Witness Misidentification
By: LawInfo
Published: 05/2009
Witness Misidentification
According to the Innocence Project, a national organization dedicated to overturning wrongful criminal convictions through the use of DNA testing, witness misidentification was the cause of more than 75% of the wrongful convictions that were later overturned using DNA evidence. For various reasons, witness misidentification is a very real human error that can result in people being convicted of crimes that they did not commit, yet eyewitness testimony continues to be one of the mostly commonly used – and commonly believed - forms of evidence in criminal proceedings.
What Causes Witness Misidentification?
Decades of social science research have shown that eyewitness misidentifications often occur. The human memory does not work like a video recorder; it is impossible for most people to recall every detail of a particular moment in time, especially when that moment may involve witnessing an event that occurs quickly, relatively far away from the viewer, or in poorly lighted conditions. Many factors play into eyewitness misidentification, including what experts call estimator variables and system variables. Estimator variables are those influences that are uncontrolled by the criminal justice system, such as lighting, stress, and the races of the suspect and the witness. On the other hand, system variables also affect eyewitness accounts, which are factors that can be controlled by the criminal justice system. System variables include the methods by which law enforcement performs lineups and photo arrays of suspects, so as to minimize the potential for misidentification by eyewitnesses. A review of the many cases of persons who are wrongfully convicted on the basis of eyewitness testimony, and who were later exonerated by DNA evidence, proves the point that witness misidentification is a common factor in many wrongful convictions.
How Can Witness Misidentification Lead to a Wrongful Conviction?
Eyewitness misidentification can potentially lead to wrongful convictions in a number of ways. First, when an eyewitness has initially misidentified a perpetrator of a crime, law enforcement officials become distracted, and lose precious time in pursuing the wrong person, rather than the true perpetrator. Next, eyewitnesses to crimes, when faced with line-ups or photo arrays, typically receive some cues from law enforcement officials that may identify the suspect. Plus, when an eyewitness is shown several photographs or persons, he or she may tend to choose the person who most looks like the person witnessed at the crime scene, rather than a comparison based on his or her memory of the crime. Finally, despite evidence to the contrary, judges and juries tend to believe eyewitnesses, particularly when they are innocent bystanders and/or upstanding citizens who truly believe that they have identified the correct person.
A recent Newsweek article on witness misidentification highlights the truly tragic consequences of this altogether too common occurrence. Timothy Cole was convicted in Texas in 1986 of aggravated sexual assault after being repeatedly identified as the perpetrator the victim. In 2009, DNA evidence cleared Cole, and proved that another defendant, who had also confessed to the crime and later died in prison, was the actual perpetrator of the crime. Not only was Cole wrongfully convicted of a violent crime on the basis of eyewitness conviction, but he also lost over twenty years of his life to unwarranted incarceration. (Newsweek, March 2009)
Overturning a Wrongful Conviction Based on Witness Misidentification
Eyewitness misidentification may be a basis for overturning a wrongful conviction in some circumstances, particularly if there was little other evidence in support of your conviction, or if other evidence in your favor was not taken into account or brought forward in your trial. For instance, in older convictions, DNA evidence was not utilized due to a lack of technology. Now, however, old evidence can be retested using DNA, which has resulted in exonerating people who were convicted on the basis of witness misidentification.
The appeals process in criminal cases is designed to ensure that the correct person is convicted of the crime in question. Every state has procedures for the review of a criminal conviction, which typically starts with reconsideration of the conviction by the trial judge. This request for review is initiated by filing a motion with the trial court, which sets forth the reasons that you believe your conviction was erroneous, as well as any applicable law in support of those reasons; in the case of witness misidentification, your motion would explain why and how the witness made a mistake in identifying the wrong person.
If your request for review by the trial judge is unsuccessful, you still have recourse through the appeals process. When you file a formal appeal, you are asking a higher court, i.e. your state court of appeals, to review your case to see if a mistake was made in terms of your conviction. A mistake that might warrant overturning your conviction could include an error by the trial judge in applying the law, that certain evidence was not properly considered or given enough weight, or that the evidence showed that the witness very well may have misidentified the perpetrator of the crime. If the appeals court rejects your appeal, and thus upholds your conviction, you still can further appeal your case to the highest court in your state, such as the state supreme court.
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