How Witness Mis-Identification Can Happen In Criminal Court

November 30, 2021

By Jill K. Sanders, Esq.

When police investigate a crime, they ask victims and witnesses if they could identify the perpetrator. This is especially so in cases where the crime is committed by a stranger. Yet victim or witness identification is not as reliable as it may seem. And in some cases, this can lead to wrongful convictions.


Types of Identification

There are several ways that police may ask victims or witnesses to make identifications.

  • Line-up. Often portrayed on television, in a line-up police will put a group of similar-looking persons in a room standing next to each other. The witness will be behind a one-way mirror where they can see the line-up, but those in the line-up can’t see the witness.
  • Show-up. In contrast to a line-up, a show-up is when the witness observes only one person. This may put the witness and suspect face-to-face. For show-ups, this could even occur at the crime scene. 
  • Photo array. Sometimes called a “six pack,” a photo array is a group of six photos shown to a victim or witness.
  • Photo identification. In some cases, the police may simply show a witness a photo of someone suspected of the crime.
  • In court. When giving testimony in court, a witness may make an identification of a suspect.


Issues With Witness Identification Procedures

Sometimes, the identification procedure can be suggestive – meaning, it’s letting the witness believe they’re getting it right. To safeguard against this in line-ups and photo arrays, the suspect and other individuals should be of a similar race, complexion, build, etc. They should also be dressed in similar clothes.

There are other ways in which such identifications can be less suggestive. For example, the police officer be “blind,” meaning they are unaware who the suspect is. Additionally, it may be best for the witness to only view one photo or individual at a time; this is called a sequential line-up or photo array. The witness should also be reminded that the suspect may or may not be present in line-ups and photos.


Issues With Human Memory

It’s important to note that human memory is not photographic – meaning, a witness’s memory many not be so reliable. Specifically, there are several factors that may affect a witness’s ability to identify someone.

  • Whether they could see the person, depending on light and visibility conditions
  • If the witness was under the influence of drugs or alcohol
  • The distance between the suspect and the witness
  • If “weapon focus” caused the witness not to get a good look at the suspect’s face
  • What the suspect was wearing (i.e. a disguise or mask)

If a victim or witness had any pre-existing bias or belief relating to the events or the suspect, that could also affect their ability to identify the true perpetrator. A victim’s memories can change over time; this is particularly true if they are exposed to information about the crime.

And there is much evidence to support that cross-racial identifications can be very difficult and problematic. For example, it is well documented that people are much better at identifying suspects who of their own race or ethnic background.


Recent New York Case Involving Mis-Identification

Anthony Broadwater spent 16 years in prison for the 1981 rape of Alice Sebold at Syracuse University. Ms. Sebold penned the memoir Lucky about her sexual assault, and she is the author of novels The Lovely Bones and The Almost Moon.

Ms. Sebold’s attacker was a stranger – yet five months after the assault, she said that he walked by her, stating, “Hey, girl. Don’t I know you from somewhere?” When she called police, Mr. Broadwater soon became a suspect. Ms. Sebold was unable to identify Mr. Broadwater in a line-up, yet she was permitted to identify him at trial. Forensic hair evidence was also used to convict Mr. Broadwater of the crime.

Mr. Broadwater steadfastly maintained his innocence and, in November 2021, he finally had his conviction vacated. The forensic evidence has since been discredited, and the Onondaga County District Attorney joined in the application to have the conviction overturned.