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BELIEVING WITHOUT SEEING: THE PROBLEM OF EYEWITNESS MISIDENTIFICATION.

TABLE OF CONTENTS

INTRODUCTION
I.   Background and Data
     A. How Memory Works
     B. Police Influence
II.  Relevant Case Law
     A. The Overruling of Wade, Gilbert, and Stovall
     B. The Biggers Factors
 C.  Estimator, System, and Psychological Variable
III. Past Proposals
     A. Changes at the Interviewing Level
     B. Changes at the Trial Level
     C. A Call for Reform
     D. Habib Abdal
IV.  Proposed Solution
     A. Affording the Third-Party Attorney
CONCLUSION


INTRODUCTION

On April 23, 2007, Jerry Miller walked out of a courtroom a free man for the first time in over twenty-five years. (2) On a late night in the middle of October 1981, a middle aged white woman, was walking to her car on the top floor of a parking garage in Chicago. (3) As she opened her car door, a black man approached her, and pushed her inside the vehicle. (4) Inside her car, he beat her, robbed her, and brutally raped her. (5) She was told that if she opened her eyes he would kill her. (6) She was forced into the trunk of her car and he attempted to drive out of the parking garage. (7) At the exit, two employees stopped him, causing him to flee the vehicle. (8) The employees heard the victim cry for help from the trunk. (9)

A member of the Chicago Police Department saw the sketch of the assailant, based on the description given by the two employees, (10) and he thought it resembled Jerry Miller whom he had seen several days earlier looking into car windows. (11) The victim was incapable of making a positive identification of Miller, (12) and at trial she hesitated when asked to identify him. (13) She tentatively identified him based on his facial hair. (14) However, the employees positively identified Miller at trial. (16)

During the investigation the victim's clothing was found with semen on it, however no DNA tests were prepared for trial. (16) Both Miller and his father testified under oath to watching a Sugar Ray Leonard boxing match on the night of the crime. (17) Miller was convicted of rape, robbery, and kidnapping on October 1, 1982. (18) Twenty-three years after Miller's conviction, the Innocence Project(19) picked up his case, locating the slip and administering a DNA test, ultimately eliminating him as a suspect. (20) The results of the DNA test positively identified Robert Weeks as the perpetrator; he was already in custody for a different crime. (21) After the test disqualified Miller, the State Attorney's Office finally acknowledged his innocence and granted him a pardon. (22) In 2007 Miller became the two-hundredth person exonerated through DNA evidence. (23)

This article will address an ongoing problem in our judicial system today: erroneous eyewitness testimony that produces flawed convictions. The nightmares of eyewitness misidentification can only be ended by the implementation of an impartial third-party into the police investigative process to neutralize its suggestive effects. Part I will present the data that supports the need for reform, including a discussion on how our memories function and strategies used by law enforcement that are particularly manipulative. Part II analyzes the Supreme Court's relevant decisions. Part III will discuss some of the reforms that have been implemented in various jurisdictions. Part TV proposes a procedural reform that if implemented, would decrease the number of mistaken convictions and increase the accuracy of the criminal justice system. It also includes several options for funding this new addition to the criminal justice system.

I. BACKGROUND AND DATA

Once a case has gone to trial and the witness identifies, either rightly or wrongly, a perpetrator, the confidence of the witness will be unshakable and her certainty will have never been higher; despite the fact that an eyewitness's confidence in his or her identification has little relationship to identification accuracy because of the many post-event factors that affect confidence but not accuracy. (24) Mistaken eyewitnesses are highly convincing because of their sincerity and persuasiveness, even though they are wrong.

"Given our commitment to the due process model, and the presumption of innocence, wrongful conviction has to be rated as the most serious error our system of justice can make." (25) According to Rob Warden at Northwestern University School of Law, erroneous eyewitness testimony is the number one cause of wrongful convictions in the United States each year. (26) In a study of over 340 criminal convictions, eyewitness error played a role in 64% of wrongful convictions. (27) To place the extent of this problem into perspective, "[a] false conviction rate of 10% would imply almost 100,000 wrongful felony convictions every year." (28) Following a 1987 survey, eyewitness testimony against defendants is the primary source of evidence in over 80,000 criminal trials each year. (29) Due to the substantial reliance upon eyewitness testimony, it is a wonder that it is not monitored under closer scrutiny given the obvious flaws. The United States Court of Appeals for the Second Circuit addressed this issue stating:
There can be no reasonable doubt that inaccurate eyewitness testimony
may be one of the most prejudicial features of a criminal trial.
Juries, naturally desirous to punish a vicious crime, may well be
unschooled in the effects that the subtle compound of suggestion,
anxiety, and forgetfulness in the face of the need to recall often has
on witnesses. Accordingly, doubts over the strength of the evidence of
a defendant's guilt may be resolved on the basis of the eyewitness'
seeming certainty when he points to the defendant and exclaims with
conviction that veils all doubt. 'That's the man!' (30)


The Second Circuit is highlighting the fact that juries place great faith in eyewitness testimony acting under the misconception that perceptual memory is like a video that can be replayed. (31) However memory is much more malleable and susceptible to error. (32)

A. How Memory Works

Our memories can very easily be contaminated and molded by a myriad of factors. Studies have shown that the phrasing of a question can manipulate memory. (33) For example, when people are asked about the presence of a barn in a video in which there was no barn, many will remember seeing a barn. (34) Also, when asked how fast the cars were moving when they "smashed" into each other, people remembered them going faster, as opposed to when they were asked how fast the cars were going when they "hit" each other. (35) Similar to the way the interviewer can manipulate our memories, so too can we deform our own recollection. Every time we tell and retell a story, we add a layer of distortion to the facts, which affects our underlying memory of the events. (36) Beyond misremembering events and details, people can remember false information if they are told or asked about it. In fact, our memories are so easily influenced by our surroundings that people have "remembered" committing heinous crimes that they did not commit. (37) Furthermore, high levels of stress impede our ability to accurately perceive our surroundings and to record our sensations in our memory for future recollection.

Out of 290 exoneree cases reviewed, almost all of the eyewitnesses expressed complete confidence at trial when identifying their attacker. (38) However, when these same eyewitnesses first identified the defendants - long before trial - they were not as certain. (39) In fact, in 57% of these cases the "witness had earlier not been certain at all a glaring sign that identification was not reliable." (40) The "data suggests that eyewitnesses make more errors each time they need another viewing to make their identification." (41) These statistics show how malleable certainty can be, as it increases with each identification procedure. Knowing that our memories are so brittle, involving so many factors that have potential to permanently misconstrue our recollection, confidence at the time of trial can be very misleading.

B. Police Influence

Police remarks that influence a witness can be as subtle as providing comforting statements, or as indiscreet as intentionally pressuring statements such as where the officer tells the witness to identify a person. (42) Both kinds of remarks are manipulative and can plant seeds in the mind of the witness that if left to sprout and grow will become sturdy oaks at trial. Without someone in the room to counter these statements and provide an objective line of questioning, the police procedures will go unchecked.

Police also use a tactic called "show ups," where a witness is asked if a single person is the attacker. (43) These are inherently suggestive as they provide no other alternative for the victim to choose, and they can be made more suggestive if the suspect is presented in a squad car or handcuffs. (44) When police are free to engage in this type of investigative procedure without restraint or pushback, it is more likely that a witness will answer affirmatively, inculpating an innocent individual.

A third suggestive procedure used by police is the use of lineups. (45) This is particularly suggestive when the fillers in the lineup do not look anything like the eyewitness' description of the culprit. (46) Law enforcement can raise confidence in an eyewitness that a certain suspect is in fact the culprit if that suspect is the only person repeated in multiple viewings, because the individual will look more familiar. (47)

Stemming from the first problem is the second recurring problem of unreliable identifications. The truth that our memories are not steel traps is a phenomenon for many eyewitnesses who seem so confident in their ability to recollect. The confidence that an eyewitness exudes at trial was brewed long before.

II. RELEVANT CASE LAW

The Supreme Court has frequently examined the shortcomings of eyewitness testimony. First, in United States v. Wade, the Supreme Court considered whether courtroom identifications of an accused at trial are to be excluded from evidence because the accused was exhibited to the witnesses before the trial at a post-indictment lineup conducted for identification purposes without notice to defense counsel. (48) The Court held that because a post-indictment pre-trial lineup is a critical stage of a criminal proceeding, the defendant has a right under the 6th Amendment to have an attorney present. (49) If the attorney is not present, then the testimony is inadmissible. (50)

Next, in Gilbert v. California, the Court decided the same day as Wade, the petitioners armed robbery and murder conviction was vacated due to inadmissible eyewitnesses testimony that was a direct result of an unconstitutional lineup, which was conducted post-indictment and without notice to defense counsel. (51) The Court held that the state is not entitled to show that eyewitness testimony could be substantiated by an independent source. The trial court must grant the defendant a new trial if such testimony was presented at the guilt stage or grant appropriate relief if presented at the penalty stage. (52)

Stovall v. Denno was the third case decided together with Wade and Gilbert. The Court considered whether a suggestive identification procedure necessitated by exigent circumstances that was conducive to an erroneous identification constituted a denial of due process. (53) The victim's wife identified the petitioner while she was recovering in a hospital room. (54) When the petitioner was identified he was with five police officers, handcuffed to one of them and he was the only black man in the room. (55) The petitioner was identified again at trial and he was convicted of murder and sentenced to death. (56) The Court affirmed the lower court's holding that petitioner was not deprived of due process. (57)

One year later, in 1968, the Supreme Court decided Simmons v. United States. (58) The issue was whether an in-court identification of a defendant is admissible if it has been tainted by suggestive pre-trial identification photographs necessitated by exigent circumstances. (59) The Court held that in-court identifications are permissible as long as there use was necessary and the in-court identifications are reliable. (60)

A. The Overruling of Wade, Gilbert, and Stovall

In United States v. Ash, the Supreme Court addressed whether the 6th Amendment granted the accused the right to counsel when the government conducts post-indictment photo displays for identification purposes. (61) The Court of Appeals for the District of Columbia said the accused possesses the right to counsel, (62) and the Supreme Court reversed. (63)

In Ash, a bank robbery occurred on August 26, 1965. (64) Two men were involved in the robbery, one brandishing a firearm and a mask. (65) A government informant told several officers that he discussed the robbery with Charles Ash Jr. (66) An FBI Agent showed five pictures of African American males to four witnesses who were in the bank; none of the four witnesses were certain, but all selected Ash. (67) Ash was indicted and charged with five counts related to the robbery. (68) In preparation for trial, the prosecutor used a similar photo display to see if the witnesses would be able to identify Ash. (69) Of the four witnesses who were shown the photo display, three of them selected Ash, while the fourth was uncertain. (70) At trial, three witnesses identified Ash with the fourth remaining uncertain. (71)

The Appellate Court, relying on Wade, Gilbert, and Stovall, found Ash's 6th Amendment right to counsel was violated when his attorney was not given the opportunity to be present at the photo display. (72) The Supreme Court recognized the precedent set by Wade, stating that it shows that the traditional 6th Amendment test is easily extended to counsel at a lineup because it is similar enough to trial, and counsel is necessary to counterbalance overreaching by the prosecution. (73)

In Wade, the government argued, "if counsel was required at a lineup, the same forceful considerations would mandate counsel at other preparatory steps in the 'gathering of the prosecution's evidence."' (74) The Supreme Court here reasoned that to give Ash a right to counsel would equate to a substantial departure from the historical test because the accused is not present and has no right to be present. (75) In arriving at its decision, the Court also looked to Simmons, which stated that improved procedures could minimize the dangers of suggestive eyewitness identification and testimony. (76) However, the Court stated that the inherent risks in a photo display do not warrant an extraordinary system of safeguards, (77) and held that the 6th Amendment does not grant the right to counsel at a photo display. (78) In coming to this holding, along with the holding in Kirby v. Elinois, (79) the Supreme Court negated and overruled the precedent set by Wade, Gilbert, and Stovall.

The dissent in Ash acknowledged the precedent that Wade, Gilbert, and Stovall established, and the effects that were likely to occur as a result of the current decision. The dissenters recognized that three important holdings were born from the trio of cases decided in 1967. First, a pretrial lineup is a critical stage where the accused has a right to the presence of counsel. (80) Second, evidence of an identification of the accused at such an uncounseled lineup is per se inadmissible. (81) Third, evidence of a subsequent courtroom identification of the accused is likewise inadmissible unless the government demonstrates by clear and convincing evidence that the in-court identification was based on observations of the accused independent of the prior uncounseled line up identification. (82)

Justice Brennan, in the dissent joined by Justices Douglas and Marshall, wrote that overruling the precedent set in Wade, Gilbert, and Stovall would roll back the safeguards that were established to prevent innocent men and women from being convicted because of misidentification by witnesses. (83) The dissent argues for the extension of the protections set forth in Wade, Gilbert, and Stovall to photographic displays, because the "vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification." (84)

Finally, the dissent posits that since corporeal identification is more accurate because it presents people in reality, the dangers of misidentification are even greater with photo displays. (85) The dissenting Justices agree with the Appellate Court that "the dangers of mistaken identification... set forth in Wade are applicable in large measure to photographic as well as corporeal identifications." (86)

In Kirby v. Illinois, the Supreme Court held that an individual has a right to counsel in a pretrial identification procedure only if it took place after criminal proceedings had been initiated. (87) This holding similarly overruled the standards set forth in Wade.

B. The Biggers Factors

Finally, in Neil v. Biggers(88) and Manson v. Brathwaite, (89) the Supreme Court held that suggestive identification procedures, even unnecessarily suggestive procedures, were admissible if reliable. (90) The reliability is to be determined from a totality of the circumstances. (91) The Court in Neil v. Biggers(92) laid out five factors that can be followed to determine reliability. First, the eyewitness's opportunity to view the perpetrator during the crime. (93) Second, the length of time between the crime and the subsequent identification. (94) Third, the level of certainty demonstrated by the witness at the identification. (95) Fourth, the accuracy of the eyewitness's prior description of the accused. (96) Fifth, the eyewitness's degree of attention during the crime. (97)

The five factors from Neil have been closely scrutinized since the Supreme Court introduced them. Many scientific studies have shown that the factors that the Supreme Court mandated do not affect eyewitness accuracy the way the Supreme Court assumed. (98)

In assessing factor one, scientific research has revealed that post-event information, such as a comment by the one administering the lineup that the eyewitness has identified the subject, can distort the eyewitness's memory of how good his view of the crime was. (99) With regards to factor two, a shorter length of time between crime and identification is generally related to accuracy - where shorter time yields greater accuracy - however factors such as race and stress(100) interact with the retention interval affecting the accuracy of the identification. (101)

In assessing factor three, by time of trial, eyewitness confidence in identification has little to do with identification accuracy because of the post-event factors that affect confidence but not accuracy, (102) such as an officer's stating "good job" after the eyewitness describes the perpetrator. In assessing factor four, eyewitness accuracy in describing the perpetrator does not equate to eyewitness accuracy in identifying the perpetrator. (103) Finally, with regard to factor five, those who pay greater attention generally make more accurate identifications; however, fear, stress, and presence of. weapons play a significant role. (104) These elements tend to have a negative impact on the witness's ability to make accurate identifications.

C. Estimator, System, and Psychological Variables

Several variables affect eyewitness identification. First, there are estimator variables. (105) These are variables that cannot be controlled by the criminal justice system. (106) Estimator variables include the lighting at the time of the crime, the race of the perpetrator, and the presence of a weapon. Each one of these factors affects the eyewitness for different reasons.

First, the lighting at the time of the crime affects the eyewitness because if it is darker outside, it will be more difficult to see the events as they unfold. Second, the race of the perpetrator plays a large role in the eyewitness's ability to identify the perpetrator. (107) People are more successful at identifying individuals of their own race than they are of a different race. (108) This is because spending more time around a certain race makes it easier to notice differences among the individuals, and most people spend the majority of time with persons who are of the same race as themselves. (109) A study by R.S. Malpass showed that "when the race of the criminal was different from the race of the victim, the process of identification became markedly less reliable." (110) As is not surprising, Malpass' study showed people do better identifying members of their own race, where whites did worse identifying blacks than they did identifying fellow whites, and blacks did worse identifying whites than identifying fellow blacks. (111) Finally, people are less likely to remember critical events when a weapon is present, (112) because weapons create a more stressful environment and high levels of stress impede perception and memory. (113)

Second, there are system variables. (114) These are variables that can and should be controlled by the criminal justice system. (115) These variables include the manner in which law enforcement officers retrieve and record information, such as lineups and photo arrays. (116) Several modifications have been recommended to maintain the integrity of the system variables. (117)

Third, there are psychological variables. (118) Psychological factors are those related to the victim's disturbed emotional state or "inability to retrieve information from the memory's storage system." (119) Our memories do not simply record events like a video camera does;(120) instead a "theoretical analysis of how perception becomes memory divides the process into three stages." (121) The first stage is the acquisition stage where the event is perceived and entered into the viewer's memory system. (122) The second stage is the retention stage, which encompasses the time interval between the event and recollection. (123) The third stage is the retrieval stage, where the information is recalled. (124)

III. PAST PROPOSALS

A. Changes at the Interviewing Level

There are many reforms that have been proposed to resolve the eyewitness problem. The first proposal is to conduct all interviews via "blind administration." (125) Under this strategy, the interviewing officer is unaware of who the suspect is. (126) This prevents the officer from exhibiting bias that may lead the eyewitness toward a specific suspect.

Another proposal is to reconsider the manner in which lineups are composed. (127) Too often, the suspect's physical characteristics drastically differ from the other non-suspect "fillers" in the lineup. (128) The non-suspects should look like the described suspect. (129) While this increases the chances that the eyewitness will make a misidentification, when she is correct, the officers can know with greater certainty that the eyewitness actually remembered the incident in a way that enabled her to recall what she experienced.

The third major proposal is to present witnesses with instructions prior to the beginning of the interview process. These instructions would inform the eyewitness that the perpetrator may or may not be in the lineup, and that the investigation will continue regardless of the information they provide. (130) Oftentimes, the eyewitnesses are either told, or have a premonition that the suspect is in the lineup and so they feel obligated to choose one of the individuals despite their uncertainty. Notifying the eyewitness that the perpetrator may not be in the lineup removes the pressure from the eyewitness to make a positive identification

The fourth proposal is that officers and interviewers should document the eyewitness's confidence statements. The officers should note the eyewitness's level of confidence because it is the factor that jurors inherently assign the most weight when assessing the eyewitness testimony. (131)

Lastly it has been proposed that all interviews should be recorded or videotaped. (132) By recording the interview, it is impossible to misremember an answer to a question, because it can be replayed, and more importantly it places a check upon the officer conducting the interview. It prevents the officer from implementing strategies of coercion or duress to influence the eyewitness. (133)

B. Changes at the Trial Level

One of the ways to minimize the effects of eyewitness misidentification is to allow for expert testimony on the shortcomings of our memories, and to explain to the jury the way our mind records, stores and recalls information. However, courts are reluctant to permit expert eyewitness testimony despite its proven efficacy in mitigating eyewitness error. (134) In Daubert v. Merrel Dow Pharmaceuticals, Inc., (135) the United States Supreme Court implemented a new standard for determining the admissibility of scientific evidence, that of scientific validity, thus placing the burden on the judges. (136)

There are four Daubert factors. First, can the testimony can be, and has it been empirically tested. (137) Second, has it been published in a scientific journal subject to peer review?(138) Third, what are the known and potential error rates?(139) Fourth, is it generally accepted in the scientific community?(140) In Kumho Tire Co. v. Carmichael, (141) the Supreme Court extended the Daubert factors to all experts who intend to testify at trial. Under General Electric v. Joiner(142) the admissibility of an expert is reviewed under an abuse of discretion standard. (143)

When the primary evidence in a crime is eyewitness testimony, it has been argued that expert testimony should be permitted. (144) However, most courts prohibit this kind of testimony because they are reluctant to add another layer of complexity to already complicated cases. (145) Judges may also believe it is obvious and therefore unnecessary to hear testimony about how memory works. (146) Despite the belief about obviousness, jurors are incredibly incompetent when it comes to distinguishing between an accurate eyewitness and an inaccurate one. (147) Further, empirical evidence shows that judges are no better than jurors at distinguishing an accurate eyewitness from an inaccurate one. (148)

The legal system has set in place a series of safeguards that are designed to prevent eyewitness error; however, these safeguards are inadequate. First, voir dire(149) does not prevent eyewitness error. It is ineffective in determining a juror's willingness to examine eyewitness testimony critically. (150) Second, cross-examination is ineffective at attacking the problems because defense attorneys also lack knowledge of the eyewitness factors. (151) In an experiment where the eyewitness was cross-examined by a law student before one jury, and by an experienced lawyer before another, there was no significant difference in the results. (152) "The advocacy skills and tactics that lawyers struggle to learn, the hard-won lessons of long careers of practice had no discernible effect on the jurors' decisions in eyewitnesses cases." (153) If differences in lawyer performance have no impact on juror decisions, adversary attacks cannot actually achieve anything in helping separate mistaken identifications from accurate ones.

Third, closing arguments are unsatisfactory because although they can call into question an eyewitness's accuracy, they are incapable of arguing coherently why eyewitness testimony is erroneous. (154) There are a number of reasons for the ineffectiveness of closing arguments. The most prominent reason is that many attorneys are unfamiliar with the factors that affect memory and so they are not capable of conveying this information to the jury in a manner that the jury will be able to understand. (155) Fourth, jury instructions are inadequate and not recommended because they are difficult to adapt to each individual case. (156)

C. A Call for Reform

There needs to be an improvement in the procedures for collecting eyewitness evidence during the interviewing and identifying procedures. The eyewitness problem begins long before trial and there needs to be a reformation to the fact gathering process. The accuracy of the testimony is dependent upon the officer asking the right questions. The questions should be asked in an open-ended manner, instead of pointed or leading questions that call for specific answers. Open-ended questions allow the eyewitness to provide more of a narrative response, giving her more control of the conversation. (157)

Officers often poison the memory of the eyewitness from sources other than the witness's own memory by introducing statements made by other witnesses or the media. (158) This information often alters the response of the witness. (159) Post-event information, like sketches, photographs, mug shots, photo lineups, or television and newspaper coverage, disfigures the original memory. The police utilize many of these graphics when engaging with a witness. This is because memory is not precise, and information is not recalled in a vacuum. (160) The distortions from introducing outside information increase when the information comes from a source that is deemed to be credible or trustworthy, such as an officer. (161) Because the criminal justice system encourages manipulation of eyewitness memories - because law enforcement work with the prosecution and have a tendency to interview witnesses aggressively(162) - any improvements must be targeted at increasing the transparency of the investigative process and countering the detrimental effects of law enforcement on eyewitness memory.

Many of these proposals involve law enforcement strategies and changing the way police investigations are conducted. They have been ineffective because there has yet to be an intervening party between law enforcement and the witness during this process, which has enabled officers to continue to utilize manipulative techniques. While it is with good intentions that these proposals have been made - conducting "blind" interviews, changing lineup protocol, implementing instructions into the interview, and documenting confidence levels - they are all improvements to the investigative process, without providing a counterpunch to law enforcement's mighty right hook. In other words, law enforcement is still given the opportunity to address the eyewitness alone, with no one else in the room to reduce its force or neutralize its language.

D. Habib Abdal

In May of 1982, a woman sat with her husband in a park in Buffalo, New York. (163) Feeling cold, she went back to the car alone. (164) As she walked down the path a man jumped out from behind her saying, "Scared you, didn't I?" (165) She saw her attacker for only a moment "before he grabbed her, chok[ed] her neck and blindfold[ed] her with a bandana." (166) He subsequently dragged her off the path, raped her and fled. (167) The woman described her attacker as a man with dark skin, a space between his upper front teeth, and between 5'8" and 5'10". (168) She also stated that she "could feel a close cropped beard and moustache and fairly thick lips." (169)

After nearly five months, she was called into the police station to make an identification from a photo lineup. (170) "She told the officer that she was not sure if she 'would be able to identify him again."' (171) Habib Abdal's photo was one of the six in the lineup, and she was not able to identify him as her attacker. (172) Instead she selected several of the photos that she felt looked the closest like her attacker. (173) At trial she said, "I chose one man that looked closest to my description that I had in my head that I knew of the assailant," (174) when in fact, at the police station, she told the officer that Abdal did not look like her attacker. (175) When shown a corporeal lineup, she was presented with two men, Abdal, and a white man. (176) The police then made suggestions to her to identify Abdal for nearly 15 minutes. (177) They pressured her into selecting Abdal, and when that was not enough they had her stand eye to eye with him, and had him speak so she could hear his voice. (178) It was not until an officer brought out a mug shot from nearly five years before the attack that she looked at it and was "positively sure" it was him. (179)

At trial, she said that she looked at the attacker for almost thirty seconds before the assault. However, she originally stated that she saw him only briefly before she was blindfolded. (180) Suddenly, at trial she was able to make comparisons between Abdal and her attacker. (181) She was confident that he was the assailant. (182) However, her initial description of the space between his teeth and height of her attacker did not match Abdal. (183) Abdal had several spaces between his teeth, not just the one she initially reported. (184) And Abdal was 6'4", which is much taller than 5'10". (185) Nevertheless, the jury convicted him despite inconclusive DNA evidence. (186) Her testimony was powerful, though tainted by police inducement. Abdal spent sixteen years in prison before he was exonerated through DNA testing, and the attacker has never been found. (187)

IV. PROPOSED SOLUTION

Because an eyewitness's confidence appears so rock-solid at trial, remedial measures must be taken long before the trial begins. Abdal's final nail in the coffin was the moment the victim pointed to him at trial, exclaiming for all to hear that he was the man who raped her. (188) Any hope for him was needed months earlier. Because of the gravity of misidentification, the preservation of an eyewitnesses' accurate memory is imperative.

An impartial attorney should be implemented into the folds of the criminal justice system. This attorney would be present at all interviews and investigative matters that involve law enforcement officers and witnesses. It is important to note that the prosecution or the police force would not employ this attorney, making him independent from both of them. Similarly, he would not serve as the eyewitnesses' attorney or as the defendant's attorney during this procedure. To be clear, Ash states that the accused has no 6th Amendment right to counsel at a photo display. I am not proposing that the counsel present be partisan to the accused, instead she will be impartial with regard to all parties, acting as an overseer, making sure prejudice or manipulation does not seep through the cracks of a witness's memory, poisoning the proceeding, and causing a witness to implicate an innocent man.

Think back to the Abdal case. If a neutral attorney had been in the room while the police were questioning the victim, there is no doubt that she would have contested the questions asked by the police, cutting off the inquiries and inducements before they were able to fester in the mind of the victim and corrupt her memory. Currently the investigative process is a two-player game, where law enforcement is player one, and the eyewitnesses are player two. With this proposal, we are adding a third player into the mix. She would take part in all of the interviews, not as a silent recorder but as an active participant.

As discussed earlier, our memories are fragile and easily altered by a myriad of factors. Among the case files of exonerees who were misidentified by eyewitnesses, there were two recurring problems(189) that an impartial third-party could have prevented. The first of these problems is suggestive identification procedures used by the police. (190) Out of 161 cases studied, 78% of them showed evidence that police had contaminated the eyewitness's identification. (191) Officers can contaminate the eyewitness's identification by making remarks that indicate who the eyewitness should select during a lineup, (192) just as the officer did to the victim when he overtly pressured her to identify Abdal. Including an impartial attorney into this conversation, could counter these remarks made by the officers by asking questions that prevent the eyewitness from succumbing to his suggestive techniques. In effect, he can prevent the witness's memory from being permanently distorted.

A third-party attorney could minimize the suggestive police tactics addressed earlier in the article. First, an impartial attorney could neutralize the force of show-ups, where the officer asks the witness whether a single person is the assailant. This technique was utilized with Abdal, where the victim looked at Abdal through a glass at the police station, standing next to only a white man - who she knew was not her attacker - with an officer telling her he had been involved in another rape. Under the circumstances it was no wonder that she eventually believed he was her assailant. An impartial attorney can prevent this type of manipulation by cross-examining the witness with questions such as, "are you sure or is it because he is in handcuffs that you seem to remember him as the attacker?" If an attorney were present at the makeshift lineup with Abdal, he could have put an end to the officer's antics. When Abdal was displayed with only one other man, of a different race, he could have spoken to the victim telling her how this identification exercise is likely to manipulate her memory.

Law enforcement's manipulative use of line-ups could be balanced by adding the weight of a third-party into the interrogation room. As the officer's attempt to increase the confidence of the witness by repetitively showing the same suspect in multiple viewings, the attorney can question his confidence long before trial. The attorney could ask the witness if she is certain this is her attacker, pointing out that this suspect has been shown multiple times, inducing her memory to incorporate him into the events.

An independent third-party attorney, can interject when an eyewitness's confidence begins to grow as a result of repetitive viewings, essentially beginning cross-examination on day one, where they can ask the witness, "are you positive that you aren't just selecting this suspect because he was present in the previous lineup," or, "the first time you were asked to identify the suspect you were incapable of doing so; how is it that you so can now make such a confident identification?" If an attorney had been with the victim when she had her "eureka" moment that Abdal attacked her, she could have snuffed her confidence right then and there. How could she be so unsure in one moment, but so confident in the next?

A. Affording the Third-Party Attorney

The difficulty to adding this third-party attorney to the process will be the cost. However, there are several ways to solve this problem. The easiest solution is to have service in this role count for an attorney's pro bono hours. (193) Following this plan, there would be no need to fund the program, as there would be no additional cost.

An alternative approach would be to recognize the value of the services these attorneys will provide. It would be worth the additional price paid to eliminate, or at least reduce, the number of wrongful convictions throughout the country. In turn it would lead to fewer incarcerated individuals, relieving the stress on our already depleted and outdated prison infrastructure. Further, if the taxes already paid towards incarcerating those wrongfully convicted individuals were simply reallocated to funding the program, there would be no added cost to taxpayers. Of course, that assumes that each wrongfully convicted inmate would be released and exonerated, which is unlikely. According to the New York City Independent Budget Office it cost $167,731 to house and guard each inmate in 2012. (194) The money that is saved from not having to pay to keep these individuals imprisoned could be used to pay the salaries of these attorneys. Under this strategy, it would be an extra cost to implement the new attorney, at least at first. However, it would be far from wasteful. This attorney would be saving the lives of many innocent men and women who would otherwise be facing extended prison sentences.

A third recommendation would be for individual municipalities to allow their citizens to vote on implementing the program into their city and subsidizing it through their local taxes. This approach allows for the democratic process to work itself through the country, and allow for citizens to decide if they find it a valuable commodity to add to their local law enforcement system.

CONCLUSION

The trouble with eyewitness memory is that it is so effortlessly morphed and molded, like a ball of clay on a potter's wheel. Just as the wheel revolves and the potter transforms the ball into a ceramic masterpiece, so too are memories formed in the hands of law enforcement during an investigation. Unreliable identifications and false certainty are born from the suggestive techniques commonly used by officers. The questions asked by law enforcement in pursuit of the criminal add depth to the perception of events that the witness had not previously recollected. The methodical and unchecked use of lineups and photographs and persistent interviews slowly solidify the eyewitness's certainty, like fire hardens the clay, until when it comes out of the kiln, and the witness takes the stand, the artwork and the confidence, are unbreakable. But by implementing a disinterested third-party attorney, these types of eyewitness misidentifications that are so heavily induced be law enforcement can be altogether prevented.

Jens Omdal (1)

(1) J.D. Candidate, Loyola University College of Law, May 2019. I would like to thank my wife, Fiona Omdal, for her endless love and encouragement. I would also like to thank my dad, Daniel Omdal for his thought-provoking conversations, and ideas that gave rise to this paper; as well as my mom, Maria Omdal for always supporting my endeavors.

(2) Other Chicago DNA Exonerations: Jerry Miller, THE NAT'L REGISTRY OF EXONERATIONS (last update Nov. 4, 2016), https://www.law.umich.edu/special/exoneration/Page8/ca8edetail.aspx?caseid=3469.

(3) Id.

(4) Id.

(5) Id.

(6) Id.

(7) Id.

(8) Id.

(9) Id.

(10) Id.

(11) Id.

(12) Id.

(12) Id.

(13) Id.

(14) Id.

(15) Id.

(16) Id.

(17) Id.

(18) Id.

(19) See Innocence Project. (The Innocence Project, founded in 1992 by Peter Neufeld and Barry Scheck at Cardozo School of Law, exonerates the wrongly convicted through DNA testing and reforms the criminal justice system to prevent future injustice).

(20) The National Registry of Exonerations, supra note 2.

(21) Id.

(22) Id.

(23) Id.

(24) Richard A. Wise et al., A Tripartite Solution To Eyewitness Error, 97 J. Crim. L. and Criminology 807, 816 (2007). See also Gary L. Wells & Donna M. Murray, Eyewitness Confidence, in Eyewitness Testimony: Psychological Perspectives 155, 155-70 (Gary L. Wells & Elizabeth F. Loftus eds., 1984) (Myriad social, cognitive, and statistical factors likely greatly attenuate the confidence accuracy relationship over the months between when a crime was witnessed and when the witness testifies).

(25) ARYE, RATNER, CONVICTING THE INNOCENT: WHEN JUSTICE GOES WRONG, 4 (THE OHIO STATE UNIVERSITY EDS., 1983).

(26) Rob Warden, How Mistaken and Perjured Eyewitness Identification Testimony Put 46 Innocent Americans on Death Row, https://deathpenaltyinfo.org/files/pdf/StudyCWC2001.pdf (last visited September 29, 2018); E.g.,; Garrett L. Berman & Brian L. Cutler, Effects of Inconsistencies in Eyewitness Testimony on Mock-Juror Decision Making, 2 J. Applied Psychol. 170, 170 (1996) (stating that "false eyewitness identifications ... appear to be one of the leading causes of erroneous conviction") (internal citations omitted); Amy L. Bradfield et al., The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness Certainty and Identification Accuracy, 87 J. Applied Psychol. 112, 112 (2002) ("Mistaken identifications are the largest single cause of wrongful convictions."); Jacqueline McMurtrie, The Role of the Social Sciences in Preventing Wrongful Convictions, 42 Am. Crim. L. Rev. 1271, 1275 (2005) (quoting United States v. Wade, 388 U.S. 218, 229 (1967) ("Mistaken identification "probably accounts for more miscarriages of justice than any other single factor.'")). Indeed, Borchard identified erroneous eyewitness identification as a leading cause of false conviction over seventy years ago. Edward M. Borchard, Convicting the Innocent xii (1932). See also Wise, supra note 24 at 811.

(27) Samuel R. Gross et al., Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & Criminology 523, 524 (2005). Sixty-four percent of the exonerations involved at least one eyewitness misidentification.

(28) Richard A. Wise & Martin A. Safer, A Survey of Judges' Knowledge and Beliefs About Eyewitness Testimony, 40 Ct. Rev. 6, 6 (2003). See also, BRIAN L. CUTLER & STEVEN D. PENROD, MISTAKEN IDENTIFICATION: THE EYEWITNESS, PSYCHOLOGY, AND THE LAW, 7 (Cambridge University Press eds., 1995) (estimating that erroneous prosecutions based on mistaken eyewitness testimony number in the thousands every year). See also, JAMES M. DOYLE, TRUE WITNESS: COPS, COURTS, SCIENCE AND THE BATTLE AGAINST MISIDENTIFICATION, 36 (Palgrave Macmillan eds., 2005).

(29) Daniel Goleman, Studies Point to Flaws in Lineups of Suspects, N.Y. Times, Jan. 17, 1995, at CI.

(30) Kampshoff v. Smith, 698 F.2d 581, 585 (2d Cir. 1982) (citing United States v. Wade, 388 U.S. 218, 235-36 (1967).

(31) Wise, supra note 24 at 812.

(32) Id.

(33) DOYLE, supra note 28 at 91.

(34) Id. at 91.

(35) Id. at 91-92.

(36) Id.

(37) See Rachel Aviv, Remembering the Murder You Didn't Commit, The New Yorker, June 19, 2017.

(38) BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO WRONG, 63 (HARVARD UNIVERSITY PRESS EDS., 2011).

(39) Id. at 64.

(40) Id.

(41) Id. at 67.

(42) Id. at 59.

(43) Id. at 55.

(45) Id. at 57.

(46) Id.

(47) Id. at 59.

(48) 388 U.S. 218, 219-20 (1967).

(49) Id. at 237.

(50) Id.

(51) 388 U.S. 263, 274 (1967).

(52) Id.

(53) 388 U.S. 293, 295 (1967).

(54) Id.

(55) Id.

(56) Id.

(57) Id. at 296.

(58) Simmons v. United States, 390 U.S. 377 (1968).

(59) Id. at 379.

(60) Id. at 394.

(61) United States v. Ash, 413 U.S. 300, 300-01 (1973).

(62) Id. at 301.

(63) Id. at 302.

(64) Id.

(66) Id.

(66) Id.

(67) Id.

(68) Id.

(69) Id. at 303.

(70) ld.

(71) Id. at 304.

(72) Id. at 305.

(73) Id. at 314.

(74) Id.

(75) Id. at 317.

(76) Id. (quoting, Simmons, 390 U.S. 377, 386 n. 6 (1968)).

(77) Id. at 321.

(78) Id.

(79) See Kirby v. Illinois, 406 U.S. 682 (1971).

(80) Ash, 413 U.S. at 329, (Brennan, J., dissenting).

(81) Id.

(82) Id.

(83) Id. at 329.

(84) Id. at 330.

(85) Id. at 333.

(86) Id. at 332 (quoting, United States v. Ash, 149 U.S. App. D.C. 1, 461 F.2d 92, 100 (1972)).

(87) Kirby, 406 U.S. at 690.

(88) See Neil v. Biggers, 409 U.S. 188 (1972).

(89) See Manson v. Brathwaite, 432 U.S. 98 (1977).

(90) Neil, 409 U.S. 199-200; Manson 432 U.S. 98.

(91) Manson, 432 U.S. at 113 (citing Denno, 388 U.S. at 302); Neil, 409 U.S. at 199.

(92) Neil, 409 U.S. 199-200.

(93) Id. at 199.

(94) Id.

(96) Id.

(97) Id.

(97) Id. at 200.

(98) John C. Brigham et al., Disputed Eyewitness Identification Evidence: Important Legal and Scientific Issues, 36 Ct. Rev. 12, 17-18 (1999). See also Wise, supra note 24 at 815.

(99) Bradfield, supra note 26 at 113.

(100) The interaction between race, stress and retention are discussed in more detail in the following subsection.

(101) John C. Brigham et al., Accuracy of Eyewitness Identifications in a Field Setting, 42 J. Personality & Soc. Psychol. 673, 679-80 (1982). See also Wise, supra note 24 at 816.

(102) D. Stephen Lindsay et al., Witnessing-Condition Heterogeneity and Witnesses' Versus Investigators' Confidences in the Accuracy of Witnesses' Identification Decisions, 24 Law & Hum. Behav. 685, 695 (2000). See also Wise, supra note 24 at 816.

(103) Kenneth A. Deffenbacher, A Maturing of Research on the Behaviour of Eyewitnesses, 5 Applied Cognitive Psychol. 377, 393 (1991). See also Wise, supra note 24 at 817.

(104) Deffenbacher, supra note 103 at 386-87. See also Wise, supra note 24 at 817.

(105) The Science Behind Eyewitness Identification Reform. https://www.innocenceproject.org/science-behind-eyewitness-identification-reform/.

(106) Id.

(107) Id.

(108) R. S. Malpass, "Racial Bias in Eyewitness Identification?' Personality and Social Psychology Bulletin 1 (1974), 42; J. C. Brigham, and R. S. Malpass, "The Role of Experience and Contact In the Recognition of Faces of Own and Other-Race Persons," Journal of Social Issues 41 (1985), 139. See also DOYLE, supra note 28 at 103.

(109) Id.

(110) Id.

(111) Id.

(112) DOYLE, supra note 28 at 102-03.

(113) Id. at 103.

(114) The Science Behind Eyewitness Identification Reform.

(115) Id.

(116) Id.

(117) These modifications will be discussed in section IV- Past Proposals.

(118) RATNER, supra note 25 at 92.

(119) Id.

(120) Id. at 93.

(121) Id.

(122) Id.

(123) Id.

(124) Id.

(125) Eyewitness Misidentification--Innocence Project, https://www.innocenceproject.org/causes/eyewitness-misidentification/ (last visited Apr. 23, 2018).

(126) Id.

(127) Id.

(128) Id.

(129) Id.

(130) Id.

(131) Id.

(132) Id.

(133) Id.

(134) See CUTLER, supra note 28 at 241.

(135) See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

(136) Id. at 588.

(137) Id. at 593.

(138) Id. at 594.

(139) Id.

(140) Id.

(141) Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

(142) See General Electric v. Joiner, 522 U.S. 136 (1997).

(143) Id. at 143.

(144) Wise, supra note 24 at 823.

(145) Michael R. Headley, NOTE: Long on Substance, Short on Process: An Appeal for Process Long Overdue in Eyewitness Lineup Procedures, 53 Hastings L.J. 681, 692 (2002); see also James M. Doyle, No Confidence: A Step Toward Accuracy in Eyewitness Testimony, THE CHAMPION, (Jan.-Feb. 1998), https://www.nacdl.org/CHAMPION/ARTICLES/98jan01.htm.

(146) Doyle, supra note at 145.

(147) Michael R. Leippe, The Case for Expert Testimony About Eyewitness Memory, 1 Psychol. Pub. Pol'y & L. 909, 911, 92 (1995).

(148) Wise, supra note 28 at 8.

(149) Voir Dire is a preliminary examination of a juror or witness by a judge or counsel.

(150) Douglas J. Narby et al., Effectiveness of Voir Dire as a Safeguard in Eyewitness Cases, 79 J. Applied Psychol. 724-25, (1994) ("The fairness of the defendant's trial is therefore partially dependent on the ability and willingness of the jury to scrutinize the eyewitness testimony."). See also Wise, supra note 24 at 827.

(151) CUTLER, supra note 28 at 157.

(152) R. C. L. Lindsay, G. L. Wells, and F. J. O'Connor, "Mock Juror Belief of Accurate and Inaccurate Eyewitnesses: a Replication and Extension," Law and Human Behavior 13 (1989), 333. See also DOYLE, supra note 28 at 41.

(153) DOYLE, supra note 28 at 41.

(154) Thomas Dillickrath, Expert Testimony on Eyewitness Identification: Admissibility and Alternatives, 55 U. Miami L. Rev. 1059,1096 (2001).

(155) Id.

(156) See Brian L. Cutler et al., Juror Sensitivity to Eyewitness Identification Evidence, 14 LAW & HUM. BEHAV. 185-91 (1990).

(157) See Wise, supra note 24 at 843.

(158) Brigham, supra note 98 at 14.

(159) Elizabeth F. Loftus, Make-Believe Memories, 58 Am. Psychologist 867, 867 (2003).

(160) John C. Brigham & Robert K. Bothwell, The Ability of Prospective Jurors to Estimate the Accuracy of Eyewitness Identifications, 7 Law & Hum. Behav. 19, 20 (1983). See also Wise, supra note 24 at 846.

(161) Donald P. Judges, Two Cheers for the Department of Justice's Eyewitness Evidence: A Guide for Law Enforcement, 53 Ark. L. Rev. 231, 247 (2000). See also D. Stephen Lindsay & J. Don Read, "Memory Work" and Recovered Memories of Childhood Sexual Abuse: Scientific Evidence and Public, Professional, and Personal Issues, 1 Psychol., Pub. Pol'y, & L. 846, 864 (1995).

(162) Ronald P. Fisher, Interviewing Victims and Witnesses of Crime, 1 Psych. Pub. Pol'y & L.732, 755 (1995).

(163) GARRETT, supra note 38 at 45.

(164) Id.

(165) Id.

(166) Id.

(167) Id.

(168) Id.

(169) Id.

(170) Id.

(171) Id.

(172) Id.

(173) Id. at 46.

(174) Id.

(175) Id.

(176) Id.

(177) Id.

(178) Id.

(179) Id.

(180) Id. at 47.

(181) Id.

(182) Id.

(183) Id.

(184) Id.

(185) Id.

(186) Id.

(187) Id.

(188) Id.

(189) Id. at 48.

(190) Id.

(191) Id. at 49.

(192) Id.

(193) MODEL RULES OF PROF'L CONDUCT r. 6.1 (Am. Bar. Ass'n, 2018) ("A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.")

(194) Marc Santora, City's Annual Cost Per Inmate Is $168,000, Study Finds, N.Y. Times, Aug. 24, 2013 at A16.
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