Tracking Lineup Reforms - Part 1

The Innocence Scholarship Column September 7, 2023

Previous columns described research related to eyewitness error. A huge number of studies produced a consensus about how lineup reforms can reduce the probability of identification errors. Lineup reforms are reliable because they are based on laboratory experiments validated in field research.

Are reforms being enacted into law and adopted by police departments? No state or the federal government keeps track of this information. Where can concerned citizens and policy people find it? The National Registry of Exonerations report, Tainted Identifications, describes eyewitness research but does not track the adoption of lineup reforms. The staff of the Innocence Project in New York includes policy experts who work with state and local governments to enact such reforms. The Innocence Project’s attractively designed website provides news items rather than data about reforms directly useful to policy advocates.

We turn to innocence scholarship to get a handle on the adoption of eyewitness evidence reforms. A Boston University Law Review article, The Law and Science of Eyewitness Evidence, (“Law & Science”), published in 2022, provides a wealth of information. The authors, Thomas D. Albright, director of the Center for the Neurobiology of Vision at the Salk Institute for Biological Studies, and Brandon L. Garrett, director of the Wilson Center for Science and Justice at Duke University Law School, are well-positioned to explain eyewitness science and up-to-date developments in the adoption of lineup and eyewitness evidence reforms.

Law review (or law journal) articles are often very long, easily running to 100 pages or more. “Law & Science” contains 69 pages of text and another 50 pages of tables found in five appendices. The tables track the enactment of state laws (including Washington, D.C.) or the adoption of policies that reflect eyewitness reforms. Law reviews’ prime audience are lawyers and judges. They may not be good at math but are trained to ingest prodigious quantities of words!

The prime audiences for “Law & Science” explains the article’s importance. The article educates defense lawyers and innocence organization lawyers challenging unreformed eyewitness procedures and the prosecutors who may oppose them with a wealth of scientific and legal information. Judges and their law clerks, who must rule on legal challenges, will also draw on the expertise of Albright and Garrett. Perhaps the most important audience, state legislators and their staff, who do the research that should support good legislation, will find in “Law & Science” state-by-state summaries of legal advances relating to five critical issues. (The article also reviews the extensive science that supports eyewitness evidence reforms, some of which were discussed in previous columns. This column focuses instead on the article’s five tables that trace the progress made in changing the law of eyewitness evidence.)

Before reviewing state reforms, the article reviews US Supreme Court cases, first decided in the 1960s, designed to provide constitutional parameters for police lineup practice and for how courts are to evaluate eyewitness evidence. As described in my column, Good Intentions – and Lawyers – Are Not Enough, those decisions are a poor guide for lineup practice. The inadequacies of the Supreme Court’s eyewitness evidence law forms the leitmotif of “Law & Science.” If the United States Supreme Court fell short in providing guidance for accurate eyewitness identifications, what legal steps should be taken to reduce the dangers of misidentifications?

From Science To Policy

The answer—which has been developing for two decades in state legislatures and state courts—is captured the five tables (found in Appendices A through E) that detail those advances.

Appendix A, “State Statutes Regulating Eyewitness Identification Procedures”

This shows that 24 states passed laws requiring or recommending that police follow best practices. They include blind lineup administration, fair lineup construction, instructing witnesses that the perpetrator may or may not be present, and the like. By detailing the content of these laws, the article provides a roadmap for laggard states to adopt legislation. They also inform adoption states whether their laws can be improved.

Appendix B, “State Courts that Revised Eyewitness Evidence Admissibility Framework”

This cites state supreme court rulings that either (1) modify the reliability factors established by the US Supreme Court, or more boldly, (2) specify the research-based factors that state trial courts must consider in deciding whether to admit an eyewitness identification. Twelve state supreme courts made these kinds of major revisions.

Appendix C, “Leading State Rulings on Admissibility of Eyewitness Expert Evidence”

This lists 100 legal decisions handed down by courts in every state and Washington, D.C. on the admissibility of testimony of eyewitness experts. Experts with competence to explain eyewitness error to juries play important roles in advancing reform.

Appendix D, “State Jury Instructions on Eyewitness Evidence”

This includes the text of pattern jury instructions for every state that has them to guide jury decisions about eyewitness testimony, and identifies states without such instructions.

Appendix E, “State and Federal Model Eyewitness Identification Policies”

This lists the titles of model policies either enacted or recommended for police agencies in 26 states and the federal government.

Albright and Garrett conclude that the adoption of state lineup reforms illustrates greater compatibility of law and science than many would suspect. They are optimistic that in this area, where scientific consensus informs the law, a doctrine of best practices—which values innovation, can replace the practice of Supreme Court legal precedent—which values stability over change.

“Science & Law” shows the value of scholarship that explains scientific and policy developments. However, it does not show whether lineup reforms are adopted by police agency practices. I’ll address that question in the next column.

Copyright © 2023 Marvin Zalman