Mistaken eyewitness identification is more common, but eyewitnesses may
also lie and provide perjured testimony, too.
Eyewitness Error
- Human memory—particularly in stressful situations—is not perfect. And, when a witness and/or victim are a different race than the person committing the crime, the accuracy of eyewitness identification decreases even further.
- Several variables contribute to eyewitness identification errors: length of time a witness is shown the picture of a potential suspect, how far away the picture/lineup is from the witness, and the lighting under which the identification process occurs.
- Eyewitness identification may also be unreliable when the identification process is suggestive. That is, the person questioning the witness may, through the questions, identify which person is the “right” one. Suggestions about which suspect is the “right” one may be made verbally or through conduct—investigators can unknowingly make suggestions through tone of voice or other non-verbal conduct or gestures.
When engaging in the identification process with a witness—whether in a lineup or in a photo array—investigators should show potential suspects to the witness/victim sequentially rather than as a group.
As the witness/victim sees each photo, he or she should be asked whether the witness recognizes the person as the one who committed the crime.
The law enforcement representative should not offer feedback or suggestion about which answers are “right.”
In fact, law enforcement conducting the sequential line-up should not even know the identity of the prime suspect. This type of line-up where the officer does not know the identity of the prime suspect is called “double-blind.” Neither party—the person conducting the questioning nor the victim/witness—knows who the prime suspect is so the
victim/witness—knows who the prime suspect is so the conducting the questioning nor the victim/witness—knows who the prime suspect is so thequestioning is not guided in that direction.
Finally, any line-up or identification process should be recorded and fully documented. The witness’s confidence level may thus be recorded, along with any potential suggestions made that could have affected the identification process.
Prosecutors should demand that these procedures—(1) a sequential line-up rather than seeing all the possible suspects at once, and (2) engaging a law enforcement officer who does not know who the actual suspect is to conduct the line-up— are followed in their cases. Likewise, defense counsel should be sure to ask for any evidence or recording of these procedures and question how any line-up or photo array was conducted.
Witness fabrication must be questioned in all cases, but particularly in homicide cases where there is more pressure to convict someone of the crime.
Test the witness. Question about specific details of the crime that only a witness might know, if possible. Whether on the defense or on the prosecution, do everything you can to ensure your witness is actually telling the truth.
Oftentimes, witnesses may be presented at trial who are in the criminal justice system themselves, either facing potential time for a crime or already serving time for a crime. These “jailhouse informants” may offer testimony that the defendant admitted to committing the crime, or that the informant saw the defendant commit the crime.
A 2004-2005 survey conducted by Northwestern University School
of Law found that of the 111 death row exonerations since capital punishment was resumed in the 1970s, informant cases accounted for 45.9% of those. Informants were deemed “the leading cause of wrongful convictions in U.S. capital cases — followed by erroneous eyewitness identification testimony in 25.2% of the cases, false confessions in 14.4%, and false or misleading scientific evidence in 9.9%.”
• Although these witnesses can assist in the prosecution of crimes, prosecutors should disclose any past criminal record, pending charges, or any plea agreements applicable to any jailhouse informant.
• Prosecutors using testimony of jailhouse informants should ensure there is other corroborating evidence of the crime in the case, rather than simply relying on the jailhouse informant alone. Specifically, if an informant knows details only known by the suspect or police, chances are, the informant is telling the truth. Likewise, defense attorneys should make sure to conduct thorough background checks on any witness called to testify against a client to ensure the jury receives all relevant information to assess a witness’s reliability.
• In certain situations, informants could be wired to record the incriminating statements of suspects. This practice would be especially practical in jails or prison environments.
• Law enforcement officers should electronically record their conversations with jailhouse informants. After the conversation, law enforcement should provide copies of the recordings to the defendant/counsel. Recording these interviews is simply an extension of the recording that already occurs for interviews of the criminal suspect themselves.
As an initial matter, it should be recognized that prosecutors have a very tough job, seek to promote justice, and as a general rule, the vast majority of prosecutors act ethically in carrying out their duties. Nevertheless, through accident, oversight, or intentional conduct in rare circumstances, prosecutors may fail to turn over exculpatory evidence to a defense attorney.
If a prosecutor fails to disclose exculpatory evidence to the defense, who is to know? Or if a prosecutor delays disclosure of evidence helpful to the defense until the defendant has accepted an unfavorable plea bargain, no one will be the wiser. Or if prosecutors rely on the testimony of cops they know to be liars, or if they acquiesce in a police scheme to create inculpatory evidence, it will take an extraordinary degree of luck and persistence to discover it — and in most cases it will never be discovered.3
Misconduct also arises with the introduction of false evidence; improper argument; discrimination in jury selection; interference with a defendant’s right to representation; improper communications with a judge or juror; improper use of the media; failure to train subordinates and maintain systems of compliance; and failure to report a violation of the rules of professional responsibility.
In a study of convictions overturned by DNA evidence,
researchers identified prosecutorial misconduct as
Prosecutors should ensure that all potentially exculpatory evidence has been turned over to the defense. “Having strict rules that prosecutors must follow will thus not merely avoid the risk of letting a guilty man free to commit other crimes while an innocent one languishes his life away, it will also preserve the integrity of the prosecutorial process by shielding principled prosecutors from unfair competition from their less principled colleagues.”4
In addition to implementing strict rules, district attorney’s offices should create accountability through self-policing. Given the inherent difficulty with self-policing, however, district attorney’s offices should also consider working with third parties to conduct external checks or audits.
Defense attorneys should ensure they have asked for all exculpatory evidence and press the issue with a prosecutor if he or she believes something should be turned over. If an attorney learns of misconduct, he or she should report the misconduct to the state bar.
When the bar learns of misconduct, the bar should review and address it appropriately.
In 1852, John Mackay, an author and thinker, wrote:
This tendency is as true now as it was then.
When investigators and prosecutors focus in on a particular suspect, there is a tendency to pay attention only to evidence that supports their theory and ignore evidence that may exculpate the suspect (or point to other possible suspects). Once there is a suspect or investigators have a hunch, investigators may be less likely to consider alternative theories for the crime.
Part of the problem is the age-old human tendency toward “confirmation bias.” Numerous scientific studies have been conducted showing the human tendency to search for, analyze, interpret, favor, and remember information that confirms one’s point of view or hypothesis, a tendency called “confirmation bias.” The problem is cyclical: An investigator fixates on evidence implicating a particular suspect, which confirms his theory of “who done it,” which leads him to gather more evidence supporting his theory, which he then interprets through the prism of his theory.
The biggest mistake that confirmation bias yields is our tendency to favor our earlier theory of the case and ignore or explain away potentially exculpatory evidence that we might have seen differently before our theory developed.
The problem can manifest throughout an
investigation in the following ways:
Indeed, some authors have concluded that confirmation bias may be the single most problematic aspect of human reasoning, deserving attention perhaps above all others.
This tunnel vision can happen to both prosecutors and defense attorneys. Prosecutors may focus on particular evidence that seems so compelling that they ignore blatant exculpatory evidence. Conversely, defense attorneys may believe a prosecutor’s case is so solid, the defense attorney buys into the biased view of the evidence and does not fully and thoroughly investigate the case.
Be aware of your human tendency
to fall for confirmation bias.
Because we do not have time machines, the biggest way to fight confirmation bias is to be aware that we are humans and we all tend to fall for confirmation bias. Prosecutors, investigators, and defense attorneys should keep an open mind and consider all the evidence in a particular case. They should be careful not to place too much weight on earlier-found evidence they believe implicates a suspect, especially when potentially exculpatory evidence may show up at any time.
Try attacking your theories
throughout your case.
If we set down the blinders or binoculars of confirmation bias, we may be able to test our theories, like we were taught in elementary school. In other words, everyone involved in an investigation can counterbalance tunnel vision by attacking underlying hypotheses. Instead of asking: What other evidence might be out there that would support my belief? Or does this evidence support my belief? Ask yourself: What kind of evidence would I expect to see if my belief were incorrect? How might this evidence disprove my theory of the criminal?
A painfully
simple
example:
Let us pretend our hypothesis is that our prime suspect in a fire investigation is a female. Confirmation bias, and a desire to obtain confirmatory evidence, would lead us to ask eyewitnesses a question like, “Was the person you saw at the scene a female?” When we would get equally helpful information by asking, “Was the person you saw at the scene a male?” Our tunnel vision leads us to search for affirmative (“yes”) answers to our already-developed theory to confirm that theory, rather than testing the theory by asking questions where an affirmative answer might discredit the theory.
Test your theories on others by giving them an “objective” explanation of the evidence for and against. One major point to keep in mind is that an investigation tainted by tunnel vision is quite literally the opposite of the adversarial system that encourages opposing parties to challenge evidence or, at a minimum, provide their own interpretation of the evidence. Try bringing your mentor, friend, or spouse an objective explanation of the evidence you have and ask them what they think. You may be surprised by their unbiased view of the evidence. If investigators ask themselves what kind of evidence would a defendant (or defense attorney) want to look for during the investigation to disprove my theory, they may find themselves surprised to find their initial theory needs to be modified or thrown out altogether.
Attorneys on both sides of the “vs.” should fully investigate every case and constantly question the evidence for and against guilt. Both sides should also question whether there was any potential investigative bias in the case and should make it clear to investigators that they want a full investigation of the underlying evidence, not simply an airtight case riddled with confirmation bias.
Finally, attorneys should always continue to raise questions to ensure the right person is being identified as the suspect/defendant, and try intensely to look at evidence without a particular conclusion in mind.
While it may not be easily understood by most, innocent people can falsely confess to crimes.
Some of the factors that may contribute to false confessions:
Duress/Length of the Interrogation
People under stress (e.g., suspects in a serious crime) seek a connection with others for comfort and support. Depriving a person of that connection for an extended period of time can make that person more likely to falsely confess to end the isolation from others.
In a 2004 study of 125 false confessions, it was found that the mean interrogation time for those confessions was 16.3 hours. 84% of those false confessions were longer than 6 hours.
Intoxication/Diminished Capacity/Mental Impairment
Presentation of False Information
Misinformation can render people vulnerable to manipulation. This can lead to a false confession.
Ignorance of the Person’s Rights Under the Law
Threat of a Harsh Sentence
The threat of a severe punishment may, when combined with other factors, have a strong inducement effect on a false confession.
Desire for Leniency
“Compliant false confessions” can often be attributed to a desire by the accused to sleep, eat, make a phone call, go home, or feed a drug habit.
The desire to bring the interview to an end can have an especially serious effect on the young or mentally disabled.
Misunderstanding the Situation
Factually innocent people are more likely to believe that truth and justice will prevail, making them more likely to be forthcoming and truthful with investigators.
People with no record of criminal activity are most likely to waive their rights and submit to questioning, sometimes for an extended length of time, having faith that they have nothing to worry about.
Investigators may be under pressure to obtain a confession, particularly in extremely horrific or high-profile crimes.
Many false confessions occur when the police officer has prejudged the guilt of the suspect and the questions flow from that perspective. This is where confirmation bias can have a serious effect on contributing to false confessions.
Psychologically, the person being questioned by law enforcement may then confess under this pressure out of belief for leniency or fear of harsh repercussions.
In particular, young persons or persons with mental illness or disability are more likely to falsely confess.
- Children and teens are not as cognitively developed as adults. That is, children and teens are less mature than adult suspects. This immaturity manifests itself in impulsivity and a decreased ability to consider long-term consequences.
- This lack of maturity makes children and teens especially susceptible to the risk factors discussed above.
- The same things that make young people vulnerable to false confessions applies equally to the mentally ill or mentally disabled.
Electronically recording or videotaping interrogations is a beneficial way to hold investigators accountable and for good investigators to show they have acted appropriately.
- In a recording, investigators are less likely to make threats, promise leniency, or engage in suggestions to obtain the answers desired from the suspect.
- Police agencies should develop a uniform policy for the preserving of interrogations and confessions.
Jurors, in particular, can more adequately weigh the significance of any confession when they can see the actions of both the investigator/interrogator and the conduct of the defendant.
- Jurors may question interrogations that involved threats, coercion, or suggestive questioning, and weigh the confession evidence accordingly.
- Conversely, jurors who can witness an interrogation that was correctly done without coercion or suggestion (and a confession resulted), are more likely to be convinced of guilt.
- In addition, jurors should be allowed to consider the absence of any recordings of the interrogation, should law enforcement fail to record or preserve a record of the interrogation.
Law enforcement should be educated about and be especially mindful of the contributing factors to a false confession when questioning a young person or someone who has a mental disability.
Several types of “sciences” have been relied upon to convict persons of crimes. Arson re-creation, fingerprinting analysis, bite-mark testimony, hair comparison, and serology analysis, among others, have come under attack and in some cases, may be unreliable.
Although hair comparison analysis has been admitted into evidence in many courts, more recent research raises substantial doubts about its accuracy. Forensic determinations are a product of human procedures that can easily be influenced by unintentional, human biases or simple human error.
Serology analysis, which seeks to establish the probability that a perpetrator and suspect share the same blood type may also lead to wrongful convictions in some cases. Serology analysis does not specifically identify suspects, but only identifies whether blood types of blood on a victim and the blood type of a suspect are similar.
Prosecutors should build cases on reliable, tested scientific analysis and question their own experts to ensure accuracy. When possible, and DNA evidence exists for a particular crime, prosecutors should seek to have evidence tested for DNA matches.
Likewise, defense attorneys should question any science and the methods utilized in any particular case.
Judges should carefully examine any expert testimony to
ensure Daubert standards have been met and the
techniques are sufficiently reliable that the evidence may
be admitted before a jury.
The forensic community should develop error
detection programs to reduce error in techniques or
eliminate techniques that prove unreliable.
For some cases, defense cancel fails to provide adequate representation.
The Sixth Amendment to the United States
Constitution provides that
As a result, the United States Constitution
guarantees criminal defendants a right of
representation during a criminal prosecution.
This Constitutional right to counsel necessitates that counsel must act reasonably under prevailing professional standards. Strickland v. Washington, 466 U.S. 668, 688 (1984). Holding defense counsel to this standard ensures that criminal defendants obtain a fair trial. Id. at 689.
The National Legal Aid and Defender Association has identified four problems that lead to ineffective assistance of counsel: (1) excessive caseloads, which prohibit significant attention to each case; (2) lack of enforceable standards for defense attorneys; (3) underfunding that prohibits defense attorneys from competing with the State where the State generally spends three times more on the prosecution than a defense; and (4) lack of independence from political pressures.
A defense attorney must represent his or her client to the fullest extent possible. Part of this responsibility to fully and zealously represent a client includes the duty to fully investigate every case, and adequately prepare for and attend hearings.
Ineffective assistance of counsel cases that result in wrongful convictions may arise where defense counsel misses court dates or filing deadlines, sleeps or even makes innocent mistakes that can have significant consequences.
Sometimes through a lack of diligence, defense attorneys may fail to properly investigate cases or file necessary pleadings, resulting in the failure to present an adequate defense on behalf of his or her client.
> A defense attorney must fully investigate every case. Defense attorneys cannot afford to be lazy or fail to question every case. There is too much at risk. Adequate investigation and thorough trial preparation is required to provide every criminal defendant with adequate representation.
> If a defense attorney is too busy to adequately investigate the case (including employing the resources required, such as private investigators, experts, or other attorney assistance), that defense attorney should not take the case. While funding continues to be a policy problem for many defense attorneys and public defenders, defense attorneys need to control their case load.
> Know your scheduling limits. Too much is at stake. Ultimately, the defendant is relying on you to provide them an adequate defense—even if other mistakes in the process occur along the way.