AuthorSangero, Boaz
PositionSystem-Theoretic Accident Model and Processes

Table of Contents Introduction 932 I. Modern Safety from False Convictions 935 II. The Hazard of False Convictions Based on Eyewitness Misidentifications 939 III. Safety Measures 945 A. Negation of a Conviction Based Only on Eyewitness Testimony 945 B. Proper Protocols for Police Lineup Identifications 948 C. Other Safety Measures 950 D. The National Academy of Sciences Recommendations 954 IV. Applying the STAMP Safety Model to Eyewitness Identification 957 A. The System-Theoretic Accident Model and Process 957 B. Eyewitness Identification x STAMP = Safety 959 Conclusion 963 INTRODUCTION

In many criminal law systems, eyewitness identification of a suspect is sufficient to establish that they are the perpetrator of the crime in question, without any need for additional corroborating evidence. (1) But this lofty legal status stands in contrast to the undisputed assertion in the professional literature that an erroneous eyewitness identification is far from rare, with many scholars holding it to be the most common cause of false convictions. (2) Thus, in the framework of the Innocence Project, eyewitness misidentification is the greatest contributing factor to convictions proven wrong by DNA testing, playing a role in more than 70 percent of convictions overturned through DNA testing nationwide. (3) Indeed, the English Criminal Law Revision Committee declared in its report on the matter, "We regard mistaken identification as by far the greatest cause of actual or possible wrong convictions." (4)

Research has demonstrated that, contrary to what is commonly believed--by judges and jurors as well--the accuracy of aneyewitness identification and the quality of the description of the perpetrator given by an eyewitness to the police do not correlate. (5) Furthermore, the degree of a witness's certainty in the identification--which reflects social and environmental factors and variables as well as the witness's personality and traits--bears no relation to the accuracy of that identification. (6) Cognitive psychology studies have shown that human memory is prone to errors and bias and thus cannot be trusted, particularly with remembering faces. (7) There are incomplete memories, and there are false memories, and research shows that it is hard to distinguish these from true memories. (8) Moreover, the identification procedure can also have a significant impact on the likelihood of error. (9)

When an eyewitness identification is the evidence on which factfinders must decide whether or not to convict, it is vital that they weigh the very reasonable likelihood of error as well as of false testimony. (10) Yet whereas the courts tend to accord a very strong weight to eyewitness identification of the suspect as the perpetrator of the crime, they tend not to give much evidentiary weight to a failure to do so, (11) that is to say, a witness's failure to identify the suspect or their identification of a filler in the lineup as the perpetrator. But there is no way to logically reconcile according incriminating weight to an eyewitness identification with the rejection of exculpatory weight to a failure to identify. (12)

Against this background, the present Article offers ways of reducing the rate of false convictions based on eyewitness misidentifications. The view advanced here is that the criminal justice system can be categorized as what is termed in safety engineering a "safety-critical system." (13) Because such systems deal with matters of life and death, any error is liable to cause severe harm to individuals and society alike. (14) Convicting an innocent person is a system error and accident, similar to a plane crash. (15) This is true not only metaphorically, but also as far as the economic cost is concerned. (16) The Article proposes the creation and application of a safety mechanism in the criminal justice system, specifically regarding eyewitness identification.

Therefore, after a deep discussion of one of the most serious hazards in criminal law--the hazard of false convictions based on eyewitness misidentifications--a specific safety model shall be developed, based on these discussions and on the innovative STAMP (System-Theoretic Accident Model and Processes) safety model. (17) The substance of the suggested rules is based both on the psychological research and the legal literature. The high rate of false convictions is not an inevitable fate.

The Article proceeds as follows: Part I connects between the modern theory of safety, which is well developed in other areas of our life, and the new theory of safety from false convictions. It starts from the phenomenon of false convictions, moves to risk assessment, establishes the moral duty to adopt safety measures, explores the new area of safety from false convictions, suggests adopting modern safety, and ends with showing the unsafety in the criminal justice system. Part II describes the psychological and the legal literature regarding the hazard of false convictions based on eyewitness misidentifications. Part III offers some safety measures: negation of a conviction based only on an eyewitness identification; development of proper protocols for police lineup identifications; and other safety measures as well as the National Academy of Sciences recommendations. Part IV, which is probably the most important part, develops a method of Identify-Analyze-Control in the criminal justice system, applying the innovative STAMP safety model to eyewitness misidentifications. A short conclusion follows.


    Formerly, it may have been possible to call into question whether false convictions indeed occur, but in view of the following evidence, made available by the Innocence Project and the DNA revolution, such doubts are no longer justified. (18) Recent studies have provided ample evidence of false convictions, (19) making it necessary to reconsider the issue.

    Empiric studies have shown that the rate of false-conviction is quite high. (20) Michael Risinger found that in the case of the most serious crime, which is rape followed by murder, 5 percent of convictions are false. (21) In their study, Samuel R. Gross and Michael Shaffer cited 873 cases in which individuals were exonerated, about a third based on DNA tests, with another 1,100 people being cleared in "group exonerations." (22) All in all, 1,973 innocent defendants, who had been wrongfully convicted, were officially exonerated. Moreover, as of March 2020, there were 2,566 registered exonerations in the National Registry of Exonerations. (23) In Rates of False Conviction of Criminal Defendants Who Are Sentenced to Death, Gross and his colleagues estimated that 4.1 percent of all defendants sentenced to death would be exonerated if their sentences were delayed indefinitely. (24) The authors considered this to be "a conservative estimate" of the rate of false convictions in capital cases in the United States. (25) According to an empirical study commissioned by the State of Virginia, (26) the rate of false conviction is much higher, and it stands at approximately 15 percent. (27)

    It is therefore possible to estimate the false-conviction rate to be 5 to 10 percent for the most severe offenses, and quite likely higher for less serious offenses, where the courts are likely to exercise less caution. The question arises: What can we do to reduce the rate of false convictions?

    The harm caused by false convictions reaches far beyond the wronged defendants and their families, and it affects society as a whole. There is extensive scholarship on the deleterious effects of imprisonment in general, but only in recent years has research started to pay attention to the particular harms, often irreversible, of wrongful imprisonment. (28)

    Even disregarding due process, (29) if we want to preserve public faith in the criminal justice system so that it can continue to perform its function of crime control, it is vital that safety standards be implemented to decrease the rate of false convictions.

    According to social contract theory, the state has a moral duty to ensure that the criminal justice system contains safety elements. The purpose of the state is to safeguard the rights of members of society, not to make them suffer. (30) Because the state, through the criminal justice system, is the source of the risk of false convictions, it has the moral obligation to institute safety measures to minimize this risk. (31) In practice, the only attempt the state makes to reduce the risk of falsely convicting an innocent person is the general declaration that it is necessary to prove guilt beyond a reasonable doubt. (32) Criminal law fails to implement principles of modern system safety and risk management for the reduction of false convictions even at the most basic level. (33)

    Modern safety practices date back to the period following World War II. (34) Before then, safety management was based on the reactive "fly-fix-fly" system, in which planes would fly until an accident occurred, when their causes would be investigated and eliminated, after which flying resumed. (35) The obvious flaw in this model is that it protects only against flaws that had occurred in the past, not against future accidents caused by previously undetected defects. (36) Modern safety is the result of the realization that the approach based on learning from experience is too expensive given the rising cost of accidents. (37) In the approach of modern safety, the primary objective is to prevent accidents before they occur. (38) This resulted in replacing the fly-fix-fly method with the "identify-analyze-control" method, based on the principle of "first time safe." (39) Under the new approach, future hazards are systematically identified, the likelihood of these hazards occurring is analyzed, and the risk of their occurrence is eliminated or at least reduced to an acceptable level. (40)

    Modern safety approaches of this type have been...

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