Hawaii Reviews Identification Reforms
The Hawaii Senate Ways and Means Committee will hold hearings today on Senate Bill 2304, a bill that would institute best practices for eyewitness identification reform. An op-ed by Virginia Hench, the Director of the Hawaii Innocence Project originally appeared in Monday’s
which underscored the significance of such reforms. Read the op-ed
The lineup – long a mainstay of police departments and courtroom dramas – is in serious need of an upgrade. Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in 75% of the 289 convictions overturned through DNA testing to date. Sadly, many police departments are still using outdated identification procedures that greatly increase the likelihood of a witness identifying the wrong person.
Alvin Jardine spent nearly 20 years in prison for a 1990 burglary and rape which he did not commit. Although he always maintained his innocence, Jardine was convicted in 1992 after two previous trials ended in hung juries. His convictions were finally tossed last January after DNA tests revealed that DNA evidence from the crime scene came from an unknown man – and not Jardine.
Decades of strong social science have proven that the human mind is not like a video recorder; our memories are not recorded exactly as we see them, and the process of recalling them is not like playing back a recording. Contrary to popular belief, a witness who is absolutely certain is no more likely to be accurate than a witness who is less certain. Witness memory is fragile, and easily contaminated. Like any other crime scene evidence; identifications based on witness memory must be collected according to best practices, preserved carefully and retrieved methodically, or the memory can be contaminated. Once contaminated, the true memories are over-written, and can no longer be retrieved.
The problem with traditional police identification procedures is that witnesses are easily influenced by the officers conducting the lineup. Witnesses are naturally eager to identify the perpetrator, and the witness will unconsciously pick up on verbal and nonverbal cues from the officer administering the lineup as to which is the suspect, even when the officer consciously tries to avoid influencing the identification.
The good news is that there are simple, low-cost reforms that can greatly reduce the number of misidentifications, without impairing accurate identifications. Through decades of social science research, scientists now have a much better understanding of how memory and identification work. From this knowledge the best practices for identification procedures have evolved, leaving behind some of the misconceptions of the past.
For example, it is now known that the risk of misidentification is sharply reduced if the police officer administering a photo or live lineup is not aware of who the suspect is. The witness viewing a lineup should be told that the perpetrator might not be in the lineup, that the officer administering the lineup does not know which person is the suspect, and that the investigation will continue regardless of the lineup result.
These reforms have already been implemented or disseminated in Connecticut, New Jersey, Ohio, Texas, North Carolina, and Wisconsin. Law enforcement in these state, though initially skeptical, have come to embrace them after seeing how effective they are.
The Hawaii Senate Ways and Means Committee will hold hearings on Tuesday on Senate Bill 2304, which would codify these best practices. The justice system demands that evidence be reliable before someone’s liberty is taken away. Eyewitness evidence is no exception.
Virginia Hench is a Professor of Law at the University of Hawaii School of Law and is the Director of the Hawaii Innocence Project (HIP), an organization that provides free legal assistance to Hawaii prisoners with substantiated claims of actual innocence in seeking exoneration, including investigating and obtaining DNA testing. HIP also studies the major causes of wrongful conviction and educates students, attorneys, and the public on how they may be minimized. The views expressed in this op-ed are those of the author.
Hawaii Senate Bill 2304 passed the Senate Ways and Means Committee unanimously.
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