News 08.08.16

Nebraska Latest State to Achieve Eyewitness Identification Reform

By Nick Lurie-Moroni

Nebraska is among a growing number of states to have adopted eyewitness identification reform, Tracy Hightower and Tricia Bushnell, of the Nebraska Innocence Project and Midwest Innocence Project, respectively, wrote in an op-ed published this weekend by the Lincoln Journal Star.  This is a major milestone because eyewitness misidentification is the number one contributing factor to wrongful convictions proven by DNA evidence.

There are currently 18 states that have implemented eyewitness identification reform— through legislation, court rule or substantial voluntary adoption. This year, in Montana, law enforcement training entities worked with the Montana Innocence Project on trainings for officers on eyewitness identification best practices. Surveys sent out following those trainings revealed that 70 percent of the state’s population is now served by law enforcement agencies that have written eyewitness identification policies that contain best practices.

And in Massachusetts, the majority of the state’s population is served by departments that have adopted best practices; this occurred after the Massachusetts Association of Chiefs of Police published an eyewitness identification policy, which was adopted by many agencies, and the state’s Supreme Judicial Court issued jury instructions requiring that jurors be warned about the risks of misidentification and outlining the specific practices designed to protect against the phenomenon. Additionally, last year, Colorado passed a law requiring eyewitness identification reform. Reform efforts are also underway in a number of other states.

Eyewitness identification reform has long been a priority of the Innocence Project and Innocence Network, and significant progress has been made. As recently as four years ago, only six states had implemented eyewitness identification reform, and now 18 states have done so.

These measures are part of an increasing trend and desire on the part of law enforcement to have in place proven best practices that will protect misidentification. The phenomenon played a role in nearly 71 percent of the nation’s 343 such cases.

In Nebraska, as in the jurisdictions cited above, the changes in state law were the culmination of collaboration between innocence organizations, law enforcement entities and lawmakers. As Hightower and Bushnell wrote:

Recognizing the importance of protecting the innocent and detecting the actual perpetrators, the Nebraska Commission on Law Enforcement and Criminal Justice, and the Nebraska Law Enforcement Training Center set up training for officers and distributed materials to help agencies adopt best practices. In addition, Sen. Patty Pansing Brooks (Lincoln) authored a law requiring every police and sheriffs’ department in Nebraska to have a written eyewitness identification policy that includes minimum standards created by the commission. . . .The commission approved a protocol, developed by the attorney general’s office and Nebraska Innocence Project, which reflects scientifically supported best practices, [meaning] that every police and sheriff’s department will conduct lineups in a way that prevents mistakes and leads to more reliable evidence.

The best practices that are now law in Nebraska and elsewhere require an independent lineup administrator who is not aware of the suspect identity, instructions for the eyewitness that the real perpetrator may or may not be present, placement of non-suspect fillers in the lineup that match the witness’s description of the suspect and the collection of a confidence statement immediately following the identification. The practices are recommended by the Innocence Project and many other organizations.

Related: Innocence Project Salutes Alaska’s New Framework for Eyewitness Identification Evidence

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