiment similarly apply to the police lineup. Arguably the most important principle in this analogy is double-blind administration, where the person who is conducting the experiment does not know the “correct” answer and thus cannot consciously or unconsciously influence the participant or the outcome.

The impact of lineup administrator knowledge on witness decisions has been tested in laboratory settings and the results are consistent with the vast body of research on double-blind testing. One example is a study by Greathouse and Kovera (2009) which used witness-administrator pairs to test the hypothesis that an administrator could subtly influence the outcome of the procedure if they were aware who the suspect was. Administrators were given information about the case and told that they would receive a cash bonus if the witness selected the suspect, who was actually innocent of the crime. Half were then given the identity of the suspect. In this, non-blind, condition, 21 % of witnesses chose the innocent suspect, whereas only 9 % chose him in the double-blind condition. Greathouse and Kovera also surreptitiously video-recorded the interaction between the witness and the administrator and showed that even though the administrators believed they had not influenced the witnesses, their verbal and nonverbal behaviors suggested otherwise and were evident to those watching the videotape of the interaction.

As it pertains to police lineups, double-blind administration requires that the person who shows the lineup to a witness cannot know which person is the suspect and which are the fillers. This procedure eliminates the possibility that the detective hinted to the witness (consciously or not) which person to choose. This is a significant departure from the way in which law enforcement conduct lineup procedures and, not surprisingly, this recommendation has been met with resistance by many law enforcement agencies and prosecutors across the United States. A common (mis)interpretation of this recommendation is that detectives are being accused of deliberately leading witnesses and influencing the outcome of lineups. Although it is possible for deliberate influence to occur, eyewitness researchers believe this is rare. Instead, what is more likely to occur is the transmission of unconscious cues, such as nodding and smiling, when a witness is making their decision. The collective experience of many researchers is that after speaking with law enforcement and policy makers and educating them on the science and logic behind the double-blind administration recommendation, these groups are significantly more likely to embrace the reform. In addition to the International Association of Chiefs of Police (IACP) recommending double-blind administration, some states (CT, NC, TX) have changed their laws and now require that officers conducting identification procedures not know when the witness is viewing the suspect.

To be certain, there are, on the surface, reasonable objections to double-blind administration, including concerns regarding the additional cost of utilizing a separate person unfamiliar with the case or the logistics for smaller police departments who may not be able to find an officer who is not familiar with the case. In response to the latter concern, eyewitness researchers have recommended conducting the lineup in a “blinded” manner, where the officer is unable to see which photograph a witness is viewing at any particular time. This is typically done using the “folder shuffle method” where individual photographs are placed into unmarked folders. The folders are then shuffled, rendering the lineup administrator unaware of which lineup member is in each folder. The folders are then handed to the witness, one at a time, following the sequential procedure described in the next section. Blinded administration can also be achieved by using computer software to present the images in a random order and having the lineup administrator unable to see the screen. In the years to come, it is likely that more and more departments across the country will begin testing and using these methods.

Sequential Lineup Presentation

Perhaps equally controversial as the subject of double-blind administration is sequential lineup presentation. In sequential lineups, a witness views the suspect and fillers one at a time and makes a judgment about each person before the next is shown. In simultaneous or traditional lineups, the suspect and lineup fillers are presented at the same time and the eyewitness identifies which (if any) is the perpetrator. More than 20 years of laboratory research indicates that sequential lineups cut the rate of false identifications in half when compared to the traditional simultaneous lineup method (Steblay et al. 2011) and thus sequential lineups have become a recommended “best practice” (see Wells et al. 1998).

In addition to the results from laboratory studies, researchers have also compared (double-blind) simultaneous and (double-blind) sequential lineups using actual eyewitnesses to real crimes in ongoing criminal investigations. In a study sponsored by the American Judicature Society, Wells et al. (2011) found that sequential lineups produce fewer mistaken identification decisions than lineup procedures that present the photographs simultaneously. The study found that double-blind sequential lineups (compared to double-blind simultaneous lineups) as administered by police departments in four states across the country resulted in the same number of suspect identifications (27.3 % for sequential and 25.5 % for simultaneous) and fewer known-innocent filler identifications (12.2 % for sequential and 18.1 % for simultaneous).

One of the most notable results from the field study was that witnesses in these actual criminal cases who made positive identifications (“yes, that is the person I saw commit the crime”) from a simultaneous lineup made an identification error 42 % of the time. That is, four out of every ten positive identifications that were obtained from double-blind simultaneous lineups were mistaken identifications of innocent lineup fillers. Even with the double-blind sequential procedure, three of every ten identifications were of an innocent filler. Thus, even when best practices are followed, identification errors are not entirely eliminated and witnesses can still be unreliable.

The dominant explanation for the difference in errors between simultaneous and sequential lineups is that witnesses who view simultaneous lineups – and do not immediately recognize anyone – are more likely to engage in a relative judgment process, whereby they compare the lineup members and choose the one who most closely resembles their memory for the perpetrator. Witnesses who view the images one at a time, however, are less able to engage in this comparison process and therefore are more likely to make an identification based on their memory rather than a combination of their memory and choosing the person who is the best option out of those presented.

The controversy over the use of sequential lineups arises from the finding that accurate suspect identifications are higher with simultaneous lineups than with sequential, and thus there is a concern that guilty suspects might “get away” if witnesses do not identify them. The concerns about sequential lineups were recently thoroughly vetted in several articles in the journal “Perspectives on Psychological Science,” and the interested reader is directed to those articles for the full set of arguments. In summary, researchers who are cautious about recommending sequential lineups focus on the loss of correct suspect identifications (Clark 2012), and those who recommend sequential lineups ask “Why would a witness be unable to identify the suspect unless all of the lineup members were presented at the same time?” (Wells et al. 2012). In other words, if the witness has a great memory of the perpetrator and truly recognizes him, then she should be able to do so regardless if the lineup members are presented simultaneously or sequentially. Further, any loss in suspect identifications might be characterized as a loss of “lucky guesses” that resulted merely from relative judgments in the simultaneous procedure.

To date, there are several states and many jurisdictions that require the use of sequential lineup presentation. Thus, it appears that these groups who have considered the data and the “controversy” have been unmoved by the “loss of suspect identifications” argument made by those who question whether sequential lineups are superior to the simultaneous technique. Whether additional jurisdictions who are considering reform will be persuaded by these arguments is presently unknown. Whether new identification procedures can be developed to further reduce errors will likely be the subject of research over the next few decades. Until then, it is expected that more and more jurisdictions across the United States will adopt the sequential lineup procedure.

Pre-identification Instructions

Maybe the least contentious of all lineup reforms is the recommendation that witnesses be warned, prior to viewing a lineup, that the actual perpetrator may or may not be present in the procedure they are about to view.

Pre-lineup instructions have been studied by eyewitness researchers since the early 1980s (Malpass and Devine 1981). In this research, participants typically view a staged crime event and are then randomly assigned to an instructions condition. “Unbiased” instructions include wording to the effect that the actual perpetrator “may or may not be present,” whereas biased (or standard) instructions provide no such warning. In the first study on this topic, Malpass and Devine found that witnesses who received biased instructions were 45 % more likely to make a false identification of an innocent person than were participants who were not told that the perpetrator may not be included in the array.

In 1997, Steblay published a meta-analytic review of the instruction bias literature and found, overall, a 25 % increase in eyewitness accuracy when unbiased instructions were provided to witnesses. Interestingly, Steblay also found that the mere failure to provide witnesses with a “may or may not be present” instruction had similar detrimental effects on accuracy as when witnesses were given some pressure to make a positive identification. Thus, failing to provide the warning is considered suggestive because it insinuates that the true perpetrator is in the lineup procedure. For these reasons, the National Institute of Justice Technical Working Group for Eyewitness Evidence (1999) included pre-lineup instructions in their research report titled Eyewitness Evidence: A Guide for Law Enforcement. In addition to discussing other eyewitness identification best practices, this report specifically recommended giving cautionary instructions to reduce the possibility that a witness would choose someone from the lineup merely because they expect that the police must have caught the perpetrator; otherwise, they would not be viewing an array. Some jurisdictions have gone further than the “may or may not be present” warning and now inform witnesses, among other things, that the investigation will continue even if the witness does not make an identification. These pre-lineup recommendations have been met with little resistance by law enforcement and others, and thus it is likely that this reform will continue long into the future.

Witness Confidence And Post-Identification Feedback

Although there is a presumption among many actors in the legal system that there is a significant and positive confidence-accuracy relationship, serious questions about whether that is true have been raised by researchers within the law and psychology community. Decades of research show that there is only a small to moderate relationship between the accuracy of an eyewitness’ identification and their confidence in that identification and that this relationship can be significantly affected by post-identification factors, making confidence highly malleable.

Confidence malleability refers to changes in a witness’ confidence over time, generally as a result of events that take place after the identification. By the time a witness takes the stand at trial, their expression of confidence in their identification can result from multiple sources, including the strength of their memory of the person they saw but also a variety of system variables, such as learning that the person they identified has been charged with the crime or that other witnesses also identified the same person. For this reason, it is recommended that law enforcement ask witnesses, immediately after they make a positive identification, to state how confident they are in their decision. A statement of certainty at that point in time, unaffected by the passage of time and external influences, can be a more reliable indicator of accuracy than a statement taken months or years after the identification.

In their pioneering research on the topic of confidence malleability, Wells and Bradfield (1998) found that witnesses who were told that they had made a correct decision (“Good, you identified the suspect”) were more confident than witnesses who were given no feedback. What was, and remains to be, surprising about this research, however, is that feedback has significant effects on a witness’ recollection of other aspects of the event, including exaggerations in how much attention the witness paid to the perpetrator during the crime, how good a view they had, and so on. The results of this groundbreaking study have been replicated many times in both research labs (Bradfield-Douglass and Steblay 2006) and with actual witnesses in ongoing criminal investigations (Wright and Skagerberg 2007).

One of the explanations that have been proposed to explain the post-identification feedback effect, and its strong and pervasive influence on eyewitness confidence, is the theory of cognitive dissonance (Festinger 1957). In essence, this theory states that people are in a state of discomfort when they have inconsistent or contradictory beliefs, or when they have beliefs and behaviors that are inconsistent. As it relates to eyewitness identification, if a witness is confident in their identification, then they subsequently reason that they must have had a good opportunity to see the perpetrator. How else would they be able to “get it right”? A powerful example of cognitive dissonance is the DNA exoneration case of Dean Cage from Illinois. After Cage was exonerated in 2008, the victim refused to believe the accuracy of the DNA results and held on to her belief that Cage was guilty. Thus, cognitive dissonance was so powerful in that case that it was easier for the witness to believe that the DNA testing was flawed than to accept that she had made an error and identified an innocent person. Only after she was presented with independent results of the DNA testing did she come to accept that Cage was innocent and was not the man who had raped her in 1994.

The results of laboratory and field studies on post-identification feedback have led to the recommendation that law enforcement obtain a statement of witness confidence before any feedback about their decision is provided. Even then, it is not recommended that law enforcement tell witnesses that they were correct in their identification because of the pervasive influence feedback has on other memory-related judgments (attention, view, etc.) which could ultimately have an influence on a witness’ credibility during their trial testimony.

Future research on post-identification feedback will likely examine whether there are ways to substantially mitigate the effect and protect the reliability of a witness’ testimony while at the same time recognizing that actual witnesses will eventually receive information that the person they identified was charged with the crime and that the witness is needed to testify at trial. Steps have been made in this direction and the current recommendation of using double-blind administration – where the administrator cannot give meaningful feedback – appears to have some impact (Dysart et al. 2012).

Showups

The showup is an identification procedure in which law enforcement shows a single suspect – unaccompanied by fillers – to the eyewitness and asks them to decide whether the suspect is the perpetrator. Showups are generally conducted soon after the crime, and the suspect may either be viewed live (a “field” showup), the most common option, or the eyewitness may be shown a single photograph.

By definition, the showup is a suggestive procedure because only one person is presented to a witness and thus the identity of the police suspect is obvious. Showups can never be conducted double-blind; thus administrator bias is necessarily a concern with showups. Further increasing suggestiveness in police investigations is the fact that the suspect may also be handcuffed or seated in the back of a police car when the witness views him. Despite these reliability issues, showups are routinely used by law enforcement (between 30 % and 77 % of all identifications procedures in various areas of the country are showups, Dysart and Lindsay 2007) and largely accepted by the courts.

The research on showups is limited in contrast to lineups and much of the existing literature specifically compares accuracy between showups and lineups. A 2003 meta-analysis synthesized this research (Steblay et al. 2003) and highlighted a specific danger unique to showups: 100 % of identifications made from showups that contain an innocent suspect are false identifications. In lineups, however, filler identifications represent a measure of protection to a suspect. That is, if a witness was merely guessing in a lineup, they would have a one in six chance of guessing the suspect (in a six-person array). Innocent suspects presented in showups have little defense against a witness with a weak memory and a willingness to choose and are more likely to be falsely identified than if they were presented in an unbiased six-person array.

From a policy standpoint, there are two main reasons that showups continue to be used and that their use is likely to continue. The first reason is related to public safety. If police are not permitted to conduct showups, and yet have too little evidence to arrest a suspect, the guilty party may be set free to commit further criminal acts. The second reason is to allow innocent suspects to be cleared without undue delay. If the police have detained an innocent person, the sooner they present him to the eyewitness, the sooner he can be released, assuming the eyewitness correctly rejects him as the perpetrator.

Procedural issues and controversies regarding lineups have largely dominated the discussion about best practices in identification procedures, but, given the frequency with which showups are used by law enforcement, it is time for research and policy makers to pay greater attention to the showup procedure. A greater understanding is needed not only of how factors associated with reduced lineup accuracy affect showups but also how factors unique to the showup may affect the ability of eyewitnesses to make accurate identification decisions.

Co-Witness Discussion

Co-witness discussion occurs when multiple witnesses to a crime speak with one another about what they viewed or heard. One of the reasons why co-witness discussion is of concern to researchers is that witnesses can incorporate information learned from other witnesses into their memory of the perpetrator and the event. As a result, the National Institute of Justice (1999) recommends that law enforcement, as part of their routine procedures, separate witness when they are being interviewed and when they view an identification procedure.

A particularly illustrative study on co-witness contamination was conducted by Hope et al. (2008), wherein participants viewed a videotaped event in pairs and then either discussed the event with the other person or answered questions about the video on their own with no discussion. The catch in the study was that only one member of each pair saw a theft take place because the event was filmed with two cameras from different angles and only one camera caught the critical theft. For participants in the study who did not see a theft take place, no one in the “no discussion” group reported seeing the theft but 50 % of those who had discussed the video with their partner reported a theft they in fact did not see. These witnesses were susceptible to misinformation from their co-witness and, as a consequence, produced less accurate recall accounts than participants who did not interact with another witness.

In another study, Zajac and Henderson (2009) showed that co-witness contamination can affect not only description accuracy but identification accuracy as well. In this study, research participants were paired with a research confederate whom they believed was just another participant in the study. Together, they viewed a video clip of a staged theft. Then, half of the participants were misinformed by the confederate that a target person in the video had blue eyes when in fact they were brown. Individually, participants then described the accomplice and viewed a lineup where the target person was not shown. In fact, all of the lineup members had blue eyes. Participants who had received the blue-eyed misinformation were several times more likely to describe the target as having blue eyes and twice as likely to falsely identify someone from the lineup.

In summary, the research literature on co-witness discussion/contamination shows that merely having a conversation with another person about an event can result in substantial changes to a person’s memory and accuracy of that event. And thus, the recommendation that witnesses be separated and instructed not to speak with other witnesses is a critical element in assuring that the evidence a witness testifies to is from their own perceptions and has not been a result of contamination.

Multiple Presentations Of The Same Suspect

The final topic that deserves attention within a discussion of system variables is the practice that law enforcement have of showing the same suspect to a witness in more than one identification procedure, such as mug book or a showup followed by a lineup. When this situation arises, it is important to consider the potential effects on reliability of having previously viewed or selected the suspect.

In research spanning three decades, investigators have examined the effects of repeated viewing of the same suspect and have identified two main effects: commitment and unconscious transference. Commitment occurs when a person who is selected from an earlier identification procedure is selected a second time in a subsequent procedure, regardless of if he or she is the correct person. Unconscious transference, on the other hand, occurs when an innocent person is merely viewed by a witness in one context and is only later selected as the target from a second procedure. The phenomenon of unconscious transference has likely plagued most people at one time or another as evidenced in the question “where do I know that face?” Witnesses that view a person in multiple identification procedures or in multiple contexts (e.g., in a photo array and then in court) are faced with a similar question. The correct answer is for the witness to say “I saw that face from several different contexts,” but the erroneous conclusion is that the face is familiar only because it is the face of the perpetrator. The concern is that this sense of familiarity on the part of the witness may lead to an increased feeling of confidence in subsequent identification procedures. In fact, a metaanalysis on transference from viewing mug shot photographs confirms that witnesses are more likely to pick from a lineup a person previously viewed (Deffenbacher et al. 2006). Further, the 2006 meta-analysis confirmed that a person who has been identified in an earlier procedure is considerably more likely to be identified in a subsequent procedure.

Although it may seem obvious that a suspect should only be placed in one law enforcement identification procedure, the data from the United States DNA exoneration cases indicates that multiple identification procedures were used in a surprising number of those cases. It is also a relatively common practice for law enforcement to conduct a showup then a lineup, or a photo lineup followed by a live lineup procedure. Although this practice is common, research is very clear that one procedure can influence the reliability of the next and subsequent identification procedures should be viewed with great caution. Without a doubt, the practice of displaying multiple identification procedures to the same witness with the same suspect will be a subject of identification reform in the very near future.

Conclusions

Eyewitness errors are devastating. When an eyewitness makes an honest mistake and chooses an innocent suspect from an identification procedure, not only does that person suffer but the guilty person remains free, at liberty to commit additional crimes. However, research has shown that using modified techniques, such as the sequential double-blind lineup with pre-lineup warnings, will lead to fewer innocent people being convicted of crimes they did not commit. It is critical for eyewitness errors to be prevented in an investigation rather than litigated and disputed in court because both lab research and real-life cases have repeatedly shown that juries (and judges) are not able to distinguish between accurate and inaccurate witnesses. Instead, triers of fact are too often persuaded merely by a witness who appears confident but nonetheless has made a devastating error. Changes in law enforcement procedures with respect to eyewitness identifications, whether by choice or legislative mandate, are taking hold across the country with more reforms and changes to come.

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