“There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one,’” wrote the late U.S. Supreme Court Justice William J. Brennan Jr. in a 1981 dissent.
In many criminal cases, eyewitness identification testimony is often cited as among the most convincing evidence presented to jurors. However, eyewitness misidentification has played a significant role in about 75% of the more than 230 exonerations based on DNA evidence.
Causes of witness misidentification include:
1. Memories are not exact replicas of elapsed events. The brain does not work like a video recorder.
2. Witnesses often experience extreme stress at crime scenes and in the identification process, which can alter the accuracy of their identification.
3. When weapons are present, levels of stress and fear naturally rise. Witnesses will often focus more on the weapon than the actual perpetrator.
4. Police and prosecutorial agencies sometimes use suggestive eyewitness identification procedures. For example, unintentional cues are sometimes given to the eyewitness about which person to pick.
5. Perpetrators are known to use disguises, inhibiting the ability to correctly identify the guilty perpetrator.
6. If the perpetrator lacks distinctive characteristics like tattoos or extreme height, accurate identification may be difficult.
7. Cross-racial identification is a common occurrence but is prone to inaccuracy due to a phenomenon known as own-race bias, the proven difficulty to identify facial characteristics in other races. This contributes to the statistic that 42 percent of wrongful convictions based on misidentifications are cross-racial misidentification.
More on own-race bias:
In a study determining whether people are better at accurately identifying those of their own race, White, Black, and Hispanic clerks at a convenience store in El Paso, Texas, were asked to interact with White, Black, and Hispanic customers. Two or three hours later, the clerks were tasked with identifying the customers from a photo lineup. White clerks identified White customers most accurately, Black clerks identified Black customers most accurately, and Hispanic clerks identified Hispanic customers most accurately.
This study validates what is already a wide-held belief in the mainstream science community: own-race bias is real. But unfortunately, the idea of own-race bias does not always extend to the jury deliberation room.
In July of 1984, college student Jennifer Thompson awoke to a sound in her bedroom. It was a man at the foot of her bed who proceeded to rape her at knifepoint. During her attack, Thompson studied the man’s face, determined to hold him accountable if she survived.
Thompson was able to escape her assailant that night and worked with police to make a composite sketch. One lead identified a man named Ronald Cotton. Cotton was brought in for a lineup where Thompson positively identified him. And in court, when asked if she recognized her rapist, Thompson pointed at Cotton.
Based on Thompson’s identification, Cotton was sentenced to life plus 50 years and was taken to North Carolina’s Central Prison. At the time of his wrongful conviction, he was just 22-years-old.
Cotton was imprisoned with a man named Bobby Poole. Poole, confiding in another inmate, eventually let it leak that he was Thompson’s true attacker. DNA testing was ruled, and after spending 11 years wrongfully incarcerated, Cotton was released when the DNA showed that Poole was the real perpetrator.
Thompson and Cotton met two years later. To Thompson’s surprise, Cotton forgave her for misidentifying him. Today, they are best friends and have published a book titled “Picking Cotton: Our Memoir of Injustice and Redemption.”
The impact of eyewitness misidentifications on racial disparity:
Cross-racial identifications cause wrongful convictions, but they also cause racial disparity throughout the entire criminal justice system. Washington’s Task Force on Race and the Criminal Justice System documented the ripple effect of cross-racial identifications.
These were their broad findings: “The Task Force identified cross-racial misidentification as an important aspect of the problem. This is true for numerous reasons. First, research has indicated that White persons are more susceptible to committing cross-racial misidentification than racial minorities. Second, members of racial minority groups are more susceptible to cross-racial misidentification because potential witnesses to crimes are more likely to be White. Third, once misidentified, racial minorities in Washington also face disparately higher rates of arrest, charging, and conviction, and also receive harsher sentences, even after controlling for legally relevant factors. It should not be surprising, then, that African American men are disproportionately represented among exonerees as compared to the incarcerated population in general.”
Jury instructions
Cross-racial misidentifications have not been properly remedied because many people in the legal community believe safeguards like cross-examination are successful, despite statistics showing otherwise.
“Critical race theorists, however, argue that this response not only fails to address own-race bias but actually contributes to racial discrimination by reinforcing ordinariness–the idea that racism and racial discrimination are ordinary experiences, not abnormalities,” Bryan Scott Ryan wrote in an article for the Washington University Jurisprudence Review.
Ryan suggests requiring jury instruction in all cases where a cross-racial witness identification is present that addresses its deficiencies.
“To effectively alert and sensitize the jury to this concern, an optimal jury instruction should: (1) be mandatory in all situations in which a cross-racial identification is at issue; (2) use objective language; and (3) be administered separate from the general eyewitness testimony instruction and prior to the testimony which includes the cross-racial identification,” Ryan wrote.”