Dispatch from the Field: Kentucky Moves Toward Eyewitness Identification Reform

By Rebecca Brown, Innocence Project Policy Analyst

Today I will be providing testimony before Kentucky’s House Judiciary Committee on HB 298, a bill that can greatly enhance the accuracy of Kentucky’s eyewitness identification procedures. The introduction of this bill resulted, in part, from a statewide conference held in November of last year in Louisville, hosted by the University of Louisville and co-sponsored by the Salmon P. Chase College of Law, the University of Kentucky College of Law and Eastern Kentucky University’s College of Justice and Safety. The conference focused on the state of Kentucky’s criminal justice system and sought to bring stakeholders from all corners of the criminal justice system under one roof for dialogue and consensus on systemic reform. Attendees heard about a range of issues, prominent among them the potential for misidentification by eyewitnesses to crimes.

Audience members were moved to tears as Jennifer Thompson-Cannino, a crime victim who misidentified her rapist at two different trials in the 1980’s, described her feelings of re-victimization when she learned that flawed eyewitness identification procedures led her and the police to the wrong man. She told listeners that her misidentifications placed an innocent man, Ronald Cotton, in prison for over a decade. (DNA testing years later exonerated Mr. Cotton and a hit in the national DNA databank identified the true perpetrator, Bobby Poole.) Ms. Thompson expressed her feelings of guilt and horror after she learned how her inadvertent misidentification had created another victim, and described how her experiences drove her to become a devoted crusader to reform identification procedures.

Ms. Thompson-Cannino was followed by Gary Wells, an academic whose life’s work has focused upon the science of misidentification. Much of his research addresses the fallibility of human memory and its susceptibility to inadvertent or deliberate influence. Professor Wells described the simple, but effective reforms that are necessary to stem the tide of misidentifications in Kentucky and across the nation. These reforms can be trusted to work; they are grounded in a large body of peer-reviewed research that has been conducted over the past quarter century by respected social scientists.

These improved practices – shown to enhance the accuracy of eyewitness identifications – have been embraced by a number of jurisdictions across the nation. Just last year, laws were passed in five states to improve the reliability of eyewitness evidence. The most comprehensive of these laws came out of North Carolina, which included all of the major reform recommendations put forth by the Innocence Project. A similarly comprehensive bill stands before the House Judiciary Committee today in Kentucky, the provisions of which are bolstered by a strong and deep body of scientific literature.

HB 298 includes the following reforms:

– the blind administration of the eyewitness identification procedure;

– the provision of instructions to the eyewitness;

– the appropriate selection of non-suspect, or filler, photographs/individuals;

– taking confidence statements upon identification;

– the video-recording of the entire procedure; and

– the sequential presentation of line-up members to the eyewitness.

It is our hope that legislators will heed the lessons of wrongful conviction, and place robust science and experiential support above resistance to change. After all, traditional lineup methods are not the product of either scientific lessons or systemic validation. The unreliability of conventional eyewitness identification procedures undermines the effectiveness of public safety nationwide – and as importantly, the public faith therein. It bears repeating that eyewitness misidentification has contributed to more than three-quarters of the nation’s wrongful convictions proven through DNA testing.

The problem is well established, as are the solutions. I am testifying in Kentucky to help their legislature understand what the Innocence Project has learned – through deep study, and more importantly, through the reality of DNA exonerations – about the value of reforming their eyewitness identification procedures.

William Gregory, a Kentucky man whose innocence was proven through DNA testing, knows firsthand about the tragic implications of flawed eyewitness identification procedures; he spent seven years in prison for a crime he did not commit after two crime victims misidentified him.

Passage of HB 298 will not only protect the public and enhance Kentuckians’ confidence in their criminal justice system – it will also prove to Mr. Gregory that his suffering was not in vain.