The Role of Eyewitness Testimony in Exonerations: An Archival Study

• Author: Avraham Levi - Joseph Levi
• Pages: 1-9

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The Open Law Journal, 2013, 5, 1-9 1

1874-950X/13 2013 Bentham Open

Open Access

The Role of Eyewitness Testimony in Exonerations: An Archival Study

Avraham Levi* and Joseph Levi

The Hebrew Univers ity of Jerusalem, Fa culty of Law, 33 Palyam, 97890 Jerusal em

Abstract: This paper deals with two issues related to exoneration cases: On the one h and, it examines the relative numb er

of lineups used as the method of identification that resulted in mi staken identifications and false convictio ns. On the other,

it compares eyewitness error as a cause of false convictions with other common causes. The o riginal intent of the study

was to concentrate only on the first top ic. After defining some of the terms used in thi s paper, we will first ou tline our in-

terest in the first issue, and th en explain the widened focus of the paper.

Keywords: Exonerat ions, false convictions, eyewitness error , lineups, prosecution misconduct, fa lse testimony.

INTRODUCTION

An exoneration occu rs when a cour t reverses the pr evi-

ous convictio n of a defen dant. Eyewitness er ror was a cause

of conviction wh enever a witness mistakenly identified th e

defendant as the cu lprit. A lineup is a procedure in w hich

witnesses are shown a number of people, the suspect and

others known to be inn ocent ("foils"). If the witness picks th e

suspect, the police and courts tend to consider this an identi-

fication of the culpr it. In North Americ a photographs of the

lineup members ("p hoto lineups") are usually used rathe r

than the lineup memb ers themselves ("live lineups").

Wells & Seelau (1995) put forward the same reforms in

identification procedure that were proposed later in a subse-

quent, prestigiou s "white paper" (W ells, et al., 1998) author-

ized by the Americ an Psycholog ical Assoc iation. The pur-

pose of these two articles w as to present the least possible

reforms that could have maximal reduction in false identifi-

cations. Wells & Seel au (1995) concentrate exclusively on

the lineup in their pro posals. They state that "following four

simple ru les of proc edure1…can largely relieve the criminal

justice system of its role in contributing to eyewitness identi-

fication problems" (p. 775).

This beli ef, and the exclusive focus on lineups, can only

be justified if lineups so predom inate as the cause of eyewit -

ness error that we can ignore other sour ces. Is this so ?

*Address correspondence to this author at The Hebrew University of Jerusa-

lem, Faculty of Law, 33 Palyam, 9789 0 Jerusalem; Tel/Fax: 972-2-5815284;

Email: avmlevi@netvision.net.il

1 Rule 1: The p erson who conducts the lineup or photo-spread should not be

aware of which member of the line up is the suspect.

Rule 2: Eyewitnesses should b e told explicitly that the pe rson in question

might not be in the lineup or photo-spread and therefore, should not fe el that

they must make an identification .

Rule 3: The su spect should not stand out in the lineup or photo-spread as

being different from the distracters on the b asis of the eyewitness's prev ious

description of the culprit or other factors that would draw extra attention to

the suspect.

Rule 4: At the time of the identification an d prior to any feedbac k, a clear

statement should be taken from the eye witness regarding his or her confi-

dence that the identified person is the ac tual culprit.

Psychologists are aware of other, more infer ior, methods of

identification. I n the show-up, the w itness is shown only one

person, the suspect, and is asked if he or she is the culprit.

The problem is that if wi tnesses ch oose, they will always

seem to be correct. In a lineup, on the other hand, if the sus-

pect is innocent such witnesses are more likely to p ick one of

the foils, because there is only one suspect and usually at

least f ive foils. This proves to the police that the witn ess is

incorrect. D espite some defense of show-ups as a legitimate

identification m ethod (Steblay et al., 2001; Wells, 2001), the

consensus at the time among the ex perts (Kassin et al., 2001)

was that show-ups cause more mistaken identifications than

lineups, and the most recent accounts (Dysart & Lindsay,

2007a; Dysart & Lindsay , 2007b) weigh in against them.

Less atten tion has been paid to the mug-shot search. With a

mug-shot search police show witnesses a large n umber of

photos of peop le who have been arrested in the past and have

been photographed, in the hope that w itnesses will " identify"

the culprit. The mug-shot search has been studied in term s of

its potent ial negative eff ect on a subsequent lineup (Deffen-

bacher, Bornste in, & Penrod, 20 06; Memon, Gabbert, &

Hope, 2003), with l ittle mention of the negative effects o f

presenting a mug-sho t search by itself as evidence of an

identification. Res earchers are we ll aware of the weakness of

the mug-shot search as ev idence (L evi et al., 199 5, Lindsay,

et al., 19 94) .In contrast with the lineup, in the mug-bo ok

search there ar e no true foils and the people wh ose photo-

graphs witnesses choo se will be suspected.

Even less atten tion has been paid to spontaneous identifi-

cations and naming . Spontaneous Ident ifications occur when,

without being requested by a police officer to make an iden-

tification, a witness "identifies" so meone as the perpetrator.

Naming occurs when the witn ess names the suspect, whom

he is acquainted with. Th e experts are n early silent on spon-

taneous identifications, perhaps because they are difficult to

cause experiment ally. A literature search re trieved only thr ee

references for "spontaneous identificat ion". Two of these

involved court cases. Th eoretically, however, they are no

more reliable than mug-shot searches. As with mug-shot

searches, any hapless person that a witness "identifies" be-