Witness Misidentification
Freddricka Harris
CCJ 4360-001
Monekka Munroe

Misidentification can be defined as making a falsely or inaccurate identification. Witness can be defined as one who can give a firsthand account of something seen, heard, or experienced. (American Heritage Dictionary) When you put these two words together, you get witness misidentification which has been referred to as the single greatest cause of wrongful convictions nationwide, with nearly 75% of the convictions overturned through DNA testing. There have been 260 exonerations across the country based on forensic DNA testing with 3 out of 4 involving cases of eyewitness misidentification. (Innocence Project 1999)
In 1907 or 1908, Hugo Munsterberg published “On the Witness Stand”; he questioned the reliability of eyewitness identification. As recent as 30 or 40 years ago, the Supreme Court acknowledged that eyewitness identification is problematic and can lead to wrongful convictions. The Supreme Court instructed lower courts to determine the validity of eyewitness testimony based on irrelevant factors, like the certainty of the witness, the certainty you express in court during the trial has nothing to do with how certain you feel two days after the event when you pick a photograph out of a set or pick the suspect out of a lineup. It has been said that you become more certain over time. (The Confidential Resource September 15, 2010)
An eyewitness viewing a simultaneous lineup tends to make a judgment about which individual in the lineup looks most like the perpetrator relative to the other members of the lineup. This is particularly problematic when a lineup only contains innocent people. Research has shown that the effective use of fillers when composing a lineup can help combat the tendency for the relative judgment process to lead to the identification of an innocent suspect. First, ensuring that the suspect in the lineup does not stand out, or that the fillers resemble the witness’s prior description of the culprit at least as much as the suspect does, guards against the eyewitness choosing an innocent suspect simply because the suspect is the only lineup member that resembles the perpetrator.
There are many factors that can cause misidentification like lighting, stress, trauma, presence of a weapon, distance and race; these are known as estimator variables. The effect of stress on eyewitness recall is one of the most widely misunderstood of the factors commonly at play in a crime witness scenario. Studies have consistently shown that the presence of stress has a dramatically negative impact on the accuracy of eyewitness memory. The presence of a weapon has also been shown to diminish the accuracy of eyewitness recall, often referred to as the weapon-focus effect. Eyewitnesses recall the identity of a perpetrator less accurately when a weapon was present during the incident, the presence of a weapon draws a witness's visual focus away from other things, such as the perpetrator's face. Other factors have been observed to affect the reliability of eyewitness identification, the elderly and young children tend to recall faces less accurately, as compared to young adults. Race can be a challenging factor, being African American, you’re labeled as being black, but there is more to it than that, within the race, you have lighter skinned and darker skinned people, and for someone of another race trying to identify an African American, it can pose a problem. The race factor is one of the most-studied topics in this area it is called the cross-racial identification. A recent meta-analysis of 25 years of research shows a definitive, statistically significant "cross-race impairment," where members of any one race have a clear deficiency for accurately identifying members of another race. The effect appears to be true regardless of the races in question. Various hypotheses have been tested to explain this deficiency in identification accuracy, including any racial animosity on the part of the viewer, and exposure level to the other race in question. Racist attitudes have not been observed to have any effect on the impairment; exposure level has been observed to have a minute effect in some studies, yet the cross-race impairment itself has been observed to substantially overshadow all other variables, even when testing people who have been surrounded by members of the other race for their entire lives. With Caucasians, there can be an issue with hair, there is more than blonde, brunette, red and black, you have strawberry blonde, auburn and several others. Another variable is system variables, system variables can be controlled by the criminal justice system, they include but are not limited to, types of lineups, selection of filters, blind administration, communication, and any way witness memory is recorded.
In 1975 Gary Wells started studying how misidentification occurs; he has published more than 150 papers on the subject. He has a new study that was funded by a National Science Foundation grant that involves determining what happens when recognition fails a witness. One of the goals is to determine what leads to failure so misidentification can be reduced. Wells has a second study with two pilot programs that started in February and September of 2009 in Tucson, AZ and San Diego, CA. They were funded through private contributions and supported by organizations like the Innocence Project in NY and the American Judicature Society. There have been several police departments looking for better ways to display lineups based on Well’s research. (The Gazette November 30, 2009)
In 2005 the Illinois state legislature commissioned a pilot project to test reform measures recommended by social scientists to increase the accuracy and reliability of police identification procedures, the study was conducted by the Chicago Police Department. The Illinois study compared the traditional method of lineup presentation with the double blind method recommended by academics like Gary Wells. With the double blind method, the person presenting the lineup does not know which person/photo is the suspect. Researchers have also suggested that the manner in which photos or individuals chosen for a lineup are presented can also be key to the reliability of an identification. Specifically, leading researchers suggest that lineups should be conducted sequentially, rather than simultaneously. In other words, each member of a given lineup should be presented to a witness by himself, rather than showing a group of photos or individuals to a witness together. According to social scientists, use of this procedure will minimize the effects of the "relative judgment" process, by encouraging witnesses to compare each person individually to his or her independent memory of the identity of the perpetrator. According to researchers, use of a simultaneous procedure makes it more likely that witnesses will pick the person who merely looks the most like the perpetrator from the group, which introduces an acute danger when the actual perpetrator is not present in the lineup.
There have been criticism over the study; the critics claim that the results cannot be compared because one method was not double blind while the other was. The criticism ignores the fact that the mandate of Illinois legislature was to compare the two methods. According to research the study provides useful data that shows neither method used is superior to the other. In July 2007, there was a panel of psychologists that released a report examining the methodology and claims of the Illinois report. Other researchers examined the study and reported the study was infected with the fundamental flaw that had devastating consequences to its scientific merit that guaranteed most outcomes would be difficult or impossible to interpret. Their primary critique was an observed confounding of variables rendering it impossible to draw meaningful comparisons between the methods tested. (The Illinois Report Controversy n.d.)
In October 1999, the Department of Justice released a comprehensive guide for law enforcement on procedures for obtaining more accurate eyewitness evidence. However, there is no current national program or federal agency responsible for educating local departments about these reforms or in assisting with their practical implementation.
Witness misidentification can lead to wrongful convictions in several ways. First, when an eyewitness has initially misidentified a perpetrator of a crime, law enforcement officials become distracted, and lose precious time in pursuing the wrong person, rather than the true perpetrator. Next, eyewitnesses to crimes, when faced with line-ups or photo arrays, typically receive some cues from law enforcement officials that may identify the suspect. Plus, when an eyewitness is shown several photographs or persons, he or she may tend to choose the person who most looks like the person witnessed at the crime scene, rather than a comparison based on his or her memory of the crime. Finally, despite evidence to the contrary, judges and juries tend to believe eyewitnesses, particularly when they are innocent bystanders and/or upstanding citizens who truly believe that they have identified the correct person. A recent Newsweek article on witness misidentification highlights the truly tragic consequences of this altogether too common occurrence. Timothy Cole was convicted in Texas in 1986 of aggravated sexual assault after being repeatedly identified as the perpetrator the victim. In 2009, DNA evidence cleared Cole, and proved that another defendant, who had also confessed to the crime and later died in prison, was the actual perpetrator of the crime. Not only was Cole wrongfully convicted of a violent crime on the basis of eyewitness conviction, but he also lost over twenty years of his life to unwarranted incarceration. (Newsweek, March 2009)
Wrongfully convicted of a brutal rape in Decatur, Georgia, Clarence Harrison spent nearly 18 years in prison before DNA testing proved his innocence and showed the eyewitness evidence in his case to be false.
On March 9, 1983, an African-American man entered the apartment of a 30-year old white woman through an unlocked door while she was sleeping in College Park, Georgia. The assailant tightened a belt around her neck until she passed out and then raped her. The victim told police that the attacker turned on the light and that she was able to get a good look at him. Two days earlier, a second woman in College Park had been raped in a remarkably similar manner. The March 9 attack occurred in Clayton County, and the March 7 rape occurred in Fulton. Authorities soon focused on 25-year-old Calvin C. Johnson, Jr., a college graduate recently released from prison for a 1981 burglary, Calvin Johnson received a life sentence plus 15 years for the rape of one of the Georgia women. On June 15, 1999, the state vacated Johnson’s conviction, and Clayton County District Attorney Robert Keller, who had prosecuted the case 16 years earlier, agreed to drop all charges. The true perpetrator has never been found. In 2000, the Georgia legislature awarded Johnson $500,000 compensation for his wrongful imprisonment.
Between December 1989 and September 1990, a man the media dubbed the “beauty shop rapist” terrorized the Chatham neighborhood on Chicago’s south side. In the first of a string of remarkably similar and unusual crimes, a man entered a beauty salon brandishing a pistol. He ordered the women in the shop to a back room, forced the women to undress, and robbed them of money and jewelry. Four crimes of this pattern occurred in beauty shops, and in two of these incidents, on May 2 and September 7, 1990; the man sexually assaulted a female victim. On September 14, 1990, police arrested John Willis based on an anonymous tip, both of the victims of the sexual assaults identified Willis in photographic lineups as their attacker, as did most of the other witnesses from the salons. A total of 11 eyewitnesses identified Willis as the perpetrator. In 1992, Willis was tried separately for the two crimes that included rapes. On February 13, 1992, a jury found Willis guilty, and he was sentenced to 45 years in prison. While Willis was being held without bond awaiting trial, the string of rapes and robberies continued in Chatham, all following the same unusual pattern. In April 1992, Chicago Police arrested Dennis McGruder for a string of five rapes and robberies that occurred between November 11, 1991 and March 21, 1992. McGruder pleaded guilty to five crimes that followed the identical pattern of the crimes for which Willis was arrested, including the rape for which he was convicted. In November 1993, Willis went to trial for the second rape, after McGruder was jailed for the latter five crimes. A jury again convicted Willis on the basis of identification testimony of the rape victim and other eyewitnesses, along with evidence of the previous rape conviction. DNA testing excluded John Willis—and identified Dennis McGruder as the true perpetrator. McGruder was by that time serving a 40 year sentence for the five armed robberies and sexual assaults that occurred after Willis’ arrest. Willis was released on February 24, 1999. He had lost eight and a half years in prison. At a March 15, 1999 hearing, prosecutors formally dropped all charges against Willis. The City of Chicago and Cook County settled Willis’ civil suit out of court for $2.5 million. He also received $100,000 from the State of Illinois.
Larry Fuller spent over 18 years in prison, after being wrongfully convicted of aggravated rape as the result of an erroneous identification, despite the fact that he had a full beard at the time of the identification, which stood in contrast to the witness’s memory of the perpetrator. On August 25, 1981, Fuller was convicted of aggravated rape after only 35 minutes of jury deliberation; he received a sentence of 50 years in prison on September 10, 1981. Fuller was excluded as the rapist through advanced DNA testing methods, and Governor Rick Perry granted him a full pardon in January 2007, he was the tenth person from Dallas County to be exonerated by DNA evidence in the last five years. (Eyewitness Identification, A Policy Review n.d)

The Innocence Project found that mistaken eyewitness identifications were the leading cause of the first 130 DNA exonerations, accounting for 101 of the total. A subsequent study by the Innocence Project found that over 75 percent of the now nearly 200 post-conviction DNA exonerations in the U.S. involve mistaken eyewitness identification testimony, making it the leading cause of these wrongful convictions. In addition, the Center on Wrongful Convictions at Northwestern University School of Law also studied the cases of 86 defendants who had been sentenced to death but legally exonerated based on strong claims of actual innocence, finding that eyewitness testimony played a role in the convictions of 54 percent of the death-sentenced defendants. Eyewitness testimony was the only evidence used against 38 percent of the defendants. The Innocence Project also found that photo lineups were the most oft-used identification method in the first 82 DNA exonerations. Investigators used a photo lineup in 45 percent of the cases. (Eyewitness Identification, A Policy Review n.d)
Statistics
There have been 301 post-conviction DNA exonerations in the United States.
• The first DNA exoneration took place in 1989. Exonerations have been won in 36 states; since 2000, there have been 234 exonerations. • 18 of the 300 people exonerated through DNA served time on death row. Another 16 were charged with capital crimes but not sentenced to death. • The average length of time served by exonerees is 13.6 years. The total number of years served is approximately 4,036. • The average age of exonerees at the time of their wrongful convictions was 27.
Races of the 300 exonerees: 187 African Americans
86 Caucasians
21 Latinos
2 Asian American
5 whose race is unknown

• The true suspects and/or perpetrators have been identified in 146 of the DNA exoneration cases. • Since 1989, there have been tens of thousands of cases where prime suspects were identified and pursued—until DNA testing (prior to conviction) proved that they were wrongly accused. • In more than 25 percent of cases in a National Institute of Justice study, suspects were excluded once DNA testing was conducted during the criminal investigation (the study, conducted in 1995, included 10,060 cases where testing was performed by FBI labs). • 65 percent of the people exonerated through DNA testing have been financially compensated. 27 states, the federal government, and the District of Columbia have passed laws to compensate people who were wrongfully incarcerated. Awards under these statutes vary from state to state. • An Innocence Project review of our closed cases from 2004 - 2010 revealed that 22 percent of cases were closed because of lost or destroyed evidence. (Facts on Post-Conviction DNA Exonerations, Innocence Project)
In April 2011 the Florida Senate passed a bill known as the Eyewitness Identification Reform Act. This bill would have instituted the use of educational materials and training for law enforcement officers regarding how to conduct a lineup, as well as a standard set of instructions for eyewitnesses before viewing the lineup. The bill stalled and was withdrawn from consideration in the House of Representatives.

Works Cited
Garrett, Brandon L, (2011) Getting it Wrong: Convicting the Innocent. http://www.mobile.slate.com
Garrett, Brandon L, (N.D. ) Convicting the Innocent http://www.mobile.slate.com
(2001) MISIDENTIFICATION: The Caprices of Eyewitness Testimony in Criminal Cases. http://www.criminaldefense.homestead.com
(2010) Eyewitness Misidentification is common. http://www.confidentialresources.com
(N.D.) Eyewitness Identification; A Policy Review. http://www.psychology.iastate.edu
Eyewitness Identification; The Innocence Project. http://www.innocenproject.org
Eyewitness Identification; Practices in Criminal Procedures. http://www.lawfirms.com
(2007) American Heritage Dictionary. Houghton Mifflin Company. http://www.ahdictionary.com
Facts on Post-Conviction DNA Exonerations, Innocence Project. http://www.innocenceproject.org
(2009) Witness Misidentification http://www.newsweek.com (July 2008) Eyewitness Identification; Illinois Report Controversy. http://www.en.wikepedia.org
(November 2009) Witness Identification. http://www.thegazette.com
(May 2012) Witness Misidentification; Innocence Project of Florida http://www.floridainnocence.org