Vol. 77, No. 3, March 2004

Looks can be Deceiving:
Safeguards for Eyewitness Identification

by Winn S. Collins

egal researchers have determined repeatedly that the single leading cause of wrongful conviction in the United States is eyewitness misidentification.¹ A study conducted in Wisconsin reached a similar conclusion, determining that eyewitness misidentification was involved in approximately one half of Wisconsin exoneration cases.² Erroneous identification is especially troubling because social scientists already have determined that the criminal justice system can significantly reduce the rate of misidentification by implementing subtle changes to identification procedures.

This article reviews several misidentification cases in Wisconsin, including the highly publicized release of Steven Avery in September 2003, explains the leading causes of misidentification, and recommends changes to eyewitness evidence collection techniques. The article also recognizes several commendable efforts recently undertaken by some within the justice system to implement new collection procedures.

Misidentification in Wisconsin

The Wisconsin criminal justice system is not immune to the dangers of eyewitness misidentification and conviction of the innocent. In the early 1970s, a Milwaukee County jury convicted Francis Hemauer of abduction, rape, and attempted murder after the victim identified him at both a photograph and live lineup procedure.³ Hemauer served eight years in prison before testing of seminal deposits excluded him as the source of the semen.⁴ In 1996, Anthony Hicks was exonerated when DNA testing revealed that he was not the source of the hair found at the scene of a sexual assault that occurred in 1990.⁵ Hicks was convicted, in large part, based upon the victim's identification at a lineup. In September 2003, Steven Avery became yet another example illustrating the ramifications of eyewitness misidentification.

The Steven Avery Exoneration. Steven Avery was convicted of first-degree sexual assault, attempted murder, and false imprisonment of a Manitowoc woman.⁶ On July 29, 1985, the woman was jogging on a Lake Michigan beach when a man attacked and sexually assaulted her. The victim later testified that, during the assault, she remembered thinking, "I have to stay calm and get a good look at this guy."⁷ The victim provided a detailed description of her attacker to investigators from the Manitowoc County Sheriff's Department. The sheriff suspected that Avery was the attacker because his features matched those provided in the victim's description. Only a few hours after the attack, the victim selected Avery from a photograph lineup during which the sheriff told her "there was a chance that the suspect might be in there."⁸ Three days later, the victim "immediately" identified Avery from a live lineup after the sheriff told the victim that the man whose photograph she had selected had been arrested.⁹ At trial, the victim testified "[t]here is absolutely no question in my mind" that he was the attacker.¹⁰ The jury convicted Avery. The judge sentenced Avery to 32 years in prison.

On Sept. 11, 2003, Avery was released from prison, after DNA testing matched a hair found at the crime scene to Gregory Allen, a man serving a 60-year sentence for a similar sexual assault.¹¹ Before the exoneration, Avery had argued that the identification procedure used by the sheriff was impermissibly suggestive. In an unpublished opinion, the Wisconsin Court of Appeals denied Avery's claim, noting "the photo array constitutes one of the fairest ones this court has seen."¹² A decade later, in a second appeal, Avery unsuccessfully tried to obtain a new trial after testing revealed the presence of DNA from an unknown third party.¹³ Avery finally proved his innocence with the help of the Wisconsin Innocence Project and a two-year-old law that increased a defendant's access to DNA testing.¹⁴ Avery had served nearly 18 years in prison before proving his innocence.

The Eugene Glenn Exoneration. Only one month after Avery's release, the Milwaukee Journal Sentinel reported the exoneration case of Eugene Glenn, another case involving misidentification.¹⁵ Glenn was convicted for the armed robbery of a Milwaukee woman on Oct. 11, 2001. A Milwaukee police detective suspected Glenn because he matched the general description provided by a man who received some of the property stolen during the robbery. The victim identified Glenn at a lineup and, at trial, she told the jury that she "recognized his face immediately." The jury convicted Glenn and the judge sentenced him to 20 years in prison. On his appeal, an investigator and public defender contacted the man who originally had received the stolen property. The man implicated Eric Gardner, who confessed to the crime during a police interview on Oct. 4, 2003.

Causes of Misidentification

Experts on eyewitness identification have known the dangers and causes of misidentification well before the Avery and Glenn exonerations. As long ago as 1932, Yale law professor Edwin Borchard reported that identification procedures are susceptible to producing misidentification and new procedures based on scientific study should be developed.¹⁶ More recently, in the last two and a half decades, researchers have identified two particularly troubling problems with current identification techniques. The first is memory contamination through investigator suggestion and the second is a witness's use of the relative judgment process.

Memory Contamination. Memory contamination occurs during an identification procedure when an investigator makes an accidental or subtle remark. For example, before a lineup, a detective may comment to a witness that the detective has a suspect in mind, thereby encouraging the witness to identify someone during the identification procedure. Memory contamination likely occurred in the Avery case before the photo lineup because the sheriff commented that the victim could assume the suspect was present in the lineup. The sheriff further contaminated the victim's memory before the live lineup by telling the victim that his department had arrested the man she selected in the earlier photo lineup.

Relative Judgment Process. The second problem, the relative judgment process, occurs when a witness views a simultaneous lineup (that is, all members of the lineup are shown to the witness at the same time). In a report by the U.S. Department of Justice - published the same month as Avery's exoneration - identification experts explained that "[r]esearch shows that eyewitnesses tend to select the person who looks most like the perpetrator relative to the other lineup members."¹⁷ When the actual perpetrator is absent from the lineup, the witness often selects the innocent individual who most closely resembles the witness's memory of the culprit. The relative judgment phenomenon almost certainly contributed to the misidentification of Avery because the actual perpetrator, Gregory Allen, was not presented at either lineup procedure.

The preferable identification approach invokes the absolute judgment process, in which an eyewitness compares each lineup participant only to the witness's memory of the perpetrator and not to the other members within the lineup. Absolute judgment involves a cognitive process in which the witness almost automatically recognizes the actual culprit from a lineup because "the suspect looks sufficiently like the person in the witness's memory to meet some internal threshold of recognition."¹⁸ An investigator may encourage a witness to invoke the absolute judgment process by showing the lineup participants one person at a time, thereby preventing a witness from comparing lineup members to one another.

Solutions to Misidentification

By the late 1990s, academic and government officials recognized that broad reforms were needed to minimize the misidentification and erroneous conviction of the innocent. In 1998 the American Psychology and Law Society published "good-practice guidelines for constructing and conducting lineups and photospreads for eyewitnesses to crime."¹⁹ The following year, in October 1999, the U.S. Department of Justice published Eyewitness Evidence: A Guide for Law Enforcement (DOJ Eyewitness Guide).²⁰ These publications recommended a host of reforms to lineup procedures, including recommendations for blind identification procedures and sequential lineups.

Blind Testing. The American Psychology and Law Society report recommended the adoption of blind identification procedures. That is, "[t]he person who conducts the lineup ... should not be aware of which member of the lineup ... is the suspect."²¹ The report stated that the recommendation for blind testing does not presume any deliberate impropriety on the part of law enforcement investigators; instead, the report explained that investigators often accidentally reveal clues to the eyewitness through eye contact, visible facial expressions, and verbal exchanges. The use of blind procedures prevents an investigator from accidentally providing suspect information to a witness, thereby significantly decreasing the likelihood of misidentification based upon memory contamination. The use of blind procedures in the Avery case would have prevented the sheriff from telling the victim that the man whose photograph she had selected in the photo lineup had been arrested.

Sequential Lineups. The abovementioned publications also supported the use of sequential lineup techniques (that is, lineups conducted by displaying one photo or one person at a time to the eyewitness). The American Psychology and Law Society report recognized that "the sequential procedure ... reduces the propensities of eyewitnesses to make relative judgments."²² In a supplement to the original DOJ Eyewitness Guide, the authors stated that the sequential procedure prevents the eyewitness from making relative judgments, thereby encouraging the use of the absolute judgment process.²³ It is impossible to predict whether sequential procedures would have prevented the misidentification of Avery, but experts on the subject agree that "it is clear that the sequential procedure produces a lower rate of mistaken identifications []in perpetrator-absent lineups."²⁴

States Adopt the Procedures. In October 2001, New Jersey became the first state to officially implement a statewide identification procedure using blind testing and sequential lineups.²⁵ New Jersey Deputy Attorney General Lori Linskey stated that recent findings from a two-year review of the program demonstrated that law enforcement agencies implemented the procedures without much difficulty. More than 80 percent of law enforcement departments implemented blind testing either with no difficulties or with only minor difficulties that were easily overcome.²⁶ Likewise, more than 85 percent of departments had either no difficulties or only minor difficulties implementing sequential lineups.²⁷ In October 2003, following New Jersey's lead, North Carolina became the second state to support blind testing and sequential lineups after the chief justice of the North Carolina Supreme Court recommended the use of such procedures.²⁸

Hesitation to Change

In 2001 members of Wisconsin's legal community called on the criminal justice system to follow the example set by New Jersey. In September 2001, the president of the State Bar of Wisconsin stated "we can eliminate a great majority of misidentifications and not miss true positive identifications by insisting on the use of ... a serial photo lineup ... [and] [u]sing an officer other than the assigned detective to conduct the photo lineup."²⁹ Keith Findley, codirector of the Wisconsin Innocence Project, added, "It's important that we seize [this] opportunity, while we have it."³⁰

Since then, however, the Wisconsin criminal justice and legal communities have made only modest gains toward implementing the statewide use of blind testing and sequential lineups. One notable event occurred in May 2003, when Portage County Circuit Judge Fred Fleishauer organized a half-day information session for Wisconsin judges on the dangers and causes of misidentification.³¹ A second advancement occurred when approximately 150 law enforcement officers attended private training sessions conducted by members of the working group that had published the DOJ Eyewitness Guide.³² The Madison Police Department also hosted an independent training session for law enforcement in April 2003.³³

The results of these training sessions ultimately led to the Appleton Police Department becoming one of the first departments in Wisconsin to adopt a policy of sequential lineups. Appleton Police Department Sergeant Dan Woodkey stated that after the department implemented sequential procedures, he quickly recognized the value to the technique because witnesses now make "an instant response" upon viewing a suspect's photograph - an observation confirming that the witness used the absolute judgment process.³⁴ The Madison Police Department recently became the first department in Wisconsin to require both blind testing and sequential lineups.³⁵

Despite this progress, the Wisconsin criminal justice system does not have any statewide directive advocating for improved identification techniques. The Wisconsin Department of Justice (DOJ) has not formed a working group to examine the procedures implemented by the New Jersey Department of Justice. Similarly, the Wisconsin court system has not followed North Carolina's lead by creating a broad-based commission to examine the use of blind testing and sequential lineups. The slow response is all the more troubling in light of the Eugene Glenn case, because investigators conducted his identification procedure after New Jersey already had implemented blind testing and sequential lineups. One can only speculate whether the victim would have incorrectly identified Glenn had the identification procedure occurred in New Jersey.

The recent exoneration of Steven Avery has served as a spark to awaken Wisconsin's criminal justice system. Shortly after the exoneration, the Wisconsin DOJ responded by forming a Public Integrity Unit to determine "whether or not any improprieties were had during the court (sic) of the investigation or trial."³⁶ In the final report, Attorney General Peg Lautenschlager addressed many important matters surrounding the Avery case, but she did not address broader issues regarding how to improve identification procedures.³⁷ The Wisconsin Legislature also responded, with Rep. Mark D. Gundrum forming a taskforce "to review practices and procedures in Wisconsin's criminal justice system which may need improving to help avoid the wrongful conviction of innocent persons."³⁸ Findley, codirector of the Wisconsin Innocence Project and a taskforce member, stated that the taskforce plans to dedicate an entire session to address eyewitness identification procedures before it completes its work in spring 2004.³⁹ Only time will determine whether the taskforce serves as a basis for statewide reform.

Conclusion

The Avery exoneration likely will make the next year a decisive one in determining whether the Wisconsin criminal justice system adopts a statewide movement toward blind testing and sequential lineups. The Avery case certainly serves as a powerful demonstration of the need for reform, but Avery clearly is not the first - or last - person exonerated after a conviction based upon misidentification. A person would be naïve to believe that the Avery case alone will change a system that did not change after previous exonerations.

Perhaps the better hope for reform lies in the lessons learned from law enforcement departments already using blind testing and sequential lineups. The preliminary findings from New Jersey's two-year review demonstrate that an entire state can implement blind testing and sequential procedures without too much difficulty. Likewise, the Appleton and Madison police departments prove that such procedures work well within the Wisconsin criminal justice system. As these departments continue to use the improved techniques, the criminal justice system as a whole may recognize that something as subtle as how an investigator displays photographs has a tremendous impact on whether an innocent man spends 18 years of his life behind bars.

Endnotes

¹Winn S. Collins, Improving Eyewitness Collection Procedures in Wisconsin, Wis. L. Rev. 529, 529 n.1 (2003).

²Id. at 534 (citing Jessica Harry et al., Guilty Until Proven Innocent: A Study of Wrongful Convictions in the Wisconsin Criminal Justice System (May 16, 2001) (unpublished manuscript)).

³Hemauer v. State, 64 Wis. 2d 62, 218 N.W.2d 342 (1974).

⁴E. Michael McCann, Opposing Capital Punishment: A Prosecutor's Perspective, 79 Marq. L. Rev. 649, 657 (1996).

⁵See State v. Hicks, 202 Wis. 2d 150, 549 N.W.2d 435 (1996).

⁶See generally State v. Avery, 213 Wis. 2d 228, 570 N.W.2d 573 (Ct. App. 1997); State v. Avery, No. 86-1831-CR, 1987 Wisc. App. LEXIS 4019 (Ct. App. Aug. 5, 1987).

⁷Avery, 213 Wis. 2d at 244, 570 N.W.2d at 580.

⁸Avery, 1987 Wisc. App. LEXIS 4019, at *4.

⁹Avery, 213 Wis. 2d at 244, 570 N.W.2d at 580; Tom Kertscher, A Mistake, Milwaukee J. Sentinel, Sept. 21, 2003, at 1A.

¹⁰Kertscher, supra note 9.

¹¹A Milwaukee Journal Sentinel investigation revealed that, at the time of the sexual assault, the Manitowoc Police Department suspected Allen of several sexual assaults that had occurred in the first half of 1985. The Manitowoc Sheriff's Department never pursued Allen as a suspect. For more information on what officers knew about Allen, see Tom Kertscher, Police Were Watching Man Now Linked to Avery Case, Milwaukee J. Sentinel, Oct. 20, 2003, at 1A.

¹²Avery, 1987 Wisc. App. LEXIS 4019, at *13.

¹³Avery, 213 Wis. 2d at 232-33, 570 N.W.2d at 575-76.

¹⁴Wis. Stat. § 974.07 (2001-02). For more information on this statute, see Keith A. Findley, New Laws Reflect the Power and Potential of DNA, 75 Wis. Law. 20 (May 2002).

¹⁵Jessica McBride, Reversed Conviction Reflects Problems with Testimony, Milwaukee J. Sentinel, Oct. 13, 2003, at 1A.

¹⁶Edwin M. Borchard, Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice 367 (Garden City Publ'g Co. 1932).

¹⁷U.S. Dep't of Justice, Eyewitness Evidence: A Trainer's Manual for Law Enforcement 38 (Sept. 2003), avail. at www.ncjrs.org/nij/eyewitness/188678.pdf (712K) [hereinafter Eyewitness Evidence II].

¹⁸Donald P. Judges, Two Cheers for the Department of Justice's Eyewitness Evidence: A Guide for Law Enforcement, 53 Ark. L. Rev. 231, 256 (2000).

¹⁹Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 23 Law & Hum. Behav. 603, 603 (1998).

²⁰U.S. Dep't of Justice, Eyewitness Evidence: A Guide for Law Enforcement (Oct. 1999), avail. at www.ncjrs.org/pdffiles1/nij/178240.pdf (216K) [hereinafter Eyewitness Evidence I].

²¹Wells et al., supra note 19, at 627.

²²Id. at 639-40.

²³Eyewitness Evidence II, supra note 17, at 41.

²⁴Wells et al., supra note 19, at 639.

²⁵Letter from John J. Farmer Jr., New Jersey Attorney General, to County Prosecutors et al. 1-2 (Apr. 18, 2001), avail. at www.state.nj.us/lps/dcj/agguide/photoid.pdf (68K).

²⁶Telephone Interview with Lori Linskey, Deputy Attorney General, New Jersey Department of Justice (Jan. 6, 2004).

²⁷Id.

²⁸Letter from I. Beverly Lake Jr., Chief Justice, Supreme Court of North Carolina, to Scott Perry et al., Director, Criminal Justice Training & Standards, North Carolina Department of Justice (Oct. 9, 2003).

²⁹Gerry Mowris, President's Message: DNA Lessons Learned, 74 Wis. Law. 5 (Sept. 2001).

³⁰Dianne Molvig, DNA Evidence: Freeing the Innocent, 74 Wis. Law. 14 (Apr. 2001).

³¹Telephone Interview with Fred Fleishauer, Portage County circuit court judge (Nov. 7, 2003).

³²Telephone Interview with Paul Carroll, Technical Working Group for Eyewitness Evidence, National Institute of Justice, U.S. Dep't of Justice (Oct. 10, 2003).

³³Telephone Interview with Cheri Maples, captain of personnel and training, Madison Police Dep't (Oct. 16, 2003).

³⁴Interview with Dan Woodkey, sergeant in the Investigative Services Unit, Appleton Police Dep't, Appleton, Wis. (Nov. 7, 2003).

³⁵Telephone Interview with Cheri Maples, supra note 33.

³⁶J.R. Ross, State to Review Freed Man's Case; Officials Will Look at Whether Old Rape Case was Handled Properly, Wis. St. J., Sept. 20, 2003, at B1.

³⁷Memorandum from Peg Lautenschlager, Wisconsin Attorney General, to Mark Rohrer, Manitowoc County District Attorney (Dec. 17, 2003), avail. at www.doj.state.wi.us/news/rep121803_DCI.asp.

³⁸Press Release, Mark D. Gundrum, Gundrum Announces Avery Task Force: Group to Examine Practices and Procedures Contributing to Wrongful Convictions (Dec. 10, 2003).

³⁹Telephone Interview with Keith A. Findley, codirector of the Wisconsin Innocence Project (Jan. 6, 2004); see also Telephone Interview with Mark D. Gundrum, chair of the Committee on Judiciary, Wisconsin Assembly (Oct. 17, 2003).

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