Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

Mistaken eyewitness identification is now well recognized as a leading contributor to erroneous convictions in the United States. Several years ago, Rene L. Valladares, writing for The Champion, observed that “eyewitness evidence is often fraught with inaccuracies, nevertheless, it has the power of a sledgehammer and it can swiftly put an innocent man behind bars.”¹ This month, I am pleased to report that NACDL has commenced litigation to stoke the embers of reform. (See NACDL News, page 6.) 

Fueled by a growing body of research, recent national efforts to reduce the risk of misidentification focus on the adoption of double-blind lineups and sequential viewing. In a double-blind lineup the administrator of the lineup is unaware of the identity of the suspect, and therefore cannot engage in any suggestive behavior, either intentionally or inadvertently. In a sequential lineup, the witness views each individual separately, minimizing the risk of a comparative identification, i.e., selecting the person who most resembles the perpetrator. Efforts to implement these reforms were gaining momentum, that is, until March 2006 when Illinois released a controversial report casting doubt on the efficacy of the sequential double-blind procedure. Formally known as Report to the Legislature of the State of Illinois: The Illinois Pilot Program on Sequential Double-Blind Identification Procedures, the study has been widely criticized for the overall manner in which it was conducted, including the use of questionable methodologies.² In the August 2006 issue of The Champion, Timothy P. O’Toole provided an exhaustive critique of the Illinois study: What’s the Matter With Illinois? How an Opportunity was Squandered to Conduct an Important Study on Eyewitness Identification Procedures.  

NACDL’s state legislative affairs director, Scott Ehlers, was not content to simply report the criticism of the conclusions in the Illinois Report. Scott felt that it was imperative to obtain the underlying data relating to the design and implementation of the study, including photographs and recordings of the arrays and lineups, training protocols, and the complete database of information used to support the report. 

Scott initially raised his ideas with members of the Eyewitness Identification Reform Litigation Network, a group formed in 2006 to promote reform of identification procedures. The Network was formed by NACDL, the Innocence Project, the D.C. Public Defender Service, and the National Legal Aid and Defender Association, and now includes trial attorneys in all 50 states. With the support of key Network members, Scott contacted Andrea Lyon, past president of the Illinois Association of Criminal Defense Lawyers and a professor at DePaul University College of Law. Professor Lyon recommended that NACDL consult Professor Locke E. Bowman, Legal Director of the MacArthur Justice Center (“MJC”), a program of the Bluhm Legal Clinic at Northwestern University School of Law. MJC is a nonprofit public interest law firm that litigates issues of significance for the criminal justice system, including prisoner rights, the death penalty, and gun control.  

Professor Bowman agreed to represent NACDL in its efforts to obtain the essential data underlying the dubious Illinois study, and supervised a team of clinical law students in an effort to obtain these materials pursuant to the Illinois Freedom of Information Act (“FOIA”) from the Illinois State Police and the other agencies that participated in the study (Chicago, Evanston and Joliet Police Departments). For several months, each agency refused to comply with these requests. Accordingly, on February 8, 2007, NACDL commenced a FOIA lawsuit in Cook County Circuit Court seeking a court order directing the release of the materials. As noted in the complaint, “Access to this data is essential to meaningful public dialogue concerning the validity and accuracy of the findings in the report.” 

The pleadings in the litigation are available online at www.nacdl.org/EyewitnessLitigation. 

Defense lawyers understand that the dimension of this problem is far greater than is recognized by the public. DNA exonerations confirm the scope of the problem but are only possible in cases in which genetic material is available. They represent but a tiny fraction of the thousands of individuals wrongly imprisoned because of an erroneous identification. NACDL will relentlessly seek to expose and ameliorate this pervasive flaw in our criminal justice system. 

The eventual release of the underlying data will either refute the widespread criticism of the Illinois Report, or it will confirm suspicions that the report is at best flawed and at worst a deliberate effort to sidetrack reform and preserve the discredited status quo. This initiative typifies NACDL’s capacity to work effectively in pursuit of its core mission to champion due process and confront injustice. By combining the talents of NACDL’s dedicated and creative staff with the resources of our affiliates and other entities committed to reform, we will continue the struggle to minimize the tragedy of misidentification.  

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