Judges across Minnesota will have access to training about the science behind eyewitness identification by the end of this year as the reliability of the practice remains a flash point of nationwide debate.
While some see the move as a first step in the right direction, others say it doesn’t go far enough. Several recommendations on the subject matter issued by a court committee will go unaddressed.
“We know from research that eyewitness evidence can be unreliable and quite faulty,” said Nancy Steblay, a psychology professor at Augsburg University who studies the topic. “Eyewitness evidence … not only is it so powerful to juries and fact-finders — we just seem to believe in eyewitnesses.”
The Minnesota Supreme Court issued an order in mid-December asking the State Court Administrator’s Office to “develop and provide” training for judges on eyewitness identification. However, it did not require that all judges attend the training.
The court could have done more, said Minnesota Chief Public Defender Bill Ward.
“The last thing you want is an innocent person convicted of a crime based on a false identification, so it should be a concern to everybody in the state,” said Ward. “I do not believe that the order … is sufficient to negate faulty identification.”
The topic has risen in prominence in recent years. The National Academy of Sciences published a study in 2014 looking at the science of eyewitness identification and outlined best practices law enforcement agencies should follow to avoid influencing witnesses.
In a 2016 armed robbery trial in Hennepin County, the defense argued that police ignored photo lineup science and coached the alleged victim into identifying the suspect of their choice. Police denied the claims. The suspect was acquitted at trial.
The state Supreme Court last year asked its Rules of Evidence Advisory Committee to examine the issue.
The committee issued its findings in October, recommending that the State Supreme Court “authorize district courts to consider scientific knowledge when determining whether an identification procedure is overly suggestive and an identification is otherwise reliable.”
In its report, the committee acknowledged that eyewitness identification is as complex as it is important.
“Accurate eyewitness identification can be critical evidence in an investigation and successful criminal prosecution,” the report read. “Erroneous or tainted eyewitness identification can result in wrongful convictions and create a danger to public safety when the true perpetrator goes free.”
It also recommended that the court clarify criteria for allowing experts to testify at trial about the science of eyewitness identification, that “factors” jurors are given about how to evaluate the credibility of an eyewitness identification should be updated, and that court officials should contact police departments to “advocate for the adoption of best practices” in gathering identifications from witnesses, among other recommendations.
The order did not specify why the court could not act on the other recommendations. The court later said through the State Court Administrator’s Office that the order “needs to speak for itself.”
Ward said he’s confused by the court’s assertion that it can’t act on more recommendations from its own committee.
“I have no doubt that the Supreme Court is sincere in its sentiments,” Ward said. “I just don’t think it’s sufficient enough.”
The public defender’s office across Minnesota has often tried to introduce expert testimony at trial about the science of eyewitness identification, he said. The office has also tried to add more specific instructions for juries about how to evaluate such evidence.
Ward said prosecutors and judges have challenged and denied such attempts.
“My concern is we’re being handcuffed in representing our clients,” Ward said.
Ramsey County Chief Judge John Guthmann said he could not recall such requests being made at trials he has presided over in his 11 years on the bench, and he would not know whether they have been made of his colleagues.
He likened the growing scrutiny and scientific study of eyewitness identification to the early days of DNA evidence.
“This is no different from any other type of scientific evidence,” Guthmann said.
The state Supreme Court’s committee report said Minneapolis, St. Paul and Duluth police and the Minnesota Bureau of Criminal Apprehension follow identification procedures approved by the National Academy of Sciences. But Ward said no one truly knows how departments across Minnesota are performing.
One possible solution, Steblay said, is video-recording witnesses while they identify suspects in photo lineups. Research shows that a witness’ confidence level at that point is a good indicator of the accuracy of their decision.
Meanwhile, Steblay said, most witnesses are very confident by the time they testify at trial even if they were initially uncertain about their identification at the time of the crime.
“When a case gets to trial, then it’s very difficult to untangle these things,” she said.