In describing the necessity for the evidentiary standard of proof beyond a reasonable doubt, Justice Harlan proclaimed, “[I]t is far worse to convict an innocent man than to let a guilty man go free.” Yet, despite this assertion, the American justice system continues to incarcerate innocent citizens at alarming rates. As of December 18, 2022, 3,087 persons in the United States have been wrongfully convicted and later exonerated. Furthermore, since 1970, 190 wrongfully convicted persons have been exonerated while sitting on death row. At the forefront of these wrongful convictions is eyewitness misidentification.

In the 1990s, and following the boom in DNA exonerations, the Department of Justice began investigating factors contributing to wrongful convictions. The study looked at the first twenty-eight DNA exonerations and found eyewitness identification evidence was presented in the majority of the cases. In total, more than seventy percent of all DNA exonerees were convicted based on misidentifications made by eyewitnesses. As the exonerations continued to mount, the credibility of eyewitness identification came into question. Leading social science researchers such as Elizabeth Loftus, Gary Wells, John Wixted, and Margaret Bull Kovera have all provided extensive scholarship contesting the reliability of eyewitness identification.

Unfortunately, even with all the empirical data available, and the moral and professional obligation to seek justice on behalf of victims, many law enforcement agencies across the United States still employ old, unreliable identification procedures. In sharp contrast to the research, only twenty-five states have implemented the procedural safeguards recommended to aid in reducing witness misidentification offered by Wells, Loftus, and alike.

The lack of participation raises the question: why? Why are more states not implementing these procedural safeguards? If we know that innocent people are being wrongfully convicted based on eyewitness identification, and we have scientifically proven ways to reduce the misidentification, why isn’t every state implementing these procedures? Should it be left up to individual law enforcement agencies to implement these procedures, or should there be widespread policies throughout the county, state, or country?

In the following pages, I will attempt to shed light on the proposed questions while delving deep into the controversy that is eyewitness identification. I theorize implementing universal procedural safeguards during lineups is necessary to reduce misidentification and ultimately wrongful convictions. However, I believe that successful implementation will require overcoming at least some law enforcement resistance.

In the first section of this paper, I will give an overview of eyewitness identification. I will also discuss the factors that contribute to misidentification, including weapon focus, cross-racial identification, length of exposure, viewing conditions, how the identification procedure is conducted, and the time elapsed between the crime and the identification. The goal of this first section will be to recognize the variables negatively impacting the identification procedure so that they can be eliminated, or at least mitigated, through eyewitness identification reform.

The second section of this paper will identify nine procedural safeguards that researchers have found most effective at reducing eyewitness misidentification and, ultimately, wrongful convictions. These recommendations include conducting pre-lineup interviews, ensuring evidence-based suspicion, conducting lineups through a double-blind process, selecting appropriate fillers, administering a pre-admission instruction, recording the entire identification process, showing the witness photos sequentially, recording an immediate confidence statement, and limited showup identification procedures.

In the third section of this paper, I will discuss what I consider to be the most significant barriers to implementing the recommended procedural safeguards into police procedure.

In the final section of this paper, I will offer my recommendation for the effective implementation of procedural safeguards during the eyewitness identification process. I believe there are numerous ways to ensure law enforcement agencies take the necessary steps to avoid sending innocent people to jail because of eyewitness misidentification. I discuss administrative, legislative, and judicial remedies, and will also suggest some more creative and less hostile options that may potentially face less backlash from law enforcement.