Preventing Mistaken Identifications

police-lineupOn September 16, 2015,  I urged the Joint Committee on the Judiciary to report favorably House Bill 1290, an Act improving the accuracy of eyewitness identification procedures. This bill would mandate that every city or town serving a population of 2,000 or more residents shall have a written policy consistent with the model policy on eyewitness identification developed by the Massachusetts Chiefs of Police Association and the Massachusetts State Police.

The recommendations outlined are based on generally accepted science and evidence-based practice and reflect an understanding by professional and fair-minded police officers that the police are as responsible for protecting the innocent from conviction as they are for identifying and convicting the guilty. They also recognize that problems with eyewitness identification have been the cause of far too many innocent people being convicted and imprisoned. Moreover, as the police chiefs of our major cities have noted in their report outlining best practices for identification procedures, in addition to sending innocent people to prison, wrongful convictions based on faulty eyewitness identifications leave true perpetrators on the street and capable of continued offending.

Testifying on behalf of the Massachusetts Association of Criminal Defense Lawyers, I offered one small suggestion to the bill. As written, section (f) requires that at the time an identification is made, the eyewitness shall be asked to articulate in his or her own words the level of certainty he or she feels in the identification and further requires that the eyewitness’s reply be documented verbatim. MACDL recommends that the law explicitly require that any statement of certainty be made before the witness receives any feedback from police officers.

We also maintain that the witness should be asked about the original conditions under which the witness viewed the perpetrator, such as distance, duration, lighting, and any other factors relevant to their observations before the identification procedure occurs. MACDL further suggests that an audiovisual recording of the identification procedure would help ensure that there liable identification procedures outlined in this bill were followed. This would help avoid unnecessary disputes over what was said and done and allow judges and juries to better evaluate testimony concerning eyewitness identification.



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