There is no denying it: Eyewitnesses to crimes make mistakes. While eyewitness evidence can be valuable in some instances, it is well-documented that memory is extremely fallible.
Fortunately, there are eyewitness identification practices that have been proven to improve the accuracy of identifications. This is important because eyewitness misidentification is a top contributing factor in wrongful convictions.
For this reason, New Hampshire law enforcement agencies have begun to embrace these simple, but critical practices, which can literally save lives.
Recently, the New Hampshire Association of Chiefs of Police and the Office of the New Hampshire Attorney General co-hosted a training session in eyewitness identification practices for law enforcement agencies, many of whom participated via webcast.
Officers received training in best practices that are also documented in an excellent model policy published last year by the attorney generalโs office. That policy was drafted with the Chiefs Association and is detailed below:
โข Blind administration of lineups: An officer administering a photo or live lineup is unaware of the suspectโs identity or cannot see which photo the eyewitness is viewing through a process known as the folder shuffle. โBlind lineupsโ prevent any unintentional gestures from officers that could lead the eyewitness to make an erroneous identification.
โข Fillers: There must be a minimum of five fillers, none of whom should stand out, and all of whom must fit the witnessโs description of the offender.
โข Witness instructions: The officer must instruct the witness that the perpetrator may or may not be in the lineup and that the investigation will proceed regardless of whether an identification is made. This will prevent any pressure on the witness that could result in an incorrect identification.
โข Confidence statement: Immediately after an identification is made, the officer must write down a verbatim statement from the witness describing his or her level of confidence in the identification. This will provide juries with the ability to gauge the witnessโs level of confidence immediately after the identification, at which point there is a stronger correlation to accuracy than after the passage of a significant amount of time.
These practices are recommended by numerous law enforcement, judicial and scientific institutions, among them: the American Bar Association, the International Association of Chiefs of Police, the Innocence Project and the National Academy of Sciences.
They are the best way to protect against the all-too-common phenomenon of misidentification, which has contributed to an astounding 71 percent of the nationโs 342 wrongful convictions proven by DNA evidence. In New England, misidentification played a role in 79 percent (or 11 of 14) such cases.
In addition to protecting the innocent, these best practices strengthen public safety because they will help ensure that law enforcement is more focused on the real assailants. History has proven that wrongful convictions, specifically those involving misidentification, have resulted in the real perpetrator eluding justice, sometimes with violent and or deadly consequences.
Nationally, 98 real perpetrators have been identified in wrongful convictions involving misidentification that later resulted in DNA exonerations. Of those 98 real perpetrators, 43 went on to commit 100 additional violent crimes, including 64 rapes, 17 murders and 19 other crimes.
These crimes would likely not have occurred if an innocent person hadnโt been imprisoned while the guilty went free. The numbers are also stark in New England, where the real perpetrator has been identified in 36 percent of wrongful conviction cases involving misidentification, which were proven by DNA evidence.
Finally, New Hampshire is a state that deeply understands the importance of individual liberty.
When freedom is taken from a citizen, we must do all that we can to ensure that it is based on sound evidence and a comprehensive investigation. In other words, we all share the common goal of keeping our citizens safe and the innocent free.
These practices are part of that goal, and I thank law enforcement for attending our recent training, and encourage all departments to implement these reforms, just as we have in Enfield. Too much is at stake to not do so.
(Richard Crate is the chief of the Enfield Police Department and former president of the New Hampshire Association of Chiefs of Police. He worked with Attorney General Joseph Fosterโs office in 2015 to draft an eyewitness identification model policy containing the above mentioned best practices.)