Eyewitness Misidentification: When the Witness Is Wrong
Eyewitness testimony is a powerful part of any trial. If an eyewitness gets up on the stand, points to someone in the courtroom, and confidently says, “It was them!,” it can be hard to convince a jury otherwise. When you’re the person who has been wrongly accused, this situation quickly goes from distant TV courtroom drama to real-life nightmare. Then it’s time to learn everything you can about eyewitness misidentification.
What Is Eyewitness Misidentification?
Eyewitness misidentification is when an eyewitness identifies the wrong person as someone who committed a crime. The eyewitness can be the victim of a crime or someone who saw the crime happen. When the police interview them, they’ll have them identify the offender using various witness identification techniques, like:
- Photo arrays (when a witness sees a group of photos)
- Physical lineups (when a witness sees a group of individuals in person)
- Voice lineups (when a witness hears a series of voices)
- In-court identifications (when a witness identifies the offender in court)
Eyewitness misidentification is simple: It’s when they pick out the wrong person. It can happen in cases ranging from assault to robbery to first-degree murder – but what happens next?
How Common Is Eyewitness Misidentification?
Eyewitness misidentification is more common than you might think. According to the Innocence Project, eyewitness misidentification is a leading contributor in wrongful convictions, playing a role in 69% of convictions that have been proven wrong using DNA testing. And according to the National Registry of Exonerations, nearly 30% of the convictions it overturned in 2021 were influenced by eyewitness misidentification.
Sometimes, victims purposely misidentify someone: One report found that witnesses misidentified offenders on purpose in 26% of cases that were overturned. However, even more of these cases are simply mistakes.
What Causes Eyewitness Misidentification?
Eyewitnesses have often been through a traumatic, or at least stressful, experience. Then, they’re put under intense pressure to identify an offender who they may not have seen clearly. On top of that, human memory isn’t that reliable to begin with. All of this creates situations where witnesses get it wrong.
Memory Limitations
Our brains simply can’t remember everything that we see – it would be overwhelming. That makes our memories imprecise and much more subject to change than you might expect. When we reconstruct those memories, we fill in the details with information from other memories, plus knowledge we’ve picked up from other sources, including newspapers, other witnesses, and the police. Once you understand how memory works, it’s easy to see how eyewitness misidentification happens so often.
Stress and Anxiety
Our memories are especially unreliable when we’re stressed, anxious, or afraid – all feelings that victims and witnesses of crimes are likely to feel. These emotions lower our ability to observe and recall specific facts. In one classic study, students questioned in a low-stress situation could identify their interviewer the next day as much as 76% of the time, while those in a high-stress situation could only identify them about 34% of the time.
Bias
Studies have also shown what’s called the “cross-race effect”: People of any race are better at recognizing faces from their own race, relative to other races. We also think that we’re good at recognizing faces from other races, when we’re not. This causes a high rate of cross-race eyewitness misidentifications, which may contribute to the disproportionate number of wrongfully convicted people who are minorities.
Improper Lineups
Police identification techniques, like photo arrays and lineups, provide plenty of opportunities for eyewitnesses to choose the wrong person. There are a number of rules police are supposed to follow, but if they don’t, eyewitness misidentification can easily happen. Even if the police aren’t purposely misleading the witness, they could:
- Fail to tell the eyewitness that the offender may not actually be in the lineup
- Fail to tell the eyewitness that they do not have to choose someone from the lineup (they can say they don’t recognize any of the individuals)
- Unintentionally influence the witness with facial expressions and body language
- Create a lineup with “fillers” who don’t look enough like their suspect, making their preferred suspect stand out
- Tell the witness they “did a good job,” giving them confidence even if they’re wrong
The way many lineups are set up forces the witness to use their “relative judgment.” This means they choose the person who most looks like the offender, even if they’re not certain it is the offender.
Showing a lineup one person at a time, rather than all at once, lets the witness compare the person to their actual memory. Then they can confirm or deny if it was them before moving on to the next suspect. This is an important way to decrease eyewitness misidentification.
Unethical Behavior
Sometimes, eyewitness misidentification happens because of unethical police misconduct. Police actions go from unintentional to unethical in situations like:
- Creating a lineup that purposely singles out their suspect for identification
- Arranging for a witness to see the suspect at the crime scene or wearing handcuffs, to make them look guilty
- Purposely giving clues about who they want the witness to pick
Unfortunately, some police departments still use these techniques. And once the eyewitness identifies someone, they tend to convince themselves they’re right. So what can you do?
What Can You Do If You’ve Been Misidentified?
When eyewitness misidentification happens early in a case, it gives the police and the witness plenty of time to convince themselves they’re right. If you’ve been misidentified, you usually have two opportunities to defend yourself: during your criminal case and during the appeals process.
Defending Against Eyewitness Misidentification
Police rely heavily on eyewitness testimony to build their case. If you’ve been misidentified, it’s not likely they’ll change their minds and let you go. But you can fight the misidentification during your trial. An experienced defense attorney will know how to investigate the techniques the police used and build a counter-argument to present at trial.
Your attorney will also make sure that the jury is given proper instructions about eyewitness misidentification. The Oklahoma Uniform Jury Instructions state, “Eyewitness identifications are to be scrutinized with extreme care. Testimony as to identity is a statement of a belief by a witness. The possibility of human error or mistake and the probable likeness or similarity of objects and persons are circumstances that you must consider in weighing identification testimony.”
The instructions go on to give specific factors for juries to consider. If eyewitness identification is a critical part of the state’s case, the jury must receive these instructions.
Appealing a Conviction Based on Eyewitness Misidentification
Despite all of the evidence proving how unreliable our memories truly are, juries still trust eyewitnesses. Sometimes, juries convict based on eyewitness testimony even if there’s evidence that the suspect didn’t do it – or even if the eyewitness later says they’re not sure.
If you’re convicted, don’t give up. The National Registry of Exonerations is full of people whose wrongful convictions have been overturned because the appeals process proved eyewitness misidentification. This can happen when:
- New evidence in your favor has come to light
- There wasn’t any evidence other than the eyewitness to support your conviction
- The eyewitness recants their testimony, or “takes it back”
- New technology, like DNA testing, proves your innocence
If your appeal isn’t successful, you can take your case to higher courts in Oklahoma, even including the supreme court.
The Bottom Line
The human memory is much more unreliable than we’d like to admit – and eyewitness misidentification is more common than the police and prosecutors would like to admit. Yet juries still trust eyewitness testimony, and the state relies on it. If you’ve been misidentified, you need an experienced criminal defense attorney on your side. Contact the Khalaf Law Firm for a free case evaluation and get started building your defense today.