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





​In an unusual turn of events Lane Tolbert, who prosecuted exoneree Frank Sealie, reopened the investigation shortly after Sealie was sentenced to life in prison, and secured the exoneration within ten months. According to Tolbert, "There was something about this one that stuck with me," and made him worry about the conviction. Tolbert, who describes himself as tough on violent crime, explained his doubts:  "If I know in other cases [that] inadmissible evidence points to the defendant I can know I was doing the right thing... Nothing else [except one eyewitness] pointed to Frank Sealie."


​In recent years, Shaken Baby Syndrome (SBS), now called “Abusive Head Trauma,” has come under fire as an invalid medical diagnosis—and yet it remains the basis of many prosecutions and convictions for child abuse, felony assault and homicide. The Washington Post, in an in-depth multi-part series examines the deep divide within the medical and criminal justice communities on the validity of this diagnosis.

The series includes an explanation and a history of this diagnosis, including visual aids; a survey of biomechanical testing on crash dummies designed to simulate babies; case studies, including interviews with parents and other caregivers who were prosecuted for supposedly injuring  or killing infants in their care; interviews with doctors and forensic scientists from both sides of the aisle, including some who have changed their minds over time in light of new evidence; and national data on almost 2,000 SBS prosecutions since 2001, including more than 200 that ended in dismissal, acquittal or exoneration after conviction.
The Washington Post series is a must-read for anybody who is interested in the issue. In addition, PBS recently did a segment on Shaken Baby Syndrome that is also useful for people hoping to learn more.

Currently there are 13 shaken baby exoneration cases in the Registry.


​A.M. "Marty" Stroud III,  the lead prosecutor who sent exoneree Glenn Ford to death row in Louisiana, publicly apologized in a long letter to the editor of the Shreveport Times on March 8. He explains, "I did not hide evidence, I simply did not seriously consider that sufficient information may have been out there that could have led to a different conclusion. And that omission is on me." Stroud urges Louisiana to pay Ford compensation for the 30 years he spent wrongfully imprisoned.

Other prosecutors have apologized for false convictions. Several weeks ago, for example Mark Larson, the Chief Criminal Deputy of the King County Prosecutor's Office in Washington state, wrote an impressive description of the exoneration of Brandon Olebar. But Mr.Straud's letter, coming from the very prosecutor who obtained Ford's death sentence, is uniquely powerful and moving.


A recent series in the Washington Post discusses the dangers of bite mark identification, a pseudo-scientific procedure that contributed to the false convictions of at least 17 exonerees. 

The scientific community has been highly critical of bite mark analysis. In 2009, the National Academy of Sciences found that it lacked a "scientific basis.” Nonetheless, practitioners of bite mark analysis cling to their practices, and their professional organization – American Board of Forensic Ondontology – has responded to research pointing out the flaws in the field by trying to discredit individual researchers. 

Worse, bite mark identification is still embraced as reliable science in courtrooms across the country. Some courts go so far as to say that bite mark analysis has reached a sufficient level of "general acceptability" that it should be admitted in evidence without a Frye or Daubert hearing to test its reliability. 

Unlike fingerprint or tool-mark identification, the question is not how to make bite mark analysis more accurate, but whether it should be used at all. Science points to no, but many judges say otherwise.


Everybody knows what they were doing when they heard about the 9/11 attacks on the World Trade Center, right? Wrong. Studies of such “flashbulb memories” show that while we remember the facts of the shocking event, we are often completely wrong about where we were, who we were with and so forth. Worse – we are likely to be confident in our errors. Elizabeth Phelps, a professor of psychology and neural science at New York University, has studied how the brain processes information in highly charged contexts. She finds that the more emotionally compelling an event, the stronger the memory for core information. But our vivid memory of the main event comes at a cost: our brains focus intensely on the central action, but miss or discard peripheral information. Phelps has worked to improve the accuracy of eyewitness testimony. Her conclusion: "Unless we are talking about the most central part of the recollection, assume that our confidence [in our memory] is misplaced. More often than not, it is."


​Three months after exoneration, adjusting to life outside of prison isn't easy for brothers Leon Brown and Henry McCollum. The only reentry assistance from the state was $45. Prison officials told Brown that official policies prevented prison doctors from writing a refill for his diabetes medication. In September, Governor Pat McCrory said he looked forward to issuing pardons for the brothers - which would make them eligible for $750,000 in compensation and help them get jobs - but four months later, he has not acted on their applications. Both live with their sister Geraldine Brown who moved back to North Carolina to help them make the transition to freedom. Thus far the road has been difficult.


​In 2014, for the first time in the United States, there were more than 100 exonerations in a single year—125 that are known to date, 34 more than the previous record of 91 exonerations in 2013. A major reason for the record number of exonerations is the impact of Conviction Integrity Units (CIUs), units within prosecutors’ offices that work to identify and remedy false convictions in cases they originally prosecuted. The National Registry of Exonerations’ 2014 Report, based on the 1,535 exonerations known as of January 20, 2015, also discusses trends such as the increase in exonerations in cases without biological evidence or with no actual perpetrator; cases with comparatively light sentences; and judgments based on guilty pleas. Check out out our infographic with 2014 exoneration records here.


​On January 8, 2014, attorneys for the ACLU asked the Massachusetts Supreme Judicial Court to order prosecutors to move more rapidly to resolve the status of thousands of criminal convictions that were called into question when Annie Dookhan (pictured), a former state crime lab chemist in Boston, pled guilty last year to faking test results in tens of thousands of Massachusetts drug cases. Many defendants have not been notified that their convictions were tainted by Dookhan’s misconduct, and that they may be entitled to have them reversed. The ACLU also asked the court to prohibit prosecutors from seeking longer sentences than originally imposed for defendants who challenge their convictions. The court's decision may set a precedent for handling future lab scandals across the country.


​The Los Angeles Times reports that many exonerees, such as Rafael Madrigal (at left), receive no compensation for the years spent wrongfully imprisoned, and those who do often wait for years after release. Parolees generally receive some assistance with housing, employment and other reentry services, but in many states exonerees are not eligible for any government support. Compensation statutes offer substantial financial support for some, but 20 states have no such provisions, and others limit compensation to exonerees who were cleared by DNA evidence, or exclude exonerees who pled guilty or who had criminal records before they were wrongfully convicted.


​Kenneth Ireland was exonerated of a rape and murder in 2009. This October, in an unprecedented move, Governor Dannel P. Malloy appointed him to the Connecticut State Board of Pardons and Paroles. At his first set of parole hearings Ireland used the knowledge he gained from 21 years in prison to ask pointed questions, and demonstrated an understanding of the issues facing prisoners and parolees that parole board members rarely share.

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