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During the third week of December 2023, six men serving long term prison sentences in California, Illinois and Minnesota were released after being exonerated for crimes they did not commit. The six men served a combined 180 years in prison—an average of 30 years per man. All the men were men of color.

The wrongful convictions in four of those cases were the result of witness misidentification.

As of July 2024, there had been 3,548 exonerations in this country—roughly percent of which were black people, according to the National Registry of Exonerations.

The New York-based Innocence Project reports that more than 60 percent of wrongful convictions in this country can be attributed to witness misidentification. Numerous reputable studies have found that witness misidentification can be linked to the following issues:

• Witness stress.
• A lineup that contains only one person who looks like suspect.
• A lineup that contains only people of the same race.

The Innocence Project, and other criminal justice groups, has been responsible for some meaningful witness identification reforms over the last two decades. These reforms came about through a process known as “sequential double blind”—a process the Innocence Project says “is shorthand for a package of reforms recognized by police, prosecutorial and judicial experience, as well as national justice organizations, including the National Institute of Justice and the American Bar Association.”

These simple, basic reforms include:

1. The “Double-blind” Procedure/ Use of a Blind Administrator: A “double-blind” lineup is one in which neither the administrator nor the eyewitness knows who the suspect is. This prevents the administrator of the lineup from providing inadvertent or intentional verbal or nonverbal cues to influence the eyewitness to pick the suspect.
2. Sequential presentation: In a “sequential” presentation, the eyewitness is shown lineup members one at a time and asked to make a decision about each before viewing the next. This allows the eyewitness to examine the image of each suspect separately and reduces the demonstrated likelihood of the witness making a “relative judgment,” i.e. picking the person who may not be, but most resembles the witness’s memory of the perpetrator. Examine the image of each suspect separately and reduces the demonstrated likelihood of the witness making a “relative judgment,” i.e. picking the person who may not be, but most resembles the witness’s memory of the perpetrator.
3. Instructions: There are a number of instructions that the administrator should provide the eyewitness. This includes telling the eyewitness that the administrator does not know who the suspect is, the suspect may or may not be in the lineup, and that it is as important to exclude the innocent as it is to identify the guilty. These instructions deter the eyewitness from looking to the lineup administrator for feedback, and prevent the eyewitness from feeling compelled to select an individual from the lineup.

The evolution of these early witness identification reforms has led to additional reforms utilized by many law enforcement agencies today:

1. Composing the lineup: use of “fillers” (non-suspect subjects or photos) that draw attention to suspect should be avoided. Any lineup procedure that draws unreasonable attention to suspect should be avoided
2. Confidence statements: witnesses should be made to provide law enforcement with a statement, in their own words, that sets forth their level of confidence in their identification.
3. Lineup procedure should be documented: law enforcement conducting lineup should document events surrounding lineup that would allow lawyers, judges and juries to determine if proper procedures were followed.

In 2017, the Texas Legislature enacted a model policy for witness identification promulgated by the Texas Law Enforcement Management Institute which allows for in-court identifications to be admissible only if they are accompanied by details of all out-of-court identification procedures. In addition, the legislation mandated that all law enforcement officers who conduct witness identification procedures first be given specialized training in such procedures.

However, the problem persists with too many police departments still utilizing the kind of suspect identification procedures that have led to hundreds of exonerations of innocent men after new evidence, such as DNA testing, indisputably proved the witness identification was wrong—more often than not because of the flawed identification procedures used in those cases.

The only way to avoid the tragedy of witness misidentification is for all police departments to implement the below nine recommendations by the American Psychological Association issued in 2020 through its American Psychology-Law Society:

1. Pre-lineup Interview Recommendation. Before conducting an identification procedure and as soon as practicable after the commission of the crime, an officer should interview witnesses to document their descriptions of the culprit, obtain their self-report of viewing conditions and attention during the crime, document any claims of prior familiarity with the culprit, instruct witnesses to not discuss the event with other co-witnesses, and warn the witnesses against attempting to identify the culprit on their own. The entire interview should be video-recorded.
2. Evidence-Based Suspicion Recommendation. There should be evidence-based grounds to suspect that an individual is guilty of the specific crime being investigated before including that individual in an identification procedure and that evidence should be documented in writing prior to the lineup.
3. Double-Blind (or Equivalent) Recommendation. Lineups should be conducted using a double-blind procedure (i.e., neither the administrator nor the witness should know who the suspect is in the lineup) or an equally effective method of preventing the lineup administrator from inadvertently influencing the witness.
4. Lineup Fillers Recommendation. There should be only one suspect per lineup and the lineup should contain at least five appropriate fillers who do not make the suspect stand out in the lineup based upon physical appearances or other contextual factors such as clothing or background.
5. Pre-lineup Instructions Recommendation. When inviting an eyewitness to attend a lineup procedure (photo lineup or live lineup), police should not inform the eyewitness of any information that the witness has not already provided and certainly should not suggest that the suspect who will be in the lineup has been arrested or that the culprit will be present in the identification procedure. The eyewitness should be instructed that (a) the lineup administrator does not know which person is the suspect and which persons are fillers; (b) the culprit might not be in the lineup at all, so the correct answer might be “not present” or “none of these”; (c) if they feel unable to make a decision they have the option of responding “don’t know”; (d) after making a decision they will be asked to state how confident they are in that decision; and (e) the investigation will continue even if no identification is made.
6. Immediate Confidence Statement Recommendation. A confidence statement should be taken from witnesses as soon as an identification decision (either positive or negative) is made.
7. Video-Recording Recommendation. The entire identification procedure, including pre-lineup instructions and witness confidence statement, should be video-recorded.
8. Avoid Repeated Identifications Recommendation. Repeating an identification procedure with the same suspect and same eyewitness should be avoided regardless of whether the eyewitness identified the suspect in the initial identification procedure.
9. Showups Recommendation. Showups should be avoided whenever it is possible to conduct a lineup (e.g., if probable cause exists to arrest the person then a showup should not be conducted). Cases in which it is necessary to conduct a showup should use the procedural safeguards that are recommended for lineups, including the elimination of suggestive cues, a warning that the detained person might not be the culprit, video-recording the procedure, and securing a confidence statement.