Eyewitness identification: Guidelines and recommendations for identification procedures in the United States and in Canada

Canadian Psychology, Aug 2003 by Yarmey, A Daniel

Abstract

Innocent people are convicted each year because of mistaken eyewitness identification. This paper addresses both historical and more contemporary perspectives on the possible limitations of eyewitness identification. The primary purpose of this article is to describe some of the attempts made to protect the fact-finding process from misidentifications. The development and nature of guidelines and recommendations for the design and administration of identification lineups in the United States and in Canada are described.

It has been estimated that approximately 4,500 innocent people are convicted each year in the United States because of mistaken eyewitness identification (Cutler & Penrod, 1995). Corresponding estimations have not been made for Canada but criminal misidentifications and wrongful convictions are not unique to the United States. The primary purpose of this paper is to describe some of the attempts in the United States and in Canada to protect the fact-finding process from misidentifications.

Older Perspectives

Recognition of problems underlying eyewitness memory is not new. Thucydides, an ancient historian of the Peloponnesian war (431-404 BC), noted a "want of coincidence between accounts of the same occurrences by different eyewitnesses, arising sometimes from imperfect mcmuiy, sometimes from undue partiality for one side or the other "(cited in Levine & Tapp, 1973, p. 1088). Two centuries ago, a legal scholar writing in a handbook of criminal law and criminal politics stated:

... the identification procedure has to be preceded by a comprehensive interrogation of the witness, wherein he is to describe the characteristic features which could facilitate recognition of the persons or objects to which his testimony or statements refer. Thereafter, in the identification procedure itself, he is, whenever possible, to be confronted with several persons or objects resembling the one to be identified. He should be urged to point out, for example, the identified object, without hesitation, and also to give the reasons why he had identified this one as the real one instead of any of the others ... On the one hand, the investigator has to take care, to the best of his ability, to remove any changes that may have occurred in the object to be recognized and that may thus impair recognition: therefore, for example, he must not present the accused in his prison clothes, or with a distorting beard, etc. On the other hand, the investigator must beware of drawing the witness's attention to the correct object through facial expressions, gestures, or external signs that differentiate the object in question from others. (Henke, 1838, pp. 705-706; translation by Sporer, 1982)

The Dawn of the 20th Century

Although research interest in eyewitness testimony and identification escalated throughout the 1980s and 1990s, the empirical evidence and recommendations made by eyewitness researchers on how lineups should be designed and administered has had limited impact on the practices and decisions of the police and the courts until very recently (see Wells, Malpass, Lindsay, Fisher, Turtle, & Fulero, 2000). At the dawn of the 20th century several psychologists (e.g., Binet, 1900; Bolton, 1896; Cattell, 1895; Munsterberg, 1908; Stern, 1902, 1910; Whipple, 1909, 1910, 1911, 1912) scientifically investigated the foundations and application of cognitive processes to legal issues. That is, they conducted applied experimental studies on perception and memory, suggestibility, confessions, lie detection, and hypnotism. Munsterberg (1908), in particular, was quite outspoken about the relevancy and application of his experiments on sensation, perception, and memory to better the court's understandings of eyewitness testimony. Munsterberg's complaints that the courts were unappreciative and unreasonable in not accepting the contributions of experimental psychology did not go unnoticed. Professor John Wigmore (1909) in a law review article effectively ridiculed and dismissed Munsterberg by underscoring how his research findings, theories, and recommendations were premature and too general to be of assistance to the courts. However, Wigmore encouraged psychologists to continue their research with the suggestion that the courts ultimately would be receptive to scientifically valid research findings and theories that could be generalized to legal proceedings. It is apparent that Wigmore appreciated the potential value of empirically based scientific knowledge and the fact that eyewitness research may be able to offer assistance to the courts, which would be more than common knowledge (see Deffenbacher & Loftus, 1982; Yarmey & Jones, 1982, 1983). Following Wigmore (1909), research on eyewitness memory in North America was sparse and sporadic over the next several decades (see, for example, Cady 1924; Hutchins & Slesinger, 1928; Marston, 1924; Redmount, 1959; Slesinger & Pilpel, 1929). It was not until the 1970s that cognitive psychologists and social psychologists showed a heightened interest once again in experimental investigations of eyewitness testimony and identification. By 1995, there were over 2,000 publications on eyewitness memory (Cutler & Penrod, 1995).