Wrongful Convictions and Eyewitness Testimony

Law enforcement has a direct ethical responsibility to preventing wrongful convictions, no matter how heavy the pressure for a conviction may be from a political standpoint. Wrongful convictions represent a miscarriage of justice and draw attention to procedural problems in law enforcement. One of the problems that has been shown to lead to wrongful convictions is the method by which eyewitness testimony is secured. Recent criminal justice policy and procedure have changed somewhat to prevent problems with false eyewitness testimony, but these changes have been irregularly implemented (Norris, Bonventre, Redlich, et al, 2017). Therefore, the onus remains upon individual departments to develop an ethical culture that prevents wrongful convictions.
As helpful as eyewitness accounts have been in securing rightful convictions, “eyewitnesses make mistakes and that their memories can be affected by various factors including the very law enforcement procedures designed to test their memories,” (Committee on Scientific Approaches to Understanding and Maximizing the Validity and Reliability of Eyewitness Identification in Law Enforcement and the Courts, 2014, p. 1). Some of the processes used by law enforcement in the identification of suspects may lead to the planting of false memories in eyewitnesses being interviewed, or misleading eyewitnesses in ways that causes them to implicate an innocent person. The Innocence Project, for example, cites cases in which witnesses were only shown photographs of the primary suspect, where photographs of the prime suspect were marked, and when eyewitness accounts actually changed after they were interviewed by police (“Eyewitness Identification,” n.d.). Lineups are only one of many ways law enforcement solicits information from eyewitnesses; interviews and other methods also need to be presided over by a much stricter set of rules and guidelines than has been used in the past.
Thankfully, there have been meaningful changes to the ways law enforcement collect and use eyewitness testimony due to the prevalence of wrongful convictions (Desai, 2017). Wrongful convictions are not only unethical; they are also costly and do a great disservice to the victims of crimes who expect that the real perpetrator has been convicted. Misidentification by eyewitnesses is actually responsible for the vast majority of wrongful convictions: up to 72% of them (Norris, Bonventre, Redlich, et al, 2017). Research on eyewitness testimony has not been scarce either; psychologists have been researching perception and cognition of eyewitnesses when under duress by law enforcement and in clinical conditions. Human memory is malleable and unreliable, should not constitute the primary means of implicating a suspect, and should not substitute for harder forms of evidence.
The National Research Council Report shows how both system variables and estimator variables can affect eyewitness testimony. System variables include the conditions under which eyewitnesses give their testimony, including the processes like using a lineup. An in-person versus photograph lineup is another system variable. How law enforcement investigators frame their questions is another critical system variable, as is the order in which information is presented to an eyewitness. Investigators who ask leading questions may also effectively plant false memories in eyewitnesses, leading to unfair and misleading testimony. Estimator variables are linked more to eyewitness biases or prejudices. Law enforcement cannot control for estimator variables, such as eyewitness sympathy for victims of certain genders or ethnic backgrounds, or eyewitness prejudices against suspects with certain physical features. However, law enforcement personnel and law enforcement leaders can control for the system variables. Changes to police policy and procedure will help reduce the number of wrongful convictions. Eyewitness interviews should be blindly administered, monitored, and done according to rigorous evidence-based practices.







References

Committee on Scientific Approaches to Understanding and Maximizing the Validity and Reliability of Eyewitness Identification in Law Enforcement and the Courts (2014). Identifying the culprit. National Research Council. https://www.innocenceproject.org/wp-content/uploads/2016/02/NAS-Report-ID.pdf
Desai, A. (2017). Actual innocence and wrongful convictions. Virginia Public Law and Legal Theory Research Paper No. 2017-20. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2959570
“Eyewitness Identification,” (n.d.). Innocence Project. https://www.innocenceproject.org/causes/eyewitness-misidentification/
Norris, R.J., Bonventre, C.L., Redlich, A.D., et al (2017). Preventing wrongful convictions. Criminal Justice Policy Review. https://doi.org/10.1177/0887403416687359