On March 1 Texas Governor Rick Perry officially pardoned Timothy Cole, who was wrongfully convicted over two decades ago. Tragically, the DNA tests that proved Cole's innocence came too late: he died in prison in 1999 while serving time for a rape he did not commit. A faulty lineup led to inaccurate eyewitness evidence in Cole's case, which serves as a reminder of the urgent need for eyewitness identification reforms that increase reliability and reduce the risk of mistakes. Cole's case was one of the thirty-nine Texas wrongful convictions exposed by DNA profiled in The Justice Project's report Convicting the Innocent: Texas Justice Derailed.
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Eyewitness identification reform is one of the issues being addressed by the Timothy Cole Advisory Panel on Wrongful Convictions, created by the Texas Legislature in 2009 to make recommendations on the prevention of wrongful convictions. One reality the Cole Advisory Panel is confronting is the complete lack of statewide standards for the conduct of identification procedures in the vast majority of jurisdictions in Texas. The numerous eyewitness mistakes that have been identified so far have led to a great deal of scientific research on eyewitness memory and how it can go wrong. The upshot of this research is that we must collect eyewitness evidence with the same care that we collect trace physical evidence, according to carefully designed protocols, in order to prevent the evidence from becoming tainted or ruined. Researchers have identified a number of changes to lineup procedures that can substantially cut the risk of misidentification and produce more reliable evidence. Unfortunately, most police departments and sheriff's offices have no written policies for conducting lineups at all, and of those that do, only a small fraction include best practices that increase accuracy.
As the Cole Advisory Panel and our legislators once again grapple with this issue, there are two key benchmarks for a successful solution they should keep in mind. First, the state must require that scientifically sound best practices are followed in the conduct of lineups. To merely suggest, educate or recommend changes has proven inadequate and the accuracy of eyewitness evidence is too important to be optional. Second, the solution must address all known sources of inaccuracy in existing procedures, including: suggestive lineup composition, inadvertent cueing of witnesses, and the natural tendency on the part of some witnesses to identify someone in the lineup based on the assumption that the perpetrator must be present. In short, we need to be sure that the solution is comprehensive and is strong enough to ensure that good procedures are enacted and followed.
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