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Eyewitness Identification

  • The National Academy of Sciences issued a landmark report evaluating the scientific research on memory and eyewitness identification in October 2014. The report provides recommendations for improving police identification procedures and for how courts should handle eyewitness evidence. The report is available for purchase or free download here.
  • Misidentification causes more wrongful convictions than any other factor. According to the Innocence Project, misidentifications contributed to wrongful convictions of more than 75% of the over 230 people exonerated through post-conviction DNA testing (Innocence Project: "Reevaluating Lineups: Why Witnesses Make Mistakes")
  • Factors that may affect the accuracy of eyewitness identification are not typically within the common knowledge of a jury. These factors include:
    • System variables - those factors which can and should be controlled by the criminal justice system, such as:
      • Type of line-up used
      • Selection of fillers
      • Blind administration
      • Communications with witness before and after identifications
    • Estimator variables - those factors which cannot be controlled by the criminal justice system, such as:
      • Own-race bias
      • Exposure duration
      • Masking of cues to hair and hairlines
      • Weapon focus
      • Stress experienced by eyewitness
      • Passage of time between crime and identification
    • Attorneys considering challenging eyewitness identification should consult Chapter 3 of Alyson A. Grine & Emily Coward, Raising Issues of Race in North Carolina Criminal Cases. Procedures for Challenging Eyewitness Identification Evidence provides detailed information on motions to suppress, voir dire of witnesses, jury voir dire, working with experts, cross-examination, and other topics.

    In our own backyard: Innocent North Carolina man wrongfully convicted

    Ronald Cotton was wrongfully convicted of two rapes and burglaries in 1985 and 1987. Although innocent, Ronald Cotton served over 10 years in prison, primarily due to erroneous eyewitness identification. DNA testing in 1995 revealed that evidence from one victim did not match Cotton, but instead matched with another man who had confessed to the crime. Mr. Cotton was pardoned by the governor of North Carolina in 1995.

    To learn more visit: Innocence Project: Know the Cases and see Rethinking Reliance on Eyewitness Confidence by Neil Vidmar, James E. Coleman, Jr., and Theresa A. Newman of Duke University Law School.

    "A major factor contributing to the high incidence of miscarriages of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification...There is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial." - Supreme Court Justice William Brennan, United States v. Wade (1967).

    N.C. Statute, Case Law and Briefs

    For crimes committed on or after March 1, 2008, the Eyewitness Identification Reform Act (EIRA) creates procedural guidelines for eyewitness identifications during photo lineups and live lineups. This legislation is one of the most comprehensive pieces of eyewitness identification reform legislation in the country and is codified at N.C. Gen. Stat. 15A-284.50 through 15A-284.53 (2007).

    The test in North Carolina for identification procedures prior to the enactment of the EIRA was stated in State v. Rogers, 355 N.C. 420, 432 (2002) as follows: Whether an identification procedure is unduly suggestive depends on the totality of the circumstances. State v. Pigott, 320 N.C. 96, 99 (1987). A due process analysis requires a two-part inquiry. First, the Court must determine whether the identification procedures were impermissibly suggestive. State v. Fowler, 353 N.C. 599, 617 (2001). If so, "the Court must then determine whether the [suggestive] procedures created a substantial likelihood of irreparable misidentification." State v. Fowler, 353 N.C. 599, 617 (2001). In determining whether identification procedures are impermissibly suggestive, courts have considered such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty shown by the witness, and the time between the offense and the identification. Manson v. Brathwaite, 432 U.S. 98, 114 (1977).

    In State v. Rawls, 700 S.E.2d 112 (N.C. App. 2010), the Court of Appeals held that "show-ups" are distinct from line-ups, and, therefore, are not subject to the guidelines set out in EIRA. Rather, the court applied the North Carolina common law test for determining if the show-up was proper which is a two-step inquiry described above: (1) The court must determine whether the procedure was impermissibly suggestive, and (2) If the procedure is found to be impermissibly suggestive, then the court must determine whether the procedure "created a substantial likelihood of irreparable misidentification."

    • Defendant's Brief in Rawls
    • UNC School of Government Blog: "Showups Aren't Lineups"
    • See State v. Boozer (2011) where the NC Court of Appeals found the trial court properly denied the defendant's motion to suppress asserting that an eyewitness's pretrial identification was unduly suggestive and found no violation of the EIRA where the eyewitness identified the defendant by looking through the pages of The Slammer newspaper.
    • See State v. Vasquez-Guardo, (unpublished, 2011) where the NC Court of Appeals upheld State v. Rawls, concluding that EIRA does not apply to show-ups and found that the trial court did not err in admitting an in-court identification following the show-up identification.
    • On Nov. 29, 2012, the Oregon Supreme Court issued an important decision (State v. Lawson) which places the burden on the state to establish the reliability of the eyewitness identification and recognizes and requires courts to act in a manner consistent with the latest scientific research on eyewitness identification and memory. This opinion may be useful in NC cases involving show ups or where counsel is arguing for suppression on state constitutional grounds.

    For briefs on additional eyewitness identification issues, visit the Identification of Accused section of the Indigent Defense Services Brief Bank.

    Working with Experts

    Seeking expert knowledge regarding your case may be beneficial in three ways:

    • Before trial: to identify the critical issues that need to be addressed during litigation proceedings, as well as to determine all of the potentially suggestive factors of the eyewitness identification
    • To provide expert testimony at trial regarding any suggestive factors specific to the eyewitness identification of your client
    • To provide scientifically based expert testimony to explain the general factors affecting eyewitness identification, in order for the jury to have an understanding of the issues surrounding eyewitness identification

    Visit the database of experts to find the contact information for experts in this field.

    Expert testimony on eyewitness identification has been excluded in several cases, so counsel should be prepared for a challenge to its admissibility. Trial courts will weigh whether the proposed testimony is case specific and has probative value, and will consider such factors as whether the expert interviewed the eyewitnesses, visited the crime scene and observed the eyewitnesses' testimony at trial. See State v. Lee, 154 N.C. App. 410, 417 (2002), State v. Knox, 78 N.C. App. 493(1985), and State v. Cotton, 99 N.C. App. 615 (1990). Contact Sarah Rackley Olson for additional information regarding admissibility of eyewitness ID expert testimony.

    Articles and Other Resources