Risks of Mistaken Identification

Experiencing, Remembering, and Reporting Events

Ralph Norman Haber & Lyn Haber, 6 Psychol. Pub. Poły & L. 1057 (2000).

Let’s just say that eyewitness accounts are not as reliable as they might seem. The more complex the event the eyewitness is asked to recall, the more unreliable that testimony becomes (despite the certainty expressed by the witness). The cited article explores what influences how witnesses encode and recall the encoded information in reports. Several of the factors that influence the testimony of eyewitnesses include: whether the perpetrators had a weapon, how many perpetrators there are, whether there are other bystanders, the angle of view towards the perpetrators, how often the witness was asked to recall the information before visiting with police, how many officers the witness talks to, etc.

All of this to say, in simple situations eyewitnesses can be accurate about 90% of the time, average situations drops that percentage to around 75% accuracy, and more complex situations drop accuracy of descriptions below 50%. Thus, it makes sense that eyewitness accounts results in the highest number of wrongful convictions (as compared to other identification methods). Additionally, even if the witness feels like the suspect is not present in the lineup, 60% of people will still make an identification of the criminal.

Exclusion of Identification Evidence (Based on Right to Counsel)

United States v. Wade

388 U.S. 218 (1967).


Whether a pre-trial line up without the notification or presence of the defense counsel is a violation of the Sixth Amendment right to counsel.


After initiation of the criminal proceeding (defined in another article), the defendant has the right to counsel before any corporeal identification is made. If the identification is made in violation of this rule, a suppression of an in-court ID is also excluded unless the state can show that the in-court identification is independent from the lineup procedure.


Counsel was not present during the line-up, that evidence must be excluded. Additionally, the identification at trial out to be reevaluated to determine how much it relied on the identification made at the line-up. Reversed and remanded


After a bank robbery where only the teller and bank president were present (besides the robber), Wade was apprehended and brought before the court. He had counsel appointed to him. Later, the teller and bank president were invited to a line-up to identify the robber. Wade was included in the line-up without any notice provided to his counsel. At the line-up, both individuals identified Wade as the robber. Further, at trial, both individuals identified Wade as the robber.


Since the founding, the purpose of the Sixth Amendment was to allow defendants to be confronted with their accusers. In other words, defendants were to have the opportunity to cross-examine the accuser. The government argues the line-up is simply procedural, much like the process of fingerprinting or record searches (there is no right to counsel in those situations). However, the Court disagrees, saying that the line-up is a critical stage of the investigatory process where the defendant is presented to the accuser without the ability to cross-examine the declaration. The right to counsel is there to protect the defendant from an uncontested accusation. Further, presenting this evidence at trial does nothing to relieve the burden on the defendant, where all he can do is deny the accusation.

On the other hand, the concurring and dissenting opinion argues this analysis reaches too far and prohibits officers from creating line-ups (due to the difficulty in having counsel present for each individual involved in the line-up).

People v. Hickman

684 N.W.2d 267 (Mich. 2004).


Whether the Wade rule extends to pre-prosecutorial identifications.


All pre-prosecutorial identifications are not a violation of the Sixth Amendment (the right to counsel has not attached yet).


Here, this was a pre-prosecutorial identification and thus the right to counsel had not attached. The evidence may be admitted against the defendant.


After a witness was robbed by two men, one with a gun, he called 911 and provided a description of the two robbers and the gun. After the police apprehended a suspect who attempted to flee on foot and discard a weapon, the officers brought the witness to the police car where the suspect was being held. Immediately the witness was identified as the robber holding the gun.


After Wade was decided, this court handed down People v. Anderson which extended the right to counsel to any situation where the suspect is being identified (regardless of whether prosecution has begun). This rule was confusing to the court, resulting in other cases trying to define how sufficient the evidence was before the right was applied. See People v. Dixon (requiring more than a mere suspicion, if that exists, then the right applies) and People v. Turner (requiring very strong evidence for the right to apply).

The dissent argues overruling Anderson leaves the suspect with no protection during the identification stage of the investigatory process. Essentially, as long as the suspect has not been charged or brought to a tribunal, the suspect is subject to the whims of the investigatory officer who may be influencing a witness to identify the suspect as the perpetrator.

Additional Notes

Due to this timing, most identification procedures are not a violation of the right to counsel. Additionally, there is no right to counsel for a photo array United States v. Ash, U.S. (1973), or showsups.

Exclusion of Identification Evidence (Based on Due Process)

State v. Henderson

27 A.3d 872 (N.J. 2011).


Whether the identification made by the witness is reliable and should be admitted at trial.

Federal rule

Consider Mason v. Brathwaite, 432, U.S. 98 (1977), which provides a two step analysis.

  1. Whether the procedure of identification is impermissibly suggestive.
  2. Whether the objections procedure resulted in a “very substantial likelihood of irreparable misidentification.” In other words, is the identification reliable?

To test reliability, the Court relies on five factors outlined in Neil v. Biggers, 409 U.S. 188 (1972):

  1. What opportunity did the witness have to view the criminal at the time of the crime
  2. How attentive was the witness
  3. Is the description of the criminal accurate as provided by the witness
  4. How certain the witness is of the identification
  5. The gap between the crime and the identification procedure
State test

Taken together, the court should consider the following non exhaustive systematic and estimator variables.

Systematic variables (identification procedure):

  • Blind administration
  • Pre-identification instructions
  • Lineup construction
  • Feedback
  • Recording confidence
  • Multiple viewings
  • Showups
  • Private Actors
  • Other identifications made

Estimator variables (witness reliability):

  • Stress
  • Weapon focus
  • Duration
  • Distance and lighting
  • Witness characteristics
  • Characteristics of perpetrator
  • Memory decay
  • Race-bias

The federal test is fundamentally flawed and therefore analysis of systematic and estimator variables should be evaluated during a hearing. Because that was not done here, this case is remanded for further proceedings.


Womble witnessed the murder of his friend Harper. On the night in question, the witness and his friends were under heavy influence during New Year’s celebrations. Some time during the celebrations, two men joined them and demanded talking to the victim about money he owed. Womble was threatened to stay out of it by one of the individuals who was holding a gun (Womble had a look, but not a “good look” of this individual). Harper and the two men left the apartment. A short time later, Womble heard gunshots, entered the hallway, and saw that Harper had been shot. After paying the men the money they demanded of Harper in exchange for a ceasefire, Womble was warned not to “rat” out the shooter because they knew where he lived.

Ten days later the police took Womble in the station to identify the second individual. A secondary detective ran the identification procedure. Womble was presented with eight photos and he quickly discounted five of them. He struggled over the last three then eventually the final two. When he couldn’t make up his mind, the secondary detective left and told the primary detectives the decision had been narrowed down to two. The primary detectives then entered the room and told Womble he didn’t need to fear for his safety. In response, Womble stated he could make an identification. At this point, the secondary detective reentered the room, shuffled the photos, then presented them. Almost immediately after being shown the defendant, Womble identified him as the second man.

At the evidentiary hearing, Womble stated that he felt pressured into making a decision and the officers had nudged him into selecting the defendant’s photo.


Recognizing the issues with eyewitness testimony, the state is averse to making it easier to admit any testimony that may have reliability issues. For this reason, the state wishes to utilize a test designed to correct the errors and gaps left by the federal test. To do so, they will test (1) whether the identification was made in error of any systematic (procedural) influences made by the officers and (2) whether the witness’s identification is reliable based on estimator variables. (Both these factors are outlined above).

Applying those factors in this case, the court is sure that the systematic variables resulted in suggestive behavior (officers telling the witness to make a decision). However, the district court still needs to review the estimator variables, so the case is remanded for an expansive hearing addressing those factors.

Additional Notes

Here are all the options for eyewitness identification:

  • Classic Lineup: All the suspects are gathered in the same room that meet the same description. This isn’t used very often anymore because of the cost of gathering everyone.
  • Photo Array: Using a group of photos who match the description. This is the most common method of identification.
  • Single Photo “Showup”: The officers show only one suspect to the witness asking whether there is an identification (this is not used often because it is suggestive).
  • Non-Photo “Showup”: Right after the crime, the suspect is taken directly to the suspect for identification.
  • In-Court Identification: Taking the suspect to court and identification occurs for the first time there. This does not happen often because it is highly suggestive.

State v. Ramirez

817 P.2d 774 (Utah 1991).

Three victims were robbed outside of a Pizza Hut by individuals wielding a pipe (“pipeman”) and a gun (“gunman”). After the robbery, the victims described the assailants as young male Mexicans dressed with blue jeans and blue sweatshirt. Ramirez is an Apache Indian who is identified during a showup 45 minutes later where Ramirez was handcuffed to a fence surrounded by officers. No other individuals were shown to the victims at the time of identification and only one victim made a solid identification.

Under the federal standard, this is very suggestive. Considering the Neil factors, the Utah Supreme Court determined that the evidence was sufficiently reliable to be admitted (even though the evidence are pretty close).

State v. Masaniai

628 P.2d 1018 (Haw. 981).

Three victims were robbed by two assailants, a Samoan and a Filipino. The Samoan was identified as about 5’8″ and around 180 pounds with a short afro hairstyle. Masaniai is about 5’9″ and 160 pounds with a short afro hairstyle. During the lineup, there were seven participants where those without the afro were provided with a wig and those who didn’t have mustaches were given fake mustaches. The lineup occurred a few weeks after.

Here, this is not suggestive, but even if it was, the Neil factors show that the identification is sufficiently reliable. Both this case and Ramirez indicate that the rule if quite police friendly.

People v. Kurylczyk

505 N.W.2d 528 (Mich. 1993).

After a bank robbery and a tip off, the victims were given a photo array nearly two weeks later. In the pictures, the defendant was the only one dressed in the clothes that fit the description.

Once again, the court here determined that this case was not suggestive, and even if it was, the factors were sufficiently reliable. Again admission friendly.

Other Remedies

Jury Instructions

State v. Allen

294 P.3d 679 (Wash. 2013).


Whether the district court is required to provide a jury instruction regarding cross-racial identification.


No, no jury instruction is required, affirmed.


Kovacs is a white male who was harassed by two young African Americans. Running to a nearby gas station, Kovacs called the police and gave a description of the men’s height, weight, race, and clothing. No facial features were mentioned. After the officers approached two African American men near the scene of the event, one fled and the other (Allen) was taken into custody. Kovacs was asked if Allen was involved in the event and Kovacs said yes.

Allen was much taller and heavier than Kovacs had initially described. During trial Kovacs was not asked to identify the defendant, but stated the defendant looked different because he was wearing different clothes. Again, no identification was made based on the facial features of the defendant.

At trial, the defendant asked for a jury instruction regarding cross-racial identification (individuals have difficulty identifying specific individuals from another race). This instructions was denied and Allen was convicted.


Many states have taken several approaches to the proposed jury instruction. First, some require it; second, allowing it is up to the discretion of the court; third, outright deny the instruction because there are other protections during the trial. This court adopts the third approach. Those other protections include cross examination of the witness to test credibility, questioning of expert witnesses to provide information, and closing arguments again discussing reliability. Additionally, because these other protections exist, inclusion of the jury instruction does nothing to add value.

The concurrence agrees the instruction was not required in this case, but believes it should be required when the witness is making an identification based on facial features.

Finally, the dissent believes the instruction should be required. The three protections listed by the majority are minimal, especially when you consider the authority and inability of the witnesses to provide the information. A judge is much more authoritative and the instruction is quite useful (when considering how the other protections are quite unhelpful).

Additional Notes

Most jurisdictions (about 30) follow this approach and allow the trial judge the discretion to determine whether the jury instruction (called a Telfaire instruction) should be given.

Expert Testimony

Commonwealth v. Walker

92 A.3d 766 (Pa. 2014).

This is another late night robbery where the victims identify the defendant from a photo array. At trial, the defense filed a motion for liming to present the testimony of an expert discussing the imperfections of human memory.

The majority of states (30) allow this to be admitted up to the discretion of the court. A minority of the states (10) do not allow this type of evidence at all.

Consider People v. LeGrand, 867 N.E.2d 374 (N.Y. 2007) (an expert may be necessary if the identification is central and the only piece of evidence involved).


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.