Recommendation



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GENERAL INFORMATION FORM

1. Summary of Recommendation
This recommendation on eyewitness testimony seeks to increase the chances of convicting the guilty while reducing the risks of convicting the innocent by reforming eyewitness identification procedures, such as lineups and photospreads, to improve their likely accuracy. The primary components of the recommendation are that police and prosecutors should draft detailed guidelines to improve the accuracy of eyewitness identification procedures; that those guidelines should at least address the topics and reflect the teachings of the ABA Statement of Best Practices for Promoting the Accuracy of Eyewitness Identification Procedures; and that police and prosecutors should receive periodic training in these procedures and create internal mechanisms for updating them. The recommendation also states that, where appropriate in an individual case, courts should: (1) have the discretion to allow properly qualified experts to testify on the factors affecting eyewitness accuracy and, (2) when there has been a pretrial identification of the defendant, and identity is a central issue in a case tried before a jury, consider exercising their discretion to use a specific instruction, tailored to the needs of the individual case, explaining the factors to be considered in gauging lineup and photospread accuracy.
2. Approved by Submitting Entity.
This recommendation was approved by the Criminal Justice Section Council at its April 17-18, 2004 meeting.
3. Similar Recommendations Submitted Previously.
This recommendation has not previously been submitted to the House of Delegates or the Board of Governors.

4. Relevant Existing ABA Policies and Affect on These Policies.
There are no relevant existing ABA Policies.
5. Urgency Requiring Action at this Meeting.
The problem of wrongful convictions has recently received widespread attention as numerous defendants have been exonerated after spending years in prison, while the real culprits have gone free. Public pressure and pressure within the legal profession for quick and effective improvements in our system of justice is intense. States and localities throughout the nation are considering a variety of reforms. If the ABA does not act now, it will lose the opportunity to influence this national debate in a positive way. This urgency is greatest in the case of eyewitness misidentification, which is the single largest contributor to mistaken convictions.

6. Status of Congressional Legislation (If applicable).
No legislation is currently pending.
7. Cost to the Association.
The recommendation’s adoption would not result in direct costs to the Association. The only anticipated costs would be indirect costs that might be attributable to lobbying to have the recommendation adopted or implemented at the state and federal levels. These indirect costs cannot be estimated, but should be negligible since lobbying efforts would be conducted by existing staff members who already are budgeted to lobby Association policies.
8. Disclosure of Interest (If Applicable).
No known conflict of interest exists.
9. Referrals.
Concurrently with submission of this report to the ABA Policy Administration Office for calendaring on the August 2004 House of Delegates agenda, it is being circulated to the following:
Sections, Divisions and Forums:

All Sections and Divisions


10. Contact Person (Prior to 2004 Annual Meeting).
Prof. Andrew Taslitz

Howard University School of Law

2900 Van Ness St., NW

Washington, DC 20008

Phone: (202) 806-8029

E-Mail: ataslitz@law.howard.edu


11. Contact Persons (Who will present the report to the House).
Neal R. Sonnett Stephen Saltzburg

Law Offices of Neal R. Sonnett George Washington University

One Biscayne Tower School of Law

Two South Biscayne Blvd. Suite 2 720 20th Street, NW - Room B-303F

Miami, Florida 33131 Washington, DC 20006

Phone: (305) 358-2000 Phone: (202) 994-7089

FAX: (305) 358-1233 FAX: (202) 994-7143

E-Mail: nsonnett@sonnett.com E-Mail: ssaltz@main.nlc.gwu.edu



1 This summary of Calvin Johnson’s case is drawn from Calvin C. Johnson, Jr., With Greg Hampikian, Exit To Freedom: The Only Firsthand Account Of A Wrongful Conviction Overturned By DNA Evidence XCI-XVII, 73-74, 84-133, 239-47 (2003). A more complete version of this Report will be available to the public soon.

2 Id. at 281.

3 See infra text accompanying notes 16-20 for a discussion of the significance of these factors.

4 See, e.g., Stanley Cohen, The Wrong Man: America’s Epidemic Of Wrongful Death Row Convictions 39-82 (2003) (discussing many of these cases); Barry Scheck, Peter Neufeld, Jim Dwyer, When Justice Goes Wrong and How to Make It Right 53-100 (2001) (discussing additional cases).

5 See Cohen, supra note 4, at 41-46.

6 See generally Cohen, supra note 4; Scheck, supra note 4.

7 See Cohen, supra note 4, at 40 (on perjured or compelled eyewitness identifications); Honorable Arthur L. Burnett, Sr., A Preliminary Analysis of How the Criminal Justice System Handles Accomplice and Informant Testimony and Some Recommendations for Improvements (internal report to the ABA Ad Hoc Committee on Innocence and the Integrity of the Criminal Justice System).

8 See Cohen, supra note 4, at 39-40.

9 Cf. Edward J. Imwinkelried, Flawed Expert Testimony: Striking the Right Balance in Admissibility Standards, 18 Crim. J. 28, 30 (2003) (“The problem with erroneous expert testimony is smaller than and more tractable than the problem of mistaken eyewitness testimony by layperson.”).

10 Although Cohen does not expressly state his argument in terms of risk, a fair reading of his work suggests that risk minimization is his goal, though he also sees the fear of error as grounds for opposing the irreversible punishment of death. See Cohen, supra note 4, at 39-82, 269-90. This Report expresses no opinion on the question of capital punishment. The risk of eyewitness error is present in many types of criminal cases, the vast majority of which do not involve even a potential death sentence.

11 See infra Part III; Saul M. Kassin, On the “General Acceptance” of Eyewitness Testimony Research: A New Survey of the Experts, 56 Am. Psychologist 405 (2001) (survey of experts reveals an agreement rate of at least 80% on many of the factors affecting eyewitness accuracy that are discussed in this report).

12 See infra text accompanying notes 34-35.

13 See infra text accompanying notes 34-35.

14 See infra text accompanying notes 97.

15 See Resolution on Improving the Eyewitness Identification Process.

16 bryan Cutler, Eyewitness testimony: Challenging your opponent’s Witnesses 13-17 (2002).

17 Id. at 18. For more details on cross-racial identification, see American Psychological Association, Special [Symposium] Theme: The Other Race Effect and Contemporary Criminal Justice: Eyewitness Identification and Jury Decisionmaking, 7 Psych., Pub. Pol’y, & L. 3-262 (2001).

18 Cutler, supra note 16, at 18-20.

19 Id. at 21-22.

20 See id. at 22-25.

21 See Steven Penrod, Eyewitness Identification Evidence: How Well Are Witnesses and Police Performing?, 18 Crim. J. 37, 37-45 (2003).

22 See Cutler, supra, note 16, at 39.

23 See Michael J. Saks, et. al, Model Prevention and Remedy of Erroneous Convictions Act, 22ariz. st. l.j. 665 (2001) [hereinafter Saks, Model Act].

24 See Cutler, supra note 16, at 39.

25 Id. at 39.

26 Id. at 39.

27 Saks, Model Act, supra, note 23, at 686; see also Gary L. Wells, Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 L. & human behavior 603, 639 (1998); Penrod, supra note 21, at 46 (summarizing literature); Cutler, supra, note 16, at 39; Kassin, supra note 11, at 410-11.

28 See Penrod, supra, note 21, at 46.

29 Saks, Model Act, supra, note 23, at 686 (citing Wells, et. al., supra, note 27, at 639-40).

30 See Penrod, supra, note 21, at 46.

31 See Wells et. al., supra, note 27, at 617.

32 See Cutler, supra note 16, at 56-67.

33 State of New York v. Rahim Thomas (2001). Although the vast majority of researchers accept the superiority of sequential methods, Justice Kreindler was wrong to find, “unanimity” among those researchers. See infra text accompanying notes 62-76.

34 Id. See also Cutler, supra, note 16, at 57. Other New York State judges have disagreed, however, with Judge Kreindler, largely doing so in unpublished decisions collected by Committee member Dino Amoroso.

35 The sources relied upon for the position stated in this paragraph are Ebbe B. Ebbesen and Heather D. Flowe, Simultaneous v. Sequential Lineups: What Do We Really Know?, www.psy.ucsd.edu%7eeebbesen/SimSeq.htm2003; Dawn E. McQuiston, Roy S. Malpass, & Colin Tredoux, Sequenital v. Simultaneous Lineups: A Review of Method and Theory (draft); Amina Memon & Fiona Gabbert, Unraveling the Effects of Sequential Presentation in Culprit Present Lineups (in press); Kassin, supra note 11.

36 Penrod, supra, note 21, at 45.

37 See id. at 45.

38 See id. at 45. But see Roy Malpass, General Principles of Lineup Fairness Evaluation, www.eyewitness.utep.edu/consult04.html (last visited April 13, 2004) (American Psychology and Law Policy guidelines for constructing fair lineups suggest, in Dr. Malpass’s view, a lineup size of at least 9 foils, meaning an array of at least 10 persons when including the target).

39 See Penrod, supra, note 21, at 45.

40 See, e.g., Wells, et. al., supra note 29, at 635 (describing the 10% error rate as “far higher than what would seem acceptable to the justice system.”); Penrod, supra note 48.

41 See Penrod, supra, note 21, at 45-46.

42 See Wells et. al., supra, note 27, at 632.

43 See id. at 632.

44 See id. at 632-34.

45 See Cutler, supra, note 16, at 40-41.

46 See Wells, et. al., supra, note 27, at 630.

47 See Cutler, supra, note 16, at 34.

48 See Penrod, supra, note 21, at 45.

49 See Cutler, supra note 16, at 34.

50 Penrod, supra, note 21, at 46.

51See id. at 46. Psychology Professor Brian L. Cutler summarizes much of the research on the relationship between a witness’s confidence in an identification and its accuracy thus:

[T]he relationship between a witness’s confidence and the accuracy of her testimony or identification is modest at best. This is because confidence and accuracy are influenced by different things. Some people are always confident, but not always right. Others may be rarely confident, but frequently correct. The bigger problem with eyewitness confidence is that it is malleable.



Cutler, supra note 16, at 24-25. Concerning this last point, the research reveals that telling a witness that she made the correct choice increases confidence while reducing the confidence-accuracy correlation. See Steven Smith, et. al., Postdictors of Eyewitness Errors: Can False Identifications Be Diagnosed in the Cross-Race Situation?, 7 Psych., Pub. Pol’y, & Law 153, 165 (2001). Repeated post-event questioning can have a similar effect. See id. at 165. The bottom line: The at-best modest association between confidence and accuracy when measured “’cleanly’ - - just after an interview or identification and without any social influence” - - degrades as social influences seep in with the passage of time. See Cutler, supra note 16, at 25. Therefore, prompt recording of a witness’s stated confidence level elicited in a non-suggestive manner immediately after the identification is essential. See Penrod, supra note 21, at 46.

52 See Wells et. al., supra, note 27, at 640.

53 See id.

54 See id. at 641.

55 See andrew e. Taslitz & margaret l. Paris, constitutional criminal Procedure 788 (2d ed. 2003). There is some research suggesting that show-ups may be widely used. Thus one study found that 55% of identifications in a 488 case sample over a four year period in a major metropolitan area were show-ups; another study found a show-up rate of 30% in El Paso, Texas; and an intensive study of one Illinois detective found a 77% show-up rate. See Steblay, et. al., Eyewitness Accuracy Rates In Police Show-up and Lineup Presentations: A Meta-Analytic Comparison, 27 Law & Human Beh. 523, 524 (2003) (summarizing research) [hereinafter Steblay, Eyewitness Show-up Accuracy Rates].

56 Wells et. al., supra, note 27, at 631. However, a more recent meta-analysis of the research done on the accuracy of show-ups versus lineups strikes a more cautionary note. See Steblay, Eyewitness Show-up Accuracy Rates, supra note 114. These researchers found only eight papers on the subject, with conflicting results; found further that, depending on the measure chosen, under certain conditions show-ups may be no more dangerous for the innocent than are lineups, though using other measures the opposite conclusion might be reached; and found inadequate exploration of the impact of a wide array of variables on accuracy. Their conclusion, however, was that the “data currently available leave us with residual concern regarding potential dangers of show-ups and with a strong appreciation of the need for research that will specifically address show-up accuracy under realistic conditions comparing competent practice with biased procedure.” Id. at 539. Overall, there was a “paucity of data and…[a] need for more deliberate attention to show-ups.” Id. at 539.
A few related points must be noted. For any identification method, accuracy declines as the time between the crime and the identification increases, thus raising the number of false identifications. See Otto H. Maclin, et. al., Race, Arousal, Attention, Exposure, and Delay: An Examination of Factors Moderating Face Recognition, 7 Psych., Pub. Pol’y, & L. 134, 136-37 (2001). If part of the argument in favor of show-ups is that they enable prompt identifications when memories are the most fresh, that argument vanishes for show-ups done significantly after the time of the crime. But see id. at 538 (“The fact that the show-up generally occurs shortly after the crime may further convince witnesses that the suspect is unlikely to be innocent. They may ask themselves, ‘How many people can there be in this area that are wearing clothes like that?”’ But more research on clothing bias is needed). Moreover, new software programs usable on laptops or personal digital assistants combined with digital camera technology enable the prompt creation of on-the-scene video or photographic lineups by either simultaneous or sequential methods, perhaps in the near future further minimizing the need-for-urgent-action justification for using show-ups. See Otto H. Maclin, et. al., PCE_Basic: A Computerized Framework for the Administration and Practical Application of Research in Eyewitness Psychology (March 2004) (paper presented at the 2004 Annual Conference of the American Psychology and Law Society).

57 See Wells, supra note 27, at 631.

58 See id. at 631.

59 Saks, Model Act, supra note 23, at 687.

60 See id. at 687.

61 See id. at 687.

62 See Cutler, supra, note 16, at 31-32.

63 See Tim Valentine & Pamela Heaton, An Evaluation of the Fairness of Police Lineups and Video Identifications, 13 Applied Cognitive Psychology 559 (1999).

64 David A. Fahrenthold, Lack of Suspect Look-Alikes Helps Lead to Demise, Wash. Post, April 19, 2004, A01. The Post reporter explained further:

D.C. Police have trouble not only in finding enough officers who bear some resemblance to the suspect, but also in locating officers who can spare the time to go to police headquarters when they could be patrolling the streets or investigating crimes. These human scavenger hunts can take hours, they said.



65 Id.

66 Id.

67 Id.

68 Cutler, supra note 16, at 42-44.

69 Id. at 129-30.

70 Wells et al., supra, note 27, at 354.

71 Id. at 354.

72 Id. at 454.

73 See, e.g., U.S. v. Larkin, 978 F. 2d 964 (7th Cir. 1992); U.S. v. Purham, 725 F. 2d 450 (8th Cir. 1974); U.S. v. Fosher, 590 F. 2d 381 (1st Cir. 1979); State v. Gaines, 260 Kan. 752 (1996); Commonwealth v. Ashley, 427 Mass. 620 (1998); State v. Coley, 32 S. W. 4d 831 (Tenn. 2000); Commonwealth v. Simmons, 541 Pa. 211 (1995).

74 See e.g., U.S. v. Poole, 794 F. 2d 462 (9th Cir. 1986). Support for the assertion that expert eyewitness identification testimony by qualified witnesses should survive Daubert scrutiny and related admissibility tests can be found in Cutler, supra note 163, at 125-32.

75 See e.g., U.S. v. Currly, 977 F. 2d 1042 (7th Cir. 1992); U.S. v. Hudson, 884 F. 2d 1016 (1st Cir. 1995); U.S. v. Blade, 811 f. 2d 461 (8th Cir. 1987); U.S. v. Langford, 802 F. 2d 1176 (9th Cir. 1986); U.S. v. Brien, 59 F. 3d 274 (1st Cir. 1995), cert. denied, 516 U.S. 953 (1995); U.S. v. Hicks, 103 F. 3d 837 (9th Cir. 1996); State v. Chapple, 135 Ariz. 281 (1983); State v. Nordstrom, 200 Ariz. 229 (2001); People v. Lee, 96 N.Y. 2d 157 (2001); State v. Cole, 147 N.C. App. 637 (2001).

76 See e.g., State v. Moon, 45 Wash. App. 692 (1986); U.S. v. Hines, 55 F. Supp. 2d 62 (D.Mass. 1999); Brodes v. State, 250 Ga. App. 323 (2001); People v. Whittington, 74 Cal. App. 3d Supp. 806 (1997).

77 See Jennifer Devenport, Brian Cutler, Veronica Stinson, & David Kravitz, How Effective Are the Cross-Examination and Expert Testimony Safeguards? Juror’ Perceptions of the Suggestiveness and Fairness of Biased Lineup Procedures, 87 J. Applied Psych. 1042 (2002).

78 See, e.g., S. Fox & G. Walters, The Impact of General Versus Specific Expert Testimony and Eyewitness Confidence Upon Mock-Juror Judgment, 10 L. & Human Beh. 387 (1980); Elizabeth Loftus, Impact of Experts Psychological Testimony on the Unreliability of Eyewitness Identification, 65 J. of Applied Psychology 9 (1980); G. Wells, R. Lindsay & J. Tousignant, Effects of Expert Psychological Advice on Human Performance in Judging the Validity of Eyewitness Testimony, 4 L. & Human Behavior 2785 (1980). See also Brian L. Cutler & Steven L. Penrod, Mistaken Identification: The Eyewitness, Psychology, And The Law 240 (1995) (concluding that various studies support this conclusion: “Expert testimony improve[s] sensitivity without affecting jurors’ overall level of skepticism about the identification.”). There is, however, reason to believe that identifying errors in cross-racial identifications may still be particularly difficult, even for the most well-informed and well-instructed juries. See Smith, supra note 106, at 165-67.

79 See United States v. Telfaire, 469 F. 2d 552, 558-59 (D.C. Cir. 1979).

80 See Cutler, supra, note 16, at 159-60.

81 See Edith Greene, Judge’s Instruction on Eyewitness Testimony: Evaluation and Revision, 18 J. Applied Social Psych. 252, 252-76 (1988); Cutler, supra, note 16, at 160-63) (reprinting the revised instruction).

82 See Cutler, supra, note 16, at 163.

83 See id. at 163-68 (also reprinting the Wright instructions, which was first articulated in People v. Wright, 43 Cal. 3d 399 (1987)).

84 See id. at 168.

85 See e.g., State v. Harden, 175 Conn. 315 (1978); Commonwealth v. Ashley, 427 Mass. 620 (1998); State v. Mann, 56 P. 3d 212 (Kan. 2002); State v. Pierce, 330 N.J. Super. 479 (2001).

86 See e.g., State v. Cromedy, 158 N.J. 112 (1999).

87 See e.g., State v. Chatman, 109 A112. 275 (1973), cert. denied, 414 U.S. 1010 (1973); State v. Osorio, 187 Ariz. 579 (1996); State v. Taft, 57 Conn. 19 (2000); Young v. State, 226 Ga. 640 (1997).

88 See e.g., McLean v. People, 172 Colo. 338 (1970); Riley v. State, 268 Ga. 640 (1997); State v. Jones, 273 S.C. 723 (1979)), or the availability of an alibi (See e.g., State v. Valencia, 118 Ariz. 136 (1977); State v. Sloan, 575 S.W. 2d 836 (Mo. App. 1978).

89 See e.g., Taylor v. State, 157 Ga. App. 212 (1981); Gunning v. State, 347 Md. 332 (1997).

90 See generally Randolph Jonakait, The American Jury System 202-15, 290-94 (2003).

91 See Cutler, supra, note 16, at 163-68.

92 See generally David L. Faigman, et. al., Science In The Law: Social Science Issues (2002).

93 See Deborah Bartolomey, Cross-Racial Identification Testimony and What Not to Do About It: A Comment on the Cross-Racial Jury Charge and Cross-Racial Expert Identification Testimony, 7 Psych. Pub. Pol’y. & L. 247 (2001).

94 This view was expressed by one sitting judge at the Criminal Justice Section’s Spring 2004 Council Meeting at which this Report and its associated recommendations were discussed.

95 See Steven Friedland, Et. Al., Evidence Law And Practice (2000)(discussing judicial notice).

96 See Christian A. Meissner & John Brigham, Thirty Years of Investigating Own-Race Bias in Memory for Faces, 7 Psych., Pub. Policy, & L. 3, 25 (2001) (“cautionary jury instructions may have some potential…assuming that they contain accurate information…”) (summarizing research).

97 The summary of these reports in this section is drawn from reviewing the following sources: Cutler, supra note 19, at 45-47, 56-57; DOJ-Suggested Standards for Pretrial Identifications 376-83; The JusticeDepartment Guidelines: An Incomplete Attempt to Remedy Police Contamination, reprinted in wrongful convictions: a call to action 379, 379-83 (The Criminal Justice Institute of Harvard Law School, April 19-20, 2002); Attorney General Guidelines for Preparing and Coinducting Photo and Live Lineup Identification Procedures, reprinted in wrongful convictions: a call to action, supra, at 387-93; Ryan Commission Report; Saks, et al., Model Act, supra note 23; SB 472 and Edwin Colfax, Status of Action on Recommendations of the Illinois Goivernor’s Commission on Capital Punishment, www.northwestern.edu/depts./clinics/wrongful/documents/GCEStatus.htm; and North Carolina Actual Innocence Commission Recommendations for Eyewitness Identification.



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