Have the Eyes Had It?
Is our eyewitness identification system sending innocents to jail?
How did our eyewitness identification system manage to paint a detailed picture of the wrong face in Jennifer Thompson's mind while somehow completely erasing the right one? Wells and Quinlivan's paper suggests a host of tricks the mind can play, ranging from incorporating innocent "feedback" from police investigators, to increasing certainty in one's shaky memories that become reinforced over time.
Add to that Thompson's determination to regain control over her life, and her need to believe that the justice system was just, and it would have been doubly hard for her to look at a police lineup that, as it happened, did not include an image of the real rapist and walk away. To hear Thompson and other victims tell it, being part of a system that identified and ultimately convicted the wrong man became another form of victimization, and for that reason alone the system needs to be reformed.
The problems with the eyewitness identification system cannot be laid at the feet of crime victims any more than they can be blamed on police investigators. Wells' argument for reforming our eyewitness identification system is that the incentive for the police to subtly nudge our memories goes not only uncorrected by the justice system, but sometimes is rewarded by it. Wells wants the Supreme Court to revisit the scientific assumptions underpinning Manson v. Brathwaite, which allows such identifications to come into a courtroom as long as the identification is "reliable."
Whether or not the John Roberts court wishes to take up the issue of innocent prisoners—there is, for instance, a case now percolating through the New Jersey courts testing the scientific premises of Manson—a few states and cities have used innocent exoneration scandals to rethink their eyewitness identification practices in ways that would begin to restore the credibility of such evidence. Proposed changes include showing victims photos sequentially, explaining to the victim that the perpetrator may not be included in the lineup, and ensuring that whoever conducts the lineup has no knowledge of which person is the actual suspect.
This is not an issue that tracks the usual pro-prosecution, pro-defense divide. Mostly, police departments don't change their eyewitness identification procedures simply because there is no big loud constituency demanding that guys in lineups be treated more fairly. But some of the most zealous reformers of the current eyewitness identification process are lifelong conservatives who recognize that the credibility of the whole justice system is on the line each time an innocent man goes to jail. That's because when that happens, a guilty man often walks free.
A version of this article appears in this week's issue of Newsweek.
Dahlia Lithwick writes about the courts and the law for Slate.
Illustration by Rob Donnelly.