Agencies should ask eyewitnesses to express verbally how confident they are in their identification at the time it is made and should document that verbal representation.
Comment:
a. Documenting confidence. It is crucial to document, preferably using a recording following § 10.08, the confidence of an eyewitness at the time of an initial eyewitness identification procedure. The reason why is that confidence can change over time. The confidence of an eyewitness is comparatively more reliable at the time of the initial identification procedure than subsequently, such as in the courtroom. Although eyewitness memory and confidence are both malleable, they do not naturally improve over time. Absent documentation of the confidence of an eyewitness, there may be no record that the confidence of an eyewitness has been artificially enhanced over time, for example, by suggestion, reinforcement, or feedback.
b. Qualitative statements. Although scientists might prefer that confidence be recorded using a numerical scale, few agencies have followed such an approach, due to a concern that quantitative scores might be misunderstood in the courtroom. Instead, the approach has been to record confidence by asking an eyewitness to express it in his or her own words. It is important that the confidence statement not be anchored by any suggestions from the administrator. For example, an eyewitness should not be given a constrained set of pre-selected responses, or be simply asked if he or she is absolutely sure or not. An officer should ask an eyewitness to report his or her confidence and the officer should document it verbatim.
c. Recording. Recording or videotaping entire identification procedures also can ensure that a confidence statement is recorded accurately. Whether recorded or not, however, police should be trained carefully not to provide any suggestion or encouragement prior to the lineup procedure, which would make the confidence statement a less reliable indicator.
Reporters’ Notes
At trial, a confident eyewitness can be extremely powerful to jurors. That confidence may not correspond to reliability, however. For example, the eyewitness may not in fact have been sure at the time of the earlier eyewitness identification procedure, and high confidence exhibited at trial may be inflated. “At trial, an eyewitness’ artificially inflated confidence in an identification’s accuracy complicates the jury’s task of assessing witness credibility and reliability.” Perry v. New Hampshire, 132 S. Ct. 716, 731-732 (2012) (Sotomayor, J., dissenting).
Although courts sometimes have focused unduly on the confidence of an eyewitness in the courtroom, the confidence of an eyewitness at the time of an eyewitness identification procedure can provide important information about the reliability of an identification. John Wixted & Gary Wells, The relationship between eyewitness confidence and identification accuracy: A new synthesis, 18 Psychol. Sci. Pub. Int., 10-65 (2017).
For that reason, leading scientific groups have recommended strongly that the confidence of an eyewitness be carefully documented, in a manner in which that confidence is not influenced by the officer conducting the procedure. Such a confidence statement should permit the eyewitness to express confidence without any influence or suggestion. Although a numerical score might be more objective, agencies have favored asking the witnesses to express confidence in his or her own words. See Nat’l Research Council of the Nat’l Acads., Identifying the Culprit: Assessing Eyewitness Identification 107 (2014) (“the administrator should obtain level of confidence by witness’ self-report (this report should be given in the witness’ own words) and document this confidence statement verbatim.”); see also 2019 Report of the Third Circuit Task Force on Eyewitness Identifications 16 (2019) (“The Task Force . . . recommends that after a show-up, lineup, or photo array, witnesses be given no feedback, and that a verbatim statement of confidence be recorded by the blind administrator.”). The procedures outlined here are cumulative: the confidence statement is only reliable evidence if the procedure itself was blind or blinded and conducted properly, and if there has not been any suggestion to otherwise affect the confidence of the eyewitness. Wixted & Wells, supra.
Courts have long treated the confidence of an eyewitness as a marker of the eyewitness’s reliability, but in a manner not supported by scientific research. For example, in Manson v. Brathwaite, the U.S. Supreme Court emphasized the eyewitness’s level of certainty as a factor that should be considered when evaluating the reliability of an eyewitness identification once it has been determined that there was undue suggestion. 432 U.S. 98, 114 (1977). Although confidence at the time of an eyewitness identification procedure can provide evidence of reliability—as opposed to confidence at the time of a court procedure, which is not reliable—confidence at the time of an eyewitness identification is not a reliable indicator if officers have engaged in suggestion.
Suggestion, including signaling or bias in the lineup, or reinforcement or feedback, can increase the confidence of an eyewitness in predictable ways. Such false confidence is not to be credited. And yet, the Supreme Court’s “reliability” test in Manson does exactly that: it excuses undue suggestion by allowing a judge to point to the resulting confidence of an eyewitness. For that reason, scientists have condemned that test as itself unreliable. See NRC, Identifying the Culprit, supra, at 6 (“the test treats factors such as the confidence of a witness as independent markers of reliability when, in fact, it is now well established that confidence judgments may vary over time and can be powerfully swayed by many factors.”); see also Gary L. Wells & Deah S. Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme Court’s Reliability Test in Light of Eyewitness Science: 30 Years Later, 33 Law & Hum. Behav. 1, 16 (2009).
The experience from known wrongful-conviction cases bolsters the concern among researchers that confidence statements provide useful information, but only if an eyewitness identification procedure is conducted properly to eliminate suggestion. Among persons exonerated by DNA testing, not only did mistaken eyewitness identifications occur in three-quarters of the cases, but—almost without exception—those mistaken eyewitnesses testified at trials that they had complete confidence that they had chosen the culprit, despite earlier uncertainty expressed at the time of their identifications. Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 63-68 (2011).
Careful documentation of confidence at the time of an eyewitness identification is particularly important given the malleability of confidence and the changes in a witness’s confidence that may occur during the preparation for a trial. As the National Academy of Sciences put it, “confidence levels expressed at later times are subject to recall bias, enhancements stemming from opinions voiced by law enforcement, counsel and the press, and to a host of other factors that render confidence statements less reliable.” See NRC, Identifying the Culprit, supra, at 74.
Thus, the recommendation is that police ask about eyewitness confidence in an open-ended way, without leading or suggesting (for example) that an eyewitness must be 100 percent certain. The recommendation is also that police ask an eyewitness to describe confidence in their own words. Doing so avoids forcing an eyewitness into rigid boxes, such as “completely sure, not sure,” and the like, which similarly may lead the eyewitness or affect confidence. More research may develop improved methods for assessing eyewitness accuracy and confidence in the future. See NRC, Identifying the Culprit, supra, at 79. For example, the time that an eyewitness takes to make an identification may be associated with accuracy, but further research is necessary to examine that possibility.