The Problem of Mistaken Identification: Some Observations on Process
| Author | Andrew Roberts |
| DOI | 10.1350/ijep.8.2.100.36515 |
| Published date | 01 March 2004 |
| Date | 01 March 2004 |
| Subject Matter | Article |
100 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
THE PROBLEM OF MISTAKEN IDENTIFICATION
I
The problem of mistaken
identification: Some
observations on process
By Andrew Roberts
Lecturer in Law, University of Leeds
*
Abstract. This article examines the importance of establishing a coherent system
of safeguards against the risks of mistaken eyewitness identification. Memories
of previously observed events are susceptible to distortion during encounters
between a witness and other persons. It is argued that pre-trial procedures
conducted under controlled conditions provide the most effective means of
averting the risk of error and subsequent miscarriage of justice. However, these
are of little value without a system of safeguards that (1) ensures that the
procedures are conducted whenever the risk of error arises, (2) provides
adequate regulation of what might occur before such procedures are conducted,
and (3) ensures adherence to its prescriptions. These considerations provide
the basis for a critical evaluation of some aspects of relevant procedure in
England and Wales.
n a thought-provoking essay, ‘Identification and Misidentification in Legal
Processes: Redefining the Problem’,1 William Twining challenged the
orthodox view, that the problem of misidentification is something to do
with the unreliability of eyewitness testimony in jury trials, as presenting an
artificially narrow definition of the problem. Future research and public debate
about the problem of identification in legal processes, he claimed ‘would benefit
from being set in the context of a comprehensive model of legal processes, and of
a clearly articulated, integrated theoretical framework’.2 This would entail
divergence from the expository tradition of legal scholarship, the primary concern
of which are the rules of evidence,3 and would transcend disciplinary boundaries.
The expository approach is introspective, characterised in its most polarised form,
by an analysis of problems of evidence that takes the evidential rules as the source
* I am indebted to David Ormerod and Diane Birch for their insightful comments on earlier drafts
of this work. I remain solely responsible for errors and deficiencies.
1 W. Twining, Rethinking Evidence: Exploratory Essays (Northwestern University Press: Evanston, IL,
1994) (first published in 1990 by Basil Blackwell Ltd).
2 Ibid. at 153.
3 Ibid. at 156.
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2004) 8 E&P 100–119
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 101
THE PROBLEM OF MISTAKEN IDENTIFICATION
of both the problem and the solution with scant regard to the body of empirical
facts lying beyond the corpus of those rules. Twining suggested that an analysis
of identification ought to be carried out at a level of abstraction that ‘combines
elements of contextual perspectives on legal process and some notions about
information processing borrowed from cognitive psychology’. The criminal
procedure relating to identification evidence still awaits this kind of attention
and analysis. Twining observed that many of those who endeavour to resolve the
problem of mistaken identification appear to adopt the view that the solution
lies in effecting improvements in the rules concerning the manner in which
identification parades are conducted.
Carson and Bull4 have suggested that the potential contribution of psychology to
the discipline of law lies in encouraging the lawyers to rethink issues and
challenge prevailing rules and practice. The relevant processes, both legal and
cognitive, are complex and warrant greater attention than can be devoted to them
here. This article is a rather ambitious attempt to demonstrate that psychologists’
discoveries concerning the functioning of memory suggest the need for a cohesive
system of legal safeguards. The principal objective is to demonstrate that a broad
contextual evaluation of English procedure dispels any notion that the safeguards
it currently affords offer robust protection against the risk of miscarriage of
justice. The premise of the arguments developed below lies in the extent to which
a witness’s memory is susceptible to distortion as a result of encounters with
other persons following the witness’s observation of events giving rise to criminal
proceedings.
Memory processes
The range of factors that might affect the accuracy of any identification attempted
by an eyewitness is substantial. Numerous commentators have formulated
taxonomies5 which include characteristics inherent in the witness, such as age,6
respective ethnicity of witness and suspect,7 and degree of physiological arousal
4 D. Carson and R. Bull, ‘Psychology and Law: Future Directions’ in R. Bull and D. Carson (eds),
Handbook of Psychology in Legal Contexts, 1st edn (Wiley: Chichester, 1995) 646.
5 See generally, P. Ainsworth, Psychology, Law and Eyewitness Testimony (Wiley: Chichester, 1998) 35–
48; A. Kapardis, Psychology and Law, 2nd edn (Cambridge University Press: Cambridge, 2003) 36–
47; B. Cutler and S. Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law (Cambridge
University Press: Cambridge, 1995) 79–136.
6 It appears that identification accuracy is poorest among the relatively young and older witnesses.
The findings of a number of studies indicate a significant decline in the performance of those
aged 60+, see e.g. T. O’ Rourke, S. Penrod, B. Cutler and T. Stuve, ‘The External Validity of Eyewitness
Identification Research: Generalising Across Subject Populations’ (1989) 13 Law and Human Behavior
385.
7 Studies indicate greater accuracy where witness and subject are of the same ethnic appearance;
see R. Bothwell, J. Brigham and R. Malpass, ‘Cross-Racial Identification’ (1989) 15 Personality and
Social Psychology Bulletin 19; G. Wells and E. Olsen, ‘The Other-Race Effect in Eyewitness
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