Commission Urges Changes in Use of Eyewitness Identifications

Times Staff Writer

A state commission on reforming the criminal justice system proposed significant changes Thursday in the use of eyewitness identification in California courts, citing problems, particularly with cross-racial identifications, that have led to exonerations of prisoners.

The California Commission on the Fair Administration of Justice, which is chaired by former California Atty. Gen. John K. Van de Kamp, cited statistics from the Innocence Project at the Benjamin N. Cardozo School of Law in New York that more than 77% of inmates cleared since 1989 were convicted based on mistaken eyewitness identifications.

Indeed, mistaken identifications were involved in nearly three times as many cases as the next most common factor, according to figures compiled by the Innocence Project.


In addition, a study published last year by researchers at the University of Michigan Law School found that mistaken eyewitness identification was involved in 88% of wrongful rape and sexual assault convictions.

A disproportionate number of the rape exonerations involved white victims misidentifying black suspects, the Michigan study said, suggesting that “the risk of error is greater in cross-racial identifications.”

“Research has consistently confirmed that cross-racial identifications are not as reliable as within-race identifications,” the commission’s report said.

The commission made a dozen recommendations, including changes in methods of witness identification using lineups or photo arrays.

The commission has no power to enforce new practices; local jurisdictions set their own policies.

But other jurisdictions, including Santa Clara County, have adopted them with positive results, the report said.


The recommendations are the first from the commission, which was created by the state Legislature “to study and review the administration of criminal justice in California, determine the extent to which the process has failed in the past,” examine safeguards and improvements, and offer proposals to make the system better.

Santa Clara University law professor Gerald Uelmen, the commission’s executive director, said he expected the 18-member commission to investigate false confessions, perjured testimony, mishandling of forensic evidence, withholding of exculpatory evidence and incompetent defense lawyers between now and Dec. 31, 2007, when the commission is to issue its final report.

The issue of problematic eyewitness identifications began to attract broad attention in the 1990s with the advent of DNA tests that cleared innocent people.

Standard police practice now is to ask witnesses to pick out suspects from lineups or from groups of half a dozen photos, known as “six-packs.”

In 1999, the U.S. Department of Justice’s National Institute of Justice published a guide saying that lineups and photo arrays were more reliable when presented by someone who did not know which person was the suspect, a procedure known as a “double-blind” identification.

It also recommended presenting individuals in a lineup or photo array sequentially, rather than simultaneously.


The commission suggested adopting the double-blind and sequential identification procedures.

Gary Wells, a psychology professor at Iowa State University, told the commission at a hearing last month that police officials using standard lineups or photo displays can inadvertently or deliberately telegraph to witnesses whom they want them to select.

David Angel, who heads the Innocence Project in Santa Clara County, said his county had adopted the double-blind and sequential procedures in 2002 without problems.

The commission, which includes prosecutors, defense attorneys, law professors, a judge, a rabbi and law enforcement officials, including Los Angeles Police Chief William J. Bratton and Los Angeles County Sheriff Lee Baca, unanimously agreed to recommend the double-blind procedure.

However, California Atty. Gen. Bill Lockyer and two district attorneys -- Jim Fox of San Mateo County and Gregory Totten of Ventura County -- issued a partial dissent on sequential lineups.

“The debate over the effectiveness of sequential lineups is not yet settled,” the prosecutors wrote.


“The sequential method appears to be particularly problematic in cases involving children and the elderly, cases involving cross-racial identifications, cases involving multiple perpetrators, and cases where a suspect has altered his or her appearance,” they wrote.

The three prosecutors also dissented from a recommendation that California jury instructions on eyewitness identifications “should be evaluated in light of current scientific research regarding cross-racial identifications and the relevance of the degree of certainty expressed by witnesses in court.”

The commission also called for legislation requiring the attorney general’s office to convene a task force to develop guidelines for new procedures and training in eyewitness identification.

The task force should report back to the Legislature within one year, the commission said.

The commission is scheduled to have its next major public hearing in Los Angeles on June 26 on the issue of false confessions.