Keynote Address: Reforming Eyewitness Identification

• Author: Thomas P. Sullivan
• Pages: 265-270

September 12, 2004

Page 265

In selecting an appropriate title for the keynote speech of this conference, I ran across a Groucho Marx quote - "I never forget a face, but in your case I'll be glad to make an exception."¹ For this meeting about the epidemic of mistaken identifications by eyewitnesses, Groucho would probably say - "I never recall a face, but in your case I'll be glad to make an exception."

It is a privilege to address this very knowledgeable group on the important topic of eyewitness identifications. When I served as Co-Chair of Illinois Governor George Ryan's Commission on Capital Punishment, we read the various lawyer recommendations about police investigations and practices, most of which related to events that occurred after the defense lawyers entered the cases. However, in analyzing the cases in which defendants were convicted and sentenced to death or lengthy terms of imprisonment, and later exonerated, the fatal errors often occurred at very early stages of the investigations before any defense lawyer was involved.²Most errors stemmed from the same sets of circumstances, particularly: early focus by the police and prosecution on particular suspects which caused investigators to overlook or minimize leads to other potential perpetrators;³delays in appointing lawyers for indigent arrested suspects;⁴extensive, unrecorded custodial interrogations of suspects;⁵the ways in which eyewitness identifications were obtained;⁶and how tentative, uncertain identifications became positive at trial as a result of confirmations and suggestions received from officers or other witnesses.⁷Page 266

During the Commission's early days, I happened to read a short article in the New Yorker magazine about a new and different method of lineup and photo spread identification in which the eyewitness is shown the persons in the array one-by-one, and the witness's response is recorded before viewing the next.⁸The chief proponent of this procedure, Professor Gary Wells, who will address this conference, proposed that police substitute sequential one-by-one viewing for the traditional simultaneous procedure where all members of the lineup and photo spread are displayed to the witness at the same time.

Professor Wells appeared before our Commission and explained the results of his research and experiments with the sequential method: far fewer identifications of fillers as well as little loss of correct identifications. We read the 1999 report of the National Institute of Justice on eyewitness evidence and articles in psychological and sociological journals, and we spoke with law enforcement personnel in New Jersey who were using the sequential system statewide. As a result, a majority of the Commission recommended: (1) that the administrator should tell the witness that he/she not assume that the administrator knows which person is the suspect, that the suspect may not be in the array, and that the witness should not feel obligated to make an identification; (2) that if the administrator does not know who the suspect is, the sequential procedure should be used, that is, the witness should view one lineup member or photo at a time, and the witness's response or certainty statement should be recorded before being shown the next person or photo; (3) that a clear written record be made of any statement made by the witness at the time of the identification procedure as to his or her confidence that a person in the array is or is not the...