The Innocence Scholarship Column June 23, 2023
My previous column described the importance of eyewitness/lineup white papers in advancing both eyewitness research and lineup policy. While not the only overview of research and lineup policy recommendations, the second white paper, published
in 2020, is authoritative. It is an official statement of the American Psychology/Law Society (AP-LS). The 36 page article has been made available to the public without charge by Law and Human Behavior, a scientific journal.
Perhaps not what you would bring to the beach for vacation reading, it is understandable to a lay reader. The article was written to inform those professionally interested in fair and accurate lineups, like detectives, police administrators, prosecutors, judges, judicial clerks, legislators, legislative aides and other policy people. In fact, prior to publication, the article was read by thirty individuals who made comments, including prosecutors, police officials and many noted psychological scientists.
As noted in the previous column, the 2020 white paper, “Policy and Procedure Recommendations for the Collection and Preservation of Eyewitness Identification Evidence,” made nine recommendations for improving lineup accuracy. After reviewing the need for a new “scientific review paper” the six authors described the recommendations. Each recommendation was based on peer-reviewed scientific studies. After listing them, the authors devoted about three pages to each of the recommendations, explaining their scientific validity.
To keep this article brief, my listing of the nine recommendations shortens the actual statements and might ignore some of their nuances. Here are the lineup recommendations.
1) Before conducting an identification procedure the witness should document their description of the culprit and surrounding conditions, and be instructed to not discuss the event with other witnesses. The description process should be video-recorded.
2) Before including a suspect in a lineup, the police should document evidence supporting their suspicion.
3) Lineups should be conducted using a double-blind procedure; that is, neither the administrator nor the witness should know who the suspect is in the lineup.
4) Lineup composition: there should be only one suspect per lineup; there should be at least five fillers; do not make the suspect stand out.
5) Lineup instructions (made by the lineup administrator to the witness before conducting the lineup): (a) the lineup administrator does not know which person is the suspect; (b) the culprit might not be in the lineup at all, so answering “none of these” can be appropriate; (c) if witnesses feel unable to decide, responding “don’t know” is appropriate; (d) after making a decision, witnesses will be asked to state how confident they are; (e) witnesses are told that the investigation will continue even if no identification is made.
6) A confidence statement should be taken as soon as a positive or negative identification decision is made.
7) The entire procedure, including pre-lineup instructions and the witness confidence statement, should be video-recorded.
8) Repeating an identification procedure with the same suspect and the same eyewitness should be avoided.
9) Showups – one-person lineups – should be avoided whenever it is possible to conduct a lineup.
Reading this list gives you a more complete understanding of a fair lineup. Some of these recommendations seem obvious. While others may not be so clear, the article’s in-depth explanations explain their rationales. Nowadays, most lineups are photo-IDs rather than live lineups. It is not clear that live lineups are superior, but even if so, for practical reasons the article suggests that photo lineups are preferable.
As for showups used when a suspect is at large and police want witnesses to identify a suspect, instead of a single photo, which is inherently biasing, investigating officers can show suspects a “sixpack” (a lineup with six photos arranged in two rows of three).
It is interesting that one of the most discussed lineup methods, replacing simultaneous procedures with sequential (one-at-a-time) identification procedures is not included. Sequential lineups have been the subject of a great deal of research and controversy. Some researchers argue that greater sequential lineup accuracy results in fewer accurate identifications. Therefore, the AP-LS has not included the sequential lineup among recommendations, although some of the authors support it.
The implications of improved lineup procedures have generated some startling proposals by other authors. One research-based proposal is that an eyewitness should not make more than one identification. The basic reason is that having made one identification, the mind of the witness is inevitably biased or contaminated, and additional identifications unfairly bolster confidence. The initial identification, if recorded in accordance with AP-LS recommendations, should be sufficient. Related to this is the suggestion that an alleged victim or an eyewitness should never directly identify the defendant at trial. The classic picture of the victim pointing her finger at the defendant, saying, “I’ll never forget his face,” is an inherently biased and damaging showup.
The second eyewitness white paper is hugely important to understanding advances in creating fair and accurate lineups. It is not, however, the last word. I’ll have more to say about misidentification, only one of several reasons why wrongful convictions occur, in future columns.
Copyright © 2023 Marvin Zalman