New York State Justice Task Force

Recommendations for Improving Eyewitness Identifications

(Excerpt)

1. Instructions to the WitnessPreliminary instructions given to a witness by the administrator of an identification procedure before the procedure begins, should include the following:
   1. Instructing the witness orally or in writing about the details of the identification procedure (including that they will be asked about their confidence in the identification if any identification is made).
   2. Advising the witness that the person who committed the crime may or may not be in the photo array or lineup.
   3. Advising the witness that individuals may not appear exactly as they did on the day of the incident because features such as hair are subject to change.
   4. Advising the witness as follows:
      1. If an array or lineup is conducted double-blind, the administrator shall inform the witness that he does not know who the suspect is; and
      2. If the array or lineup is not conducted double-blind, the administrator shall inform the witness that he should not assume that the administrator knows who the perpetrator is.
   5. Advising the witness that he or she should not feel compelled [or obligated] to make an identification.After the identification procedure is completed, the administrator of the identification procedure should: 
   6. Instruct the witness not to discuss what was said, seen or done during the identification procedure with other witnesses involved in the case.
2. Witness Confidence Statements
   1. In every case in which an identification is made, the administrator should elicit a statement of the witness’ confidence in the identification, by asking a question to the effect of, “in your own words, how sure are you?” Witnesses should not be asked to rate their confidence in any identification on a numerical scale.
   2. All witnesses should be instructed in advance that they will be asked about their confidence in any identification made.
   3. Witness confidence statements should be documented before any feedback on the identification is given to the witness by the administrator or others.
3. Documentation of Identification Procedures
   Documentation of identification procedures should include:
   1. Documentation of all lineups with a color photograph of the lineup as the witness viewed it and preservation of all photo arrays viewed by a witness.
   2. Documentation of the logistics of the identification procedure, including date, time, location and people present in the viewing room with the witness and/or the lineup room with the suspect, including anyone who escorted the witness to and/or from the procedure.
   3. Documentation of any speech, movement or clothing change the lineup members are asked to perform.
   4. Verbatim documentation of all statements and physical reactions made by a witness during an identification procedure.
   5. Ensuring that the witness sign and date the written results of the identification procedure, including a photograph of the live lineup if one is available.
4. Photo Arrays
   1. Photo arrays should be conducted double-blind whenever practicable.
   2. If a photo array is conducted with a non-blind administrator, the procedure should be conducted blinded (as defined herein), whenever practicable.
   3. Photo array administrators must ensure that the photos in the photo array do not contain any writing, stray markings or information about the suspect such as information concerning previous arrests.
   4. At least five fillers should be used in each photo array, in addition to the suspect. There should be only one suspect per array.
   5. Fillers should be similar in appearance to the suspect in the array. Similarities should include gender, clothing, facial hair, race, age, height, extraordinary physical features or other distinctive characteristics. Fillers should not be known to the witness.
   6. If there is more than one suspect, photo array administrators should avoid reusing fillers when showing an array with a new suspect to the same witness.
   7. The position of the suspect should be moved or a new photo array (with new fillers) should be created each time an array is shown to a different witness.
5. Live Lineups
   1. Lineups may be conducted double-blind and if not, should be conducted in accordance with the procedures outlined by the NYS Identification Procedure Guidelines mentioned above, which include instructions on how to remain neutral and stand out of the witness’ line of sight while the witness is viewing the lineup, and which when coupled with appropriate preliminary instructions are intended to create a neutral environment free of inadvertent cues.
   2. There should be five fillers in addition to the suspect, where practicable, but in no case fewer than four fillers. There should be only one suspect per lineup.
   3. Fillers should be similar in appearance to the suspect in the lineup. Similarities should include gender, clothing, facial hair, race, age, height, extraordinary physical features or other distinctive characteristics. Fillers should not be known to the witness.
   4. If there is more than one suspect, the lineup administrator should avoid reusing fillers when showing a lineup with a new suspect to the same witness.
   5. The position of the suspect should be moved each time the lineup is shown to a different witness, assuming the suspect and/or defense counsel agree.
   6. If an action is taken or words are spoken by one member of the lineup, all other members of the lineup must take the same action or speak the same words.
   7. All members of the lineup should be seated, if necessary, to eliminate any extreme variations in height.
   8. Fillers from a photo array previously viewed by the witness should not be used as fillers in the lineup.
   9. In those jurisdictions that regularly use live lineup procedures, consideration should be given to running lineups after the first witness makes an identification from the photo array. Where practicable, additional witnesses can view only the lineup and not the photo array.

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For further information on the problems associated with eyewitness identification evidence (along with other testimony dependent on accurate memory), students should read work by Professor Elizabeth Loftus, a member of the psychology faculty and the law faculty at the University of California-Irvine (along with various collaborators). See, e.g., Steven J. Frenda et al., “False Memories of Fabricated Political Events,” 49 J. Experimental Soc. Psych. 280 (2013) (showing ease with which false memories can be implanted in unwitting subjects); Deborah Davis & Elizabeth F. Loftus, “Remembering Disputed Sexual Encounters: A New Frontier for Witness Memory Research,” 105 J. Crim. L. & Criminology 811 (2015); Charles A. Morgan et al., “Misinformation Can Influence Memory for Recently Experienced, Highly Stressful Events,” 36 Int’l J. L. & Psych. 11 (2013) (examining false memories among participants in military POW interrogation training program). A 2015 lecture delivered by Professor Loftus at Harvard University, titled “The Memory Factory,” is available online. 

Consider the practices described in this chapter. Which seem easy to implement? Which seem difficult to implement?