8.4 You Decide
On June 18, 2006, Jennifer Thompson wrote an article in the New York Times recounting her devastating ordeal in 1984 when a male assailant broke into her locked apartment while she was asleep and raped her. Jennifer had the presence of mind to maneuver her attacker into the dimly lighted area of her otherwise dark apartment in order to observe his distinguishing features.
Jennifer later provided the police with a detailed descriiption of her attacker. A few days later, Jennifer, who is Caucasian, identified her African American attacker from a number of photographs and subsequently identified him in a lineup. She explained that her memory was relatively fresh and that Ronald Cotton looked exactly like the man who raped her and matched her assailant’s height and weight. It turned out that Ronald Cotton’s alibi was fabricated and that his family’s explanation that he was asleep on the couch on the evening of the rape was contradicted by testimony that he was seen riding his bike late at night. The police subsequently seized a flashlight under Cotton’s bed that was similar to a flashlight allegedly used by the assailant, and the rubber on Cotton’s shoes was consistent with the rubber found at the crime scene.
In 1986, Jennifer took the stand and identified Cotton as her rapist, and he was convicted and sentenced to life imprisonment. Cotton’s conviction was overturned on appeal. At his subsequent retrial, a second woman who had been raped the same evening as Jennifer identified Cotton as her rapist and explained that she had been too scared to identify him at the time of his original trial. Cotton once again was convicted and sentenced to two life terms in prison.
In 1995, DNA evidence indicated that the man responsible for raping both women was Bobby Poole, an inmate who had bragged for a decade that he was responsible for the attacks. Cotton subsequently was pardoned by the governor of North Carolina. Jennifer to this day recounts that when she relives her rape, her rapist is Cotton.
The primary explanation for false convictions for rape is inaccurate eyewitness identifications. In 2014, the National Research Council of the National Academies, an organization of distinguished scholars, in its study Identifying the Culprit: Assessing Eyewitness Identification, concluded that faulty witness identifications are present in almost three-quarters of DNA exonerations. Cross-racial identifications are particularly inaccurate.
Identifications typically are conducted in three ways:
• Photo arrays. An eyewitness or victim is asked to identify the suspect from a catalogue of photos.
• Lineups. An eyewitness or victim is asked to identify a suspect from a lineup that typically includes five other “fillers” or individuals who are not suspects.
• Showup. An eyewitness or victim is presented with a single suspect and asked whether the individual is the perpetrator.
These procedures at times are used in conjunction with one another. The eyewitness or victim at trials typically is asked to identify whether the individual at the defense table is the perpetrator and whether this is the same individual the witness identified. It is conventional wisdom among criminal lawyers that there is little that is more convincing to a jury than a witness who takes the stand and identifies an individual as the perpetrator of the crime.
How common are the types of misidentifications that occurred in the Ronald Cotton case? There have been more than 450 lineup studies and thousands of studies on facial recognition. Dan Simon in summarizing these studies writes that when a guilty individual is in a lineup, one in every three individuals selected is in fact innocent (D. Simon 2012: 51, 54).
There is a strong impulse for witnesses to want to identify someone in the lineup as the perpetrator. Witnesses who select a suspect in a lineup when shown an identical lineup without the perpetrator they originally identified simply select someone else (Benforado 2015: 112–113).
At least eighteen states have reformed their identification procedures to improve accuracy in accordance with social science research. These reforms include a lineup administrator, who is unaware of the suspected perpetrator, instructing the eyewitness that the real perpetrator may or may not be in the lineup; placement in the lineup of non-suspects who match the witness’s descriiption of the suspect; and asking eyewitnesses about their confidence in their identification. Another reform in improving accuracy is to view suspects one at a time rather than as a group.
Why is there such a high incidence of misidentifications? How could these identifications be made more accurate? Should the jury receive instructions on the inaccuracy of eyewitness identification?
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