Police officers often rely on facial recognition searches as the primary piece of evidence tying a defendant to a crime, and thus defendants should be permitted to challenge the facial recognition search process. The limited case law on the discoverability, reliability, or admissibility of facial recognition is inconsistent at best. Based on the risk of misidentification, Clare Garvie suggests several steps defense counsel should consider pursuing in facial recognition cases.

Scientifically Sound Approaches to Suppression in Eyewitness Identification Cases

The Manson v. Brathwaite test for the admissibility of challenged eyewitness identification evidence is flawed. As a result, courts routinely allow the admission of tainted identification evidence. Decided in 1977, Manson is not in accord with subsequent scientific research into eyewitness fallibility. Defense attorneys must adopt creative strategies to seek suppression and force courts to consider both the science and Manson’s flaws.

With increasing frequency since the 1970s, psychologists have been admitted as expert witnesses to educate factfinders about the many facets of eyewitness memory. The authors provide an overview of three distinct topics about which eyewitness experts typically testify: eyewitness identification, repressed memory, and child witnesses.

Because social media has reached a point of near saturation, people now have access to what seems like endless photographs of people in their community, and many witnesses have begun to use this as a resource to conduct their own criminal investigations. Jurors should be educated about how exposure to social media images may have affected the eyewitness evidence being brought before them.

The authors surveyed law enforcement officers(1) to test their knowledge about memory, (2) to test their knowledge of how factors present during crimes (weapons, disguises) can affect eyewitness accuracy, and (3) to determine how they conduct eyewitness interviews and identification procedures. According to the survey results, most officers do not conduct proper eyewitness interviews and identification procedures, and have limited knowledge of eyewitness factors. These deficits suggest a framework for a defense attorney’s cross-examination of officers and eyewitnesses at hearings and trials.

It is now conventional wisdom that eyewitness identifications can be notoriously unreliable. But what about identifications by witnesses who believe the perpetrator is someone familiar? Are their identifications reliable? Empirical evidence and an array of DNA exonerations have confirmed that familiarity does not eliminate misidentification problems. Consequently, courts should permit expert testimony to assist the jury in properly assessing the reliability of all eyewitness evidence, regardless of whether the witness claimed the suspect was familiar.

Illinois Gov. Pat Quinn signed a law in August 2014 that sets forth procedures to be followed when an eyewitness to a crime is called upon to attempt to identify the perpetrator, whether through an in-person or photographic identification procedure. The statute does not apply to a “showup,” in which a suspected perpetrator is presented to the eyewitness at or near a crime scene. Effective January 2015, the statute represents a major step forward in the effort to avoid mistaken eyewitness identifications, which causes many wrongful convictions in Illinois and elsewhere.

Eyewitness identification is not infallible. Indeed, in about half of known cases of wrongful conviction, at least one eyewitness mistakenly identified the innocent suspect as the perpetrator. Professor Brian Cutler focuses on events that can contaminate lineup identifications. He discusses two general situations in which the lineup identification might not be compelling inculpatory evidence: (1) when the lineup is not the first time the eyewitness identified the suspect and (2) when the eyewitness is able to guess the suspect’s identity.

If an image of a perpetrator exists on a cellphone camera, video surveillance, body camera footage or social media, law enforcement can use facial recognition software to attempt to identify the person in the photo. Defense attorney Kaitlin Jackson discusses the limitations of facial recognition, and she explains how to determine if police used facial recognition in a defendant’s case. Facial recognition software is difficult to challenge, but ways exist to attack its reliability.

Defense attorneys engage in some tasks that are repetitive, but most require a unique blend of research, investigation, and know-how. Jeff Adachi is an advocate of using checklists because they maintain consistency and provide the essential steps needed to accomplish a task. While a defense lawyer should not use a checklist without independent thought or connecting to the client as an individual, checklists can be beneficial to new attorneys and can help more experienced attorneys make sure they have not overlooked anything.

The Reid Technique of interrogation has been shown to lead innocent citizens to falsely confess to crimes. Little is known, however, about its use with nonsuspect witnesses, such as eyewitnesses and alibi witnesses. The Reid Manual includes a section that basically says it is appropriate to use the same interrogation methods for suspects on nonsuspect eyewitnesses if the investigator determines that the eyewitnesses are unwilling to disclose key information or are being deceptive. The authors — a defense attorney and two psychologists — discuss a case in which the police used Reid-style interrogation tactics on witnesses, as opposed to the suspect. The results were nearly catastrophic. They use the disclosures from this case to illustrate the dangers of this tactic.