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Eyewitness Identifications

October 09, 2018

By van der Veen, Hartshorn, Levin & Lindheim

We’ve all seen it on TV or perhaps in real life: a witness testifies that the defendant is the person who committed the crime and that he or she saw the defendant do it. On TV, the scene typically accompanies dramatic music and a forthright appearance that the defendant is obviously guilty.

While witness identifications are a powerful source of testimony and highly useful in securing a conviction, the unfortunate reality is that witness identifications are the leading cause of wrongful convictions. The reality is that people just aren’t good at remembering past details, frequently forget important characteristics of assailants, and often use prior understandings of people or situations to “fill in the blanks” of their memory. The result is possibly the greatest injustice to the legal system today – a false identification and therefore a false conviction.

The Supreme Court has wrestled with the problem of eyewitness identifications for decades. In United States v. Wade, the Supreme Court ruled that a post-indictment lineup was such a critical stage in a prosecution of a criminal offense that the presence of a defendant’s lawyer was required. 388 U.S. 218 (1967). In so doing, the Court noted that “[t]he identification of strangers is proverbially untrustworthy,” and “[a] major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses…” Therefore, simply how a prosecution presents a defendant may lead a witness to misidentify a perpetrator and cause a wrongful conviction.

In United States v. Brathwaite, the Supreme Court adopted a balancing test to determine the reliability of witness identifications. 432 U.S. 98 (1977). Factors of that test include:

  • Opportunity to view – the witness’s opportunity to view the assailant, which would include time, location, visibility, and prior history;
  • Degree of attention – The witness’s degree of attention, which would include the environment surrounding the witness, distractions (such as a TV, crowd, or other people), state of mind, training, or even whether or not the witness was intoxicated;
  • Accuracy – The accuracy of the description and whether it changed over time;
  • Certainty – The certainty of the witness in making the identification; and finally
  • Time Delay – The time between the crime and the eventual identification to police and prosecutors.

In 2011, in State of New Jersey v. Henderson, the Supreme Court of New Jersey expanded on the problems with eyewitness identifications, and also provided to legal practitioners a valuable resource for determining the veracity of eyewitness identifications. 27 A.3d 872 (NJ 2011). While the case is mostly about improper police procedures, Henderson nonetheless provided a valuable resource for determining the veracity of eyewitness identifications.

In that case, a victim was shot to death in an apartment hallway during the early morning hours of January 1, 2003. A witness to the murder did not speak to police until he was approached days later, stated that it was actually multiple perpetrators, and that the person who had shot the victim was a black male, aged 30, with a goatee.

Detectives showed to the witness eight photographs of different black men of similar age, facial features, and build. Although the witness was hesitant at first, and unable to pick a photo that matched his memory, after about 30 minutes he picked defendant from the photo array. At trial, it was revealed that the witness had smoked two bags of crack before the shooting; he and his girlfriend had consumed one bottle of champagne and one bottle of wine that night; he testified he did not get a “real good look” at the perpetrator; and the lighting where the shooting took place was “pretty dark.” Nonetheless, despite his earlier hesitation at identifying the murderer, and shaky questions of reliability, he had no trouble identifying the defendant at trial eighteen months later. A New Jersey Jury convicted defendant of reckless manslaughter, aggravated assault, and two weapons charges.

In overturning the convictions, the Henderson Court acknowledged that “misidentification is widely recognized as the single greatest cause of wrongful convictions in the country.” Further, “more than seventy-five percent of convictions overturned due to DNA evidence involved eyewitness misidentification… [t]hirty-six percent of defendants convicted were misidentified by more than one witness.” The Court also explicitly acknowledged two studies, one from London and another from California, where social scientists concluded that at least one third of eyewitnesses were incorrect in their identification.

Finally, much like the United States Supreme Court in Brathwaite, the New Jersey Court gave to the public an expanded list of additional factors that affect an eyewitness identification. These factors include:

  • Stress level of the witness in the event
  • Focus on a Weapon or Object used during the crime
  • Duration of the event and viewpoint of the witness
  • Distance and Lighting
  • Intoxication of the witness
  • Characteristics of the Perpatrator, such as whether they were wearing a disguise or had a mask
  • Memory decay
  • Race-bias

All this said, eyewitness identifications are a keystone to our judicial system. We rely on the identifications for nearly every crime possible. They are useful in ensuring that a guilty person is convicted. The use of these identifications is not likely to change – but public awareness of problems with eyewitness identifications and acknowledgment of their unreliability could bring about fairer trials and fewer wrongful convictions. Furthermore, if you are ever facing criminal charges, your attorney should be prepared to cross-examine the witness on the factors mentioned above, specifically: opportunity to view, degree of attention, accuracy, certainty, and time delay from the crime to the identification. Failure to do so could potentially cost you years in jail.

Grant P. Bloomdahl graduated from Temple University School of Law in 2018. Throughout law school he worked at van der Veen, Hartshorn, Levin & Lindheim focusing on criminal defense cases. Also during law school, he interned for the Honorable Susan Piekes Gantman of the Superior Court of Pennsylvania, the Defender’s Association of Philadelphia, the Federal Defenders of the Eastern District of Pennsylvania, and the Foundation for Individual Rights in Education (FIRE).

He works primarily on Civil Rights and Criminal Defense Cases.


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