To prevent wrongful convictions, California considering new eyewitness lineup standards


Ricardo Aguilera identified a teenager with a bald fade haircut and a mustache as the drive-by shooter who fired a bullet into the back of his head. He picked the potential suspect out of a photo lineup of 10 people. But the picture was at least eight years old. And several of the other images did not match his description of the assailant.

Aguilera pointed to Rafael Madrigal, then 25 years old, who spent seven years in prison as he struggled to prove he hadn’t been near the crime scene.

Now, two state lawmakers have introduced legislation to set new statewide standards for officers conducting live and photo lineups for eyewitnesses. Misidentification in cases such as Madrigal’s, they say, leads to wrongful convictions and allows the guilty to walk free. But the bill could face opposition from law enforcement officials who have argued they should be able to set policies for their agencies.


Under Senate Bill 923 by state Sen. Scott Wiener (D-San Francisco) and Assemblyman Marc Levine (D-Marin County), police and sheriff’s departments would have to follow new procedures based on methods that national researchers have found improve accuracy, and that have been adopted by federal law enforcement agencies.

“A fair and equitable justice system must have the strongest policies in place to ensure that we correctly identify people who commit crimes,” Wiener said in a statement. “Requiring evidence-based standards for eyewitness identifications will help keep innocent people out of jail while still allowing public safety officials to do their jobs.”

Among the practices law enforcement agencies would have to use is “blind administration,” lineups that must be supervised by officers who don’t know the suspect’s identity to prevent them from giving suggestions to an eyewitness.

Others require officers to tell witnesses that a suspect might not be in the lineup and that they take statements from witnesses articulating how confident they feel in their identification choices. Under the guidelines, officers must also videotape the process and ensure all people in the photos, including “fillers,” or those who are not suspects, match a witness’ description of a defendant.

At least 19 states have adopted similar procedures for eyewitness identification through state legislation or because of court orders. In California, counties such as Alameda, San Francisco, Contra Costa and Santa Clara have implemented them. But no statewide standards exist, even as mistaken identity has helped lead to convictions in 15 out of 23 cases in which people were later cleared by DNA evidence, according to the National Registry of Exonerations.

At least four proposals to require law enforcement agencies to change their eyewitness practices have failed in Sacramento since 2006. Former Gov. Arnold Schwarzenegger vetoed two of the proposals, saying they gave the state too much authority in crafting policies that should be developed at the local level. Others have failed passage in legislative committees.

Supporters of Wiener and Levine’s bill say they hope law enforcement agencies and Gov. Jerry Brown, who has sought to overhaul the state’s criminal justice system in recent years, will be more amenable to the idea this time around as the recommended eyewitness practices have been proven to work and adopted by officers nationwide.

“This is as much about ensuring that correct convictions are not challenged as it is about ensuring that wrongful convictions don’t occur,” said Alex Simpson, associate director of the California Innocence Project.

Madrigal, who was exonerated in 2009, was 25 and a soon-to-be father of three when he was sentenced to 53 years in prison for attempted murder in the 2000 shooting that almost took Aguilera’s life.

He had what should have been a strong alibi: He was at work at a Rancho Cucamonga manufacturing plant an hour away, the only employee who knew how to handle one of the machines in the production line.

But court records say Aguilera and two teenage witnesses picked Madrigal’s photo out of the lineup. One teen said she chose it because he was the only one with a goatee, though the other described the shooter as having a long “Fu Manchu” mustache.

The photo had been taken by an officer years earlier, when Madrigal, who was never in a gang, lived in what was known as gang territory in East Los Angeles. Simpson said his case shows how powerful eyewitness identification evidence can be in court. Madrigal has not been compensated by the state for his wrongful conviction.

“We are still trying to prove my innocence because of that photo array,” Madrigal said.

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