National Academy Releases Report on Eyewitness Identification

On October 2, 2014, the National Research Council of the National Academy of Sciences released a report entitled Identifying the Culprit: Assessing Eyewitness Identification. This is an important document, but not because it breaks new ground. Instead, it does an excellent job of summarizing what we do and do not know about eyewitness identification testimony, and it offers recommendations on how to collect and use eyewitness identification evidence in cases in which a criminal’s identity is in dispute.

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The care and detail of the Report, the distinction and the wide range of experience of the members of the committee that wrote it, together with the prestige of the National Academy, may make it uniquely influential.

The Report recommends that police use procedures designed to protect eyewitness memories from contamination, and to collect information about the reliability of witness identifications. Specifically, the Report recommends that police departments: 

  • Train all law enforcement officers in eyewitness identification, focusing specifically on factors that affect vision and memory, and on procedures to prevent contamination.
  • Implement “double-blind” identification procedures in which the officer who administers an in-person or photographic lineup does not know which of the people is the suspect, and thus cannot deliberately or unintentionally influence the witness.
  • Develop and use standardized witness instructions at identification procedures.
  • Document witnesses’ level of confidence in their judgments at the time of the identifications.
  • Videotape all identification procedures.

The Report also recommends that judges take steps to assess the value – and possible dangers – of eyewitness identifications by conducting pretrial inquiries about eyewitness identifications regardless of whether one of the parties raises an objection to the admissibility of the evidence.  In the same vein, the Report recommends that judges make juries aware of the pitfalls of eyewitness identification by admitting expert witness testimony, requiring detailed evidence of the circumstances of identifications, and giving jury instructions on how to evaluate eyewitness testimony.

Finally, the Report calls for better data collection and more scientific research. In particular, the Report finds that existing research does not support a conclusion one way or the other on the comparative value of sequential lineups – in which the people or pictures are presented one at a time – as compared to the older and more common practice of simultaneous lineups, in which a witness is shown a line of several people or an array of photographs all at once. The Report recommends additional and better studies comparing these two procedures. The Report also recommends the creation of a National Research Initiative on Eyewitness Identification to coordinate future research and help make use of its findings.

As of October 14, 2014, 35% of the exonerations in the Registry include mistaken eyewitness identifications, 509 cases out of 1446. The distribution of all known exonerations that include mistaken eyewitness identifications by category of crime is displayed in these graphs, and was discussed in a recent Registry newsletter.


-  Kaitlin Jackson & Samuel Gross




Female Exonerees:

Trends and Patterns


Only 8% of the exonerees we know about are women (119/1,432), about the same proportion as female prison inmates in the United States. 


There are two major, interrelated differences between female exonerees, as a group, and male exonerees.

Child victims: 40% of the women in the Registry (47/119) were exonerated of crimes with child victims, compared to only 22% of male exonerees (293/1,313). Most of these women were convicted of child sex abuse – 22%, compared to 11% of male exonerees – but none were convicted of sexual assault on an adult. In addition, nearly 30% of female homicide exonerees were convicted of killing children (15/51), but only 17% of male homicide exonerees (105/601).

Nonetheless, men account for 86% of exonerations with child victims because male exonerees outnumber females by 11 to 1.

No-crime cases: 63% of female exonerees were convicted of crimes that never occurred (75/119), three times the rate for men (21%, 271/1313). Seventy-five percent of female no-crime exonerations involved violent crimes (56/75); and in three-quarters of those cases the supposed victims were children (42/56).

Nearly 90% of women exonerated of crimes against children were convicted of violent crimes that never happened (42/47). Nearly 70% of these cases were in two comparatively uncommon categories:

  • Child sex abuse hysteria cases. None of the 26 women exonerated in a child sex abuse case was convicted of a crime that actually occurred. (By comparison, 27% of men exonerated in child sex abuse cases were convicted of actual crimes that other men committed.)  The major reason is that 80% of these women (21/26) were exonerated in "child sex abuse hysteria" cases.

From the mid-1980s to the mid-1990s, some prosecutors and child welfare workers around the country became convinced that people caring for children, often day care workers and school employees, were sexually abusing those children on a massive scale. More than a hundred defendants were convicted as a result, often based on accusations including bizarre, unsubstantiated and highly improbable satanic rituals. The Registry lists 51 child sex abuse hysteria exonerees, 21 women and 30 men; all were convicted of crimes that never happened. They make up 0.2% of exonerations of men, but 28% of exonerations of women.

The most recent child sex abuse hysteria conviction in the Registry occurred in 1995. Since then, only one woman has been exonerated for any crime involving child sex abuse.

  • Shaken Baby Syndrome cases. Twelve exonerations involve "Shaken Baby Syndrome" or SBS (now called "Abusive Head Trauma"). In almost all, the exonerees were convicted on a now widely discredited theory that violent shaking of infants can produce immediate and extreme neurological damage or death without external or skeletal injuries. It now appears that these deaths and injuries were caused by unrelated accidents or undiagnosed pathologies.

Two-thirds of SBS exonerees are women (8/12), which is hardly surprising. One implication of the theory of SBS is that the infant was injured or killed by shaking by the last adult who took care of the child before medical personnel intervened, and women do the vast majority of the work of caring for infants.

Five additional women were exonerated after convictions for killing children who died by accidental means unrelated to claims of shaking.

A terrible consequence of these trends is that some innocent mothers –Teresa Engberg-Lehmer and Nicole Harris, for example –must grieve for children who died of accidental or natural causes, while in prison for killing those children themselves.

In sum, while most female exonerees were falsely convicted of violent crimes against adult victims, or of non-violent crimes, a substantial and disproportionate minority were convicted of violent crimes against children, usually violent crimes that never happened. Judging from known exonerations, women are the likely victims of false convictions for violent crimes that are believed to have been committed by care-takers in roles that are overwhelmingly filled by women – as parents and other family care givers, and as day care workers and teachers of young children.


- Kaitlin Jackson & Samuel Gross





Women make up 8% of known exonerations, about the same proportion as female prison inmates in the United States.  … A substantial and disproportionate minority of female exonerees were convicted of violent crimes against children, usually violent crimes that never happened.  …Women are the likely victims of false convictions for violent crimes that are believed to have been committed by care-takers in roles that are overwhelmingly filled by women – as parents and other family care givers, and as day care workers and teachers of young children.

Read the full story here.


​The United States Attorney's Office for the District of Columbia will soon have the first Federal Conviction Integrity Unit in the United States. U.S. Attorney Ron Machen announced that the Unit will consist of one veteran prosecutor with responsibility for reviewing post-conviction cases in which the defendant has a claim of innocence. It is not yet clear when the Unit will begin to review cases.


The Arson Research Project recently released a report that describes the root causes of wrongful arson convictions, using several arson exonerations as examples. Paul Beiber, director of the project and author of the report, explains some of the overarching issues in a video on the Arson Research Project website. The Registry recently added a new Tag - "A" for "Arson" - that identifies exonerations in cases that included allegations of arson, whether or not the defendants were charged with or convicted of arson.


In State v. Crumpton, decided on August 21, 2014, the Washington State Supreme Court addressed the standard for granting post conviction DNA testing. The Court held that when a defendant requests a post-conviction DNA test "a court should evaluate the likelihood of innocence based on a favorable test result, not the likelihood of a favorable test result in the first place." The decision reversed the state Court of Appeals because that court failed to "include ...[a] presumption in favor of the convicted individual."


​The National Association of Criminal Defense Lawyers recently published a comprehensive list (and online database) of laws in each state regarding the recording of custodial interrogations. These resources were compiled by Thomas Sullivan, of Jenner & Block, a longtime advocate of recorded interrogations. The NACDL also lists national organizations that have taken positions on recording custodial interrogations, as well as rules and regulations for recording interrogations in foreign jurisdictions. 


​Fancy Figeroa, who was added to the Registry in July 2014, was raped in 1997 when she was 16 years old and pregnant. Police believed she invented the allegation to explain the pregnancy, and charged her with filing a false report. She pled guilty and was required to do community service in exchange for eventual dismissal of the charge. Seventeen years later DNA from her rape kit was matched to a serial rapist who admitted that he raped her as well as other victims.



In response to growing skepticism about arson investigations conducted by the Texas State Fire Marshal, the Fire Marshal volunteered to turn over more than a decade's worth of casework to the Innocence Project of Texas. The review has been largely prompted by allegations of flawed arson science in several high-profile cases, including that of Cameron Todd Willingham—who was executed in 2004 for allegedly setting the fire that killed his three daughters. The Registry includes several cases where defendants were exonerated of arson after a fire was later determined to be accidental, including those of Ernest Ray Willis and Victor Caminata.


​The errors uncovered in an investigation into flawed forensic hair analysis by the FBI's crime lab may be far more numerous than originally thought. Hundreds of convictions may have been affected by examiners who testified that they could match hairs to specific defendants using practices that the Department of Justice now says "exceeded the limits of science." The investigation was halted in August 2013. It was restarted recently after the department's Inspector General issued a report stating that in some cases the delays in the review process may have caused "irreversible harm."


​Michael Phillips will soon be the first innocent defendant in the country to be exonerated by a program of systematic DNA testing by a prosecutor's office even though he was not asserting his innocence or asking for DNA testing. His exoneration is the work of the Conviction Integrity Unit of the Dallas DA's Office - the first such unit in the country, founded by DA Craig Watkins in 2007. The Systematic DNA Testing Project was suggested by Registry Editor Sam Gross, who worked on it with the Dallas DA's Office. A copy of the Unit's Report on the Phillips case can be found here.


It took the FBI nearly five years to identify more than 60 death-row defendants whose cases included evidence from one or more of 13 FBI crime lab examiners whose work was found to be flawed, according to a report by the Inspector General of the United States Department of Justice. As a result, at least three defendants were put to death before their cases were identified for further review.

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