Eyewitness ID should be improved

Clarence Elkins is a free man today because modern technology was deadly accurate and the "eyewitness" was dead wrong. A relatively new form of DNA analysis cleared the Canton, Ohio, native who served more than seven years behind bars for a crime he did not commit. Now, only time will tell what the future holds for Elkins.
Two years ago Steven Avery was released from a Wisconsin prison after serving 18 years for a rape he did not commit. He too, was exonerated by DNA evidence. Also, like Elkins, he was convicted through the eyewitness testimony of a single witness. However, that is where the similarities end. Avery was recently re-arrested for the murder of a 25- year-old photographer who disappeared last Halloween in Wisconsin.
Those who champion the cause of convicts, claiming to be falsely accused, often cited Avery's case. He toured the country talking about his experience and the inadequacies of the criminal justice system. Avery argued, as Elkins will in his suit against the state of Ohio, that eyewitness testimony can, at times, be wrong.
Prosecutors and police officers are struggling to address the rare and unfortunate phenomenon of inaccurate eyewitness identification. Dr. Elizabeth Loftus, co-author of "Witness for the Defense" said, "Despite the obvious risks inherent in eyewitness identification, it would be a tragic mistake to exclude all eyewitness testimony, because very often, as in cases of rape, it is the only evidence available and often eyewitness identification testimony is correct." She went on to say, "We cannot, we dare not, assume that our criminal justice system works perfectly."
Yet, some reformists suggest that the system should be perfect. Rob Warden, director of Northwestern University's Center on Wrongful Convictions, told the Christian Science Monitor that, "Eyewitness identifications are so inaccurate that there's a question about whether they even ought to be admissible in court." As Dr. Loftus aptly pointed out, the criminal justice system is not perfect. In fact, inherently the system does not provide for perfection. The burden of proof in a criminal case is beyond a reasonable doubt, not beyond all doubt.
Memory contamination
Inaccurate eyewitness identification has been attributed to everything from memory fallibility to memory contamination. The theory of memory contamination derives from the intentional or unintentional influence on an individual's memory. The unintentional nod of the head by a police officer during a photo array; the request of a witness to "look again" at a specific photograph in a line-up; the suggestion that the accused is one of the six people in a line-up, all have been cited as causes of memory contamination.
Three strategies have been proposed by the United States Department of Justice to improve the reliability of eyewitness identification. Initially, the instructions prior to a line-up should not be suggestive. Secondly, the line-up should be sequential. Only one person or photograph should be displayed at a time. Finally, the line-up should be administered "blindly." The police officer conducting the line-up should not know the identity of the actual suspect.
Unfortunately, all three suggestions may be virtually impossible for the hundreds of small police departments in Ohio and Pennsylvania. The Department of Justice recommends that all three strategies be administered "blindly." A part-time police officer in a rural municipality may be the only officer in the department on duty. How would one officer provide for "blind" administration?
Technology may help. Computer sorted photographs that a witness can review sequentially, in private, may help small departments. The next question is resources. Where do small municipalities get the revenue to invest in the technology?
The Department of Justice has provided a framework that may improve the accuracy of eyewitness identification. If measures are adopted with realistic objectives and adequate funding, the process of identification may improve, but will not be perfect. However, the criminal justice system has never required the absolute certainty that comes with perfection.
Matthew T. Mangino is the former district attorney of Lawrence County and a featured columnist for the Pennsylvania Law Weekly.