NEW LAW UPDATE

Eyewitness identifications are one of the most common causes of wrongful convictions. Data published by the Innocence Project indicates that a full 75% of convictions later overturned by DNA evidence involved erroneous identifications.

This is, in large part, because an eyewitness identification is such powerful evidence and when a witness honestly believes what they are saying, even if they are wrong, it is incredibly difficult for a jury to disregard. We like to believe our minds work like cameras, but science has revealed just how poorly humans perform as eyewitnesses. The inherent fallibility of memory is further compounded by both conscious and unintentional actions on the part of law enforcement that can influence a witness’s identification.

Fortunately, science has also identified a number of best practices that can improve the accuracy of identifications. Unfortunately, the actual procedures of law enforcement have been slow to catch up with science. In 2017, the Department of Justice issued a set of best practices that pertain to federal law enforcement agencies seeking identifications from witnesses, but local police departments have been slow to adopt these practices.

Penal Code section 859.7 aims to change that. The statute that became law on January 1^st requires all California law enforcement agencies to adopt regulations for photo and live lineups with eyewitnesses.

The statute also mandates certain minimum requirements, including:

• Obtaining a description of the perpetrator prior to the lineup and as close in time to the crime as possible. This is crucial because it creates a record of what the witness remembered before they viewed photos of potential suspects, which can often influence a person’s memory going forward.
• Where possible, the officer conducting the lineup shall use blind administration, meaning the officer should not know which of the photos or people that the witness is viewing are the actual suspect. Voluminous science has shown that when the person administering the lineup knows who the suspect is, they can both consciously and unconsciously engage in behavior to affect the lineup, including suggesting that the witness focus on a particular person or providing positive feedback if they witness selects the suspect the officer hoped that they would.
• Towards that end, the law also requires that the officer not validate or invalidate the selection.
• All identifications shall be audio and video recorded. This is again important as research shows that generally if a witness spends considerable time “trying” to make an identification, the expected accuracy of the identification drops significantly.

This bill is a great start, if overdue, to taking some easy and commonsense steps to ensure that eyewitness lineups are more accurate. It also provides a fertile area for cross-examination of any officer who does not comply with the requirements. If you or a loved one has been the victim of mistaken identification, contact my office immediately!