Is Memory Hijacking Texas' Justice System?

Edwin Colfax, the director of state reform campaigns for nonprofit the Justice Project, broke some bad news to the Criminal Jus­tice Integrity Unit last week. A new survey completed by Colfax's organization shows that 88% of Texas law enforcement agencies have no written policies governing police lineup procedures. That's a serious problem, says Iowa State University psychology professor Gary Wells, who addressed the CJIU during the morning session. Mistaken identification is the biggest culprit in wrongful conviction, he says. Nationwide, incorrect ID has been implicated in 75% of exonerations.

The perils of eyewitness identification – and practical strategies for reducing the number of mistaken IDs in criminal cases – were the focus of the CJIU meeting. Created earlier this year by Court of Criminal Appeals Judge Barbara Hervey, the CJIU is a means of bringing stakeholders together to find ways to fix Texas' much maligned criminal justice system. Wells was included last week because he has been researching the vagaries of memory and the mechanics of eyewitness identification for three decades.

In part, mistaken ID has become a problem because the criminal justice system doesn't have the best grasp on the way memory actually works, says Wells. The common assumption that human memory functions like a camera – recording scenes and filing them away intact into a mental library – is incorrect. "In fact, that is a dangerous analogy," Wells told CJIU. "What we perceive is not a direct representation of what's out there in the world. And what we expect [to see] affects what we think we see." In reality, memory is a "constructive" process, but in the context of criminal justice, the memory-as-recording concept still dominates – and has long informed the most basic of police procedures: the suspect lineup.

Fortunately, there are basic reforms and best practices that police can use to reduce the likelihood of mistaken identification – changes in the way photos or people are chosen, for example, or the manner in which the lineup is executed (a "blind" administration is best, eliminating the possibility of outside influences that can prompt a witness to pick out a particular suspect). While there are plenty of jurisdictions nationwide that have adopted the model procedures, apparently these best practices (which have been around for at least a decade) haven't infiltrated Texas, judging from the preliminary results of the Justice Project survey of more than 1,000 police agencies. The full report will be released later this month.

Adopting best practices for eyewitness identification can have a meaningful impact on the criminal justice system, argues Wells, instilling "confidence back into the justice system because it removes [the criminal justice system] as a contributor to mistaken identification," he said. "And it is now a contributor." The group is scheduled to meet again on Dec. 11.