DOJ Releases Guidance on Eyewitnesses and Photo Arrays

Good news in the fight against unreliable eyewitness identifications. This week the U.S. Department of Justice released guidance on steps law enforcement agents should take to reduce the chance of influencing a witness when a witness tries to make an identification from a photo array.

A photo array is a group of photos shown one at a time or all at once to a witness who is asked by police whether he or she sees the perpetrator in the array. The array may or may not include the suspect.

Possibly, the most significant reform is that federal agents investigating crimes should administer photo arrays using a “blind” procedure, meaning that the person who shows the witness the photos shouldn't know which photo in the array is of the suspect. The idea is to make it impossible for the person showing the photos to signal (consciously or unconsciously) to the witness which photo the police think that the witness ought to pick.

The DOJ guidance is just the latest of a growing recognition in legal circles that eyewitness identifications often cannot be trusted.

In 2012, the Supreme Court of Oregon pushed this insight significantly forward when it explicitly embraced the large body of social science research that shows that the confidence of eyewitnesses  in their identifications was not a reliable measure of accuracy and that witnesses were highly susceptible to having their memories shaped by subtle and not-so-subtle cues from police and prosecutors. To minimize the risk of identifications produced by suggestive procedures, the Oregon high court required prosecutors to prove that the identifications they wanted to introduce into evidence were not obtained using suggestive procedures.

Also in 2012, the Supreme Court of Kansas put an end to the practice in that State of telling jurors that the “certainty” of a witness was a good reason for believing or disbelieving an eyewitness identification.

These, and other developments like them, will go a long way toward ensuring that judges and juries who must weigh the testimony of eyewitnesses have the best information available when they are making decisions where justice hangs in the balance.