Dozens of people across California have been wrongly convicted of crimes, largely because of law enforcement’s mishandling of eyewitness testimony. Courts have found cases where eyewitnesses felt compelled to identify themselves during a lineup even when the real culprit was not present; making flimsy identifications that were ultimately presented at trial as compelling evidence; and choosing from sets of photos, some of which bore no resemblance to their description of the suspect, making the police’s preferred choice more obvious.
That’s why my colleagues at the Northern California Innocence Project and I rejoiced six years ago when the state legislature passed eyewitness identification reforms that we helped create. The law now requires police to use evidence-based practices in handling eyewitnesses. It draws on decades of scientific research into the causes of inaccurate and unreliable eyewitness testimony – the kind that put innocent people in prison for decades or even life.
Since 2020, the law requires California police departments to conduct “blind” lineups in which the officer does not know the identity of the suspect; warn eyewitnesses that the attacker may not be in the lineup, that they do not need to identify themselves, and that the investigation will continue even if they do not; verify and document an eyewitness’ confidence in any identification; use photos that generally match the eyewitness’ description; and record the entire identification procedure.
Unfortunately, our joy over these reforms has diminished considerably since their implementation. Although police departments across the state have generally acknowledged their obligations under the new law, many are not complying.
A new study conducted by the Northern California Innocence Project found that only 49 percent of agencies reviewed used reprimand forms that contained all legally required holding instructions. Most of the remaining agencies used the same forms they have used since at least 2010, with no changes to reflect the 2018 law.
The problem is made worse by Lexipol, a for-profit company that produces the policy manuals for most California police departments. The company created an eyewitness identification policy that wrongly minimizes or misrepresents the obligations of law enforcement.
For example, in Lexipol’s eyewitness identification policy, uses of the word “shall” in the law are replaced with “should,” suggesting that the required practices are discretionary rather than mandatory. Lexipol policy also incorrectly implies that witness identification does not always have to be recorded.
It is true that police departments have the ultimate responsibility for ensuring that their policies and practices comply with the law, and Lexipol notes that contracting agencies are free to review and modify their master manuals. But our research found that the overwhelming majority of law enforcement agencies using a Lexipol manual (90%) have largely adopted the company’s eyewitness identification policy as written.
Lexipol should amend its erroneous policy wording to clearly state that these practices are mandatory. Additionally, defense attorneys should challenge and courts should suppress identifying evidence from police departments that do not follow the law.
Preventing tragic eyewitness errors and wrongful convictions depends on police compliance with this law.
Consider Northern California Innocence Project clients such as Franky Carrillo Jr. Miguel Solorio And Joaquin Ciria, who were wrongly incarcerated for 20, 25 and 32 years respectively. All three are men of color who could not overcome false identifications obtained by eyewitnesses during the trial. In each case, juries viewed these tainted identifications as compelling evidence of guilt.
The days of such blind acceptance must end. Nothing less than full compliance with the law will keep the next innocent person from going to prison.
Todd Fries is an attorney and executive director of the Northern California Innocence Project at Santa Clara University School of Law.
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