Police must use new eyewitness ID rules to reduce wrongful identifications

Starting next February, Minnesota law enforcement must begin using science-based practices for photo lineups designed to safeguard against the fallibility of human memory.

Gov. Tim Walz signed a bipartisan measure this weekend mandating the new statewide eyewitness identification model, which lawmakers and criminal-justice-reform advocates say will reduce the chances of a wrongful conviction.

"At no time should an innocent person go to prison," said co-author Sen. Bill Ingebrigtsen, R-Alexandria, in a statement. "This is just another tool that will help keep that from ever happening. As a former sheriff, I am proud to be part of this initiative."

Across the country, mistaken eyewitness identifications account for 71% of wrongful convictions later overturned by DNA, according to nonprofit law firm the Innocence Project, which helped write the proposal.

The new mandatory practices include using a "double-blind" method, meaning the investigator conducting the procedure does not know which photo depicts the suspect, and therefore can't unintentionally signal toward one image. For smaller agencies when this isn't possible, the officers can administer the lineup in a way that prevents them from seeing the photos.

Police must also instruct the witnesses that the suspect may or may not be present in the lineup, a measure to avoid a witness choosing the wrong but closest resemblance.

The officers needs to use nonsuspect fillers who match the general description of the suspect.

And investigators are required to record a witness' confidence level promptly after the identification is made.

Testifying at the Senate Judiciary Committee earlier this year, Innocence Project of Minnesota legal director Julie Jonas said bad ID practices can influence a witness to subconsciously create a false memory. Jonas cited two Minnesota cases in which DNA exonerated innocent people convicted on misidentification.

The witness and suspect being of a different race is frequently a factor in wrongful IDs, according to the Innocence Project. In 1985, a St. Paul jury convicted David Sutherlin, a black man, of raping a white woman who identified him in a lineup. In 2002, Sutherlin was exonerated through DNA. The real assailant was also identified, but he couldn't be charged because the statute of limitations had expired.

Nancy Steblay, a professor of psychology at Augsburg University and a leader in the research of eyewitness identification in the United States, testified earlier this year that the measure represents a consensus of what makes sound science among experts in the field.

Minnesota has previously been inconsistent — more than half of agencies say they have no written policies at all, according to a 2016 survey conducted by the Minnesota Chiefs of Police Association.

"I am very pleased to see the eyewitness identification reforms enacted by the Minnesota Legislature," Steblay said this week. "In over four decades of research, eyewitness scientists have come to better understand the fragile nature of memory and the ways in which eyewitness memory can be vulnerable to error. The enacted reforms specify science-based best practices for the collection of eyewitness memory evidence."

Minnesota follows at least 19 states in implementing similar statewide practices.

A 2017 Star Tribune analysis found some major law enforcement agencies in Minnesota were already trained on similar best practices, though officers didn't always follow those rules.

In one case, a Minneapolis police officer sent six photos to a witness via e-mail, making it impossible to gauge confidence. The lineup featured an array of suspects of different ages, races, hair colors and distinguishing features, such as facial hair and tattoos.

In another case, a questionable lineup led to a wrongful arrest on a rape. The innocent man sat in jail for months before being cleared by DNA.

"We must ensure law enforcement agencies use sound, science-based practices to identify perpetrators," said Rep. Dave Pinto, DFL-St. Paul, who carried the bill in the House. "Establishing guidelines for eyewitness identification will maximize the reliability of these procedures and better protect the innocent."