For years, lawyers have been aware of the unreliability of eyewitness identifications in criminal prosecutions, particularly when the identification involved white people identifying Black people. But despite the unreliability, they continued to be the foundation of far too many criminal prosecutions and, as a result, sent many thousands of Black men to prison.
But finally, states across the U.S. have begun to back away from the heavy reliance on eyewitness identifications, adding layers of safeguards into the system to significantly improve the chances that criminal victims are identifying the actual perpetrators of crimes—rather than someone who just happens to be the same race.
The danger of cross-racial identity is at the heart of a case explored by the Wall Street Journal involving a white woman, Jennifer Thompson, who wrongly identified a Black man, Ronald Cotton, who she said raped her in 1984. Her mistake sent Cotton to prison for nearly 11 years for a crime he didn’t commit. Because of her personal horror over the mistake she made, Thompson has become a national advocate for changing eyewitness identification procedures.
“The rape was awful. It was a nightmare,” said Ms. Thompson, now 52, who shared her story last month in testimony before the Colorado state legislature. “But learning that I identified the wrong person was the worst thing that I had ever gone through.”
Thompson and Cotton published a book about their ordeal in 2010 called Picking Cotton: Our Memoir of Injustice and Redemption.
The National Conference of State Legislatures told the Journal that about a dozen states have put laws on the books laying out written procedures that add safeguards to the process for handling eyewitness identifications.
States such as New Mexico, Kentucky, Massachusetts, Hawaii, Missouri and Georgia, in addition to Colorado, are also considering similar legislation. Colorado’s version would require state law-enforcement agencies to inform eyewitnesses that the suspect they are being asked to identify might not be in the live lineup or photo array they are examining. It would also require that identification lineups be conducted by someone who doesn’t know the identity of the suspect, so that person doesn’t influence the witness. This is called a blind procedure, which the Journal says is the basis for most of the changes being implemented.
“When you have an eyewitness to a crime, it is important that the process you follow be as minimally suggestive as possible,” Georgia state Sen. Charlie Bethel, a Republican who has introduced a measure requiring a blind administrator in live lineups, told the Journal.
In a report released in October, the National Academy of Sciences strongly recommended that states implement “double blind” procedures for eyewitness identification, in addition to videotaping the identification and documenting the witness’ level of confidence in the veracity of the identification.
“Eyewitness identification can be a powerful tool,” the report said. “As this report indicates, however, the malleable nature of human visual perception, memory, and confidence; the imperfect ability to recognize individuals; and policies governing law enforcement procedures can result in mistaken identifications with significant consequences. New law enforcement training protocols, standardized procedures for administering lineups, improvements in the handling of eyewitness identification in court, and better data collection and research on eyewitness identification can improve the accuracy of eyewitness identifications.”
Curiously, though race is an enormous factor in the unreliability of eyewitness identifications, the Journal never mentions race in its story—even while the story centers around the case of a white woman wrongly identifying a Black man. Race continues to be a huge blind spot in the journalism practiced by America’s mainstream media.
According to the Innocence Project, eyewitness misidentification plays a role in nearly 75 percent of convictions overturned through DNA testing, making it the single greatest cause of wrongful convictions in the nation. In 2014, the Innocence Project saw its number of exonerations of innocent defendants jump to 125 from 34 in 2013. The Innocence Project reports that 67 percent of the exonerated men it had a hand in getting released were Black.
When researchers have conducted controlled experiments to test the accuracy of eyewitness identifications, they have found that eyewitnesses incorrectly identify strangers at about the same rate as they identify them correctly—a horrifying finding. Significantly adding to the problem is the fact that people are much more likely to misidentify a stranger of another race. And according to researchers, white people appear to have an especially hard time correctly identifying Black people, which is a chilling finding for Black males, considering how heavily the system still relies on eyewitness identification to send Black men to jail.
Melissa Zak, chief of the University of Colorado Boulder police, speaking on behalf of the state’s police-chiefs association, told the Journal that eyewitnesses and victims faced “insurmountable” pressure to pick a suspect out of a lineup, so it was important to remove that pressure from the identification process.