Eyewitness Misidentifications and Wrongful Convictions

Brandon L. Garrett

Professor of Law

University of Virginia School of Law

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Brandon L. Garrett

Convicting the Innocent

Where Criminal

Prosecutions Go Wrong

(Harvard University

Press 2011)

A Line-Up

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Map of Exonerations in the U.S.

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“Convicting the Innocent”Resource Websites

Data webpage home:•http://www.law.virginia.edu/html/librarysite/garrett_innocent.htm

Interactive resource:•http://www.innocenceproject.org/Content/Getting_it_Right.php

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John Jerome White Trial

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Manson v. Brathwaite432 U.S. 98 (1977)

(1)Was the procedure “unnecessarily suggestive”

(2)Was the identification nevertheless “reliable”?

(1) Opportunity to view (2) Degree of attention (3) Accuracy of prior description (4) Level of certainty(5) Length of time between crime and ID

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Social Science Research • State v. Henderson, 2011 WL 3715028

(N.J. 2011) – “The research . . . represents the ‘gold standard in terms of the applicability of social science research to the law.’”

• Three stages of remembering

– acquisition, retention, retrieval

• System Variables –identification procedures

• Estimator Variables (lighting, weapon focus, distance, duration, memory decay, stress, witness characteristics, cross-race)

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False Confidence

• “There is absolutely no question in my mind”– Steven Avery case

• “This is the man or it is his twin brother” That is one face I will never forget”– Thomas Doswell case

• “A hundred percent sure.”– Dean Cage case

• “One hundred and twenty” percent sure.– Willie Williams case

A Line-Up

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The Eyewitnesses• I studied 160 exoneree trial transcripts• 84% involved a rape and testimony of the

victim• 68 were identified by multiple

eyewitnesses (36% of 190 cases)• 48% (92 of all 190 cases) involved a

cross-racial identification.• In 67 of those cases, white women

misidentified black men.• 12% of the cases (22 of all 190) involved

child eyewitnesses

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Suggestion and Unreliability• 78% (124 of 160 cases with transcripts)

involved suggestive techniques

• 57% (91 of 160 cases with transcripts) involved witnesses who were initially not certain of their identification.

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Types of identifications

• 117 exonerees were identified in a photo array

• 60 were identified in a line-up

• 53 were identified in a show-up

• 45 cases involved composite drawings

System Variables: Best Practices

• Blind identifications

• Sequential identifications

• Confidence statements

• Instructions

• Lineup Composition

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Regulating ID’s in the Courtroom

• State v. Henderson, 2011 WL 3715028 (N.J. 2011)– Pre-trial hearings– Reliability factors grounded in social science– Detailed jury instructions

• Virginia - “Independent source” rules

• Admissibility of expert testimony

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A Line-Up

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