Eyewitness Identification Reform in Minnesota

By Mariah Glinski^*

Psychological research dating back to the early twentieth century has questioned the reliability of eyewitness memory in the courtroom.^[1] Psychologists have long understood that memory is a dynamic and reconstructive process and does not function as if our memories are captured on video.^[2] This can lead to problems when law enforcement, and thus the legal system, rely on eyewitness identifications. Some estimates indicate that about 77,000 suspects are identified by eyewitnesses per year in the United States.^[3] Thus, it is vital that governments adopt policies that prevent mistaken eyewitness identifications and decrease wrongful convictions. 

The Minnesota state government intended to do exactly that when it adopted Minnesota Statute 626.8433 in 2020.^[4] This statute came shortly after a state survey revealed that, in Minnesota, “half of law enforcement agencies did not have written lineup policies.”^[5] This statute followed several recommendations endorsed by the Innocence Project, an organization dedicated to exonerating those who have been wrongfully convicted and educating the public about wrongful convictions.^[6] Minnesota’s statute required adoption of a statewide policy on eyewitness identification by November 1, 2022. The statute lays out four requirements for the policy. First, this policy must require double-blind lineup procedures.^[7] Double-blind means that both the officer conducting the lineup and the witness making the identification do not know which individual in the lineup is the suspect.^[8] This prevents the officer from consciously or unconsciously impacting the identification based on their expectations.^[9] Second, the statute requires that a witness be presented with pre-identification instructions, specifically, an instruction that the perpetrator may not be present in the lineup.^[10] Studies have shown that these instructions lead to fewer mistaken identifications in lineups.^[11] Third, fillers in the lineup should be selected based on the witness’s description of the perpetrator.^[12] A filler is someone who is included in a lineup, but is not the suspect.^[13] This method for choosing fillers is supported by psychological research.^[14] Fourth, officers or lineup administrators should collect a confidence statement from the witness immediately after the identification.^[15]Confidence can be an indicator of accuracy, however, “intervening postdecision [sic] events can dramatically shift witnesses’ reports of their confidence from low at the time of identification to high at the time of trial.”^[16] Thus, psychologists recommend collecting confidence statements immediately after the identification to prevent contamination of the witness’s memory.^[17]

Although this statute reflects the current understanding of eyewitness memory, it has one major flaw: there is no penalty for noncompliance. The current framework for admission of suggestive eyewitness identification evidence adopts a “totality of the circumstances” test.^[18] Because of this, even if law enforcement violated the statute, that would just be one factor to consider in determining whether the evidence should be admissible. Wisconsin has a similar eyewitness identification statute to Minnesota.^[19] In State v. Scott, the Wisconsin Supreme Court determined that a violation of the policy suggestions enumerated in its state statute did not reach the threshold to exclude the eyewitness identification evidence from trial.^[20] While statutes like these may encourage law enforcement to follow more sound procedures when conducting lineups, without consequences for violations, they do little to prevent suggestive eyewitness identifications from being presented as evidence at trial. 

While state statutes on eyewitness identification policies like the one adopted in Minnesota are a step in the right direction to prevent mistaken eyewitness identifications and wrongful convictions, they may not be enough to adequately safeguard citizens. Perhaps other methods such as federal intervention or a new, scientifically based framework from the United States Supreme Court would be more effective than state statutes. As these policies take effect, only time will tell if Minnesota’s new eyewitness identification statute will adequately protect its citizens from wrongful convictions. 

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^* Mariah Glinski, J.D. Candidate, University of St. Thomas School of Law Class of 2023 (Senior Editor).

^[1] See Hugo Munsterberg, On the Witness Stand: Essays on Psychology and Crime (1908).

^[2] Marla Paul, Your Memory Is No Video Camera: It Edits the Past with Present Experiences, Science Daily (Feb. 4, 2014), https://www.sciencedaily.com/releases/2014/02/140204185651.htm.

^[3] Alvin G. Goldstein, June E. Chance, & Gregory R. Schneller, Frequency of Eyewitness Identification in Criminal Cases: A Survey of Prosecutors, 27 Bull. Psychonomic Soc’y 71, 73 (1989).

^[4] Minn. Stat. § 626.8433 (2022).

^[5] Linh Nguyen, Minnesota Adopts Eyewitness ID Law to Prevent Wrongful Convictions, Davis Vanguard (May 26, 2020), https://www.davisvanguard.org/2020/05/minnesota-adopts-eyewitness-id-law-to-prevent-wrongful-convictions.

^[6] Innocence Staff, Minnesota Adopts Landmark Eyewitness ID Law, Innocence Project (May 19, 2020), https://innocenceproject.org/minnesota-adopts-landmark-eyewitness-id-law; About, Innocence Project, https://innocenceproject.org/about/#our-work (last visited Jan. 16, 2023).

^[7] Minn. Stat. § 626.8433, subd. 1(1) (2022). 

^[8] Third Circuit Task Force on Eyewitness Identifications, 2019 Report of the United States Court of Appeals for the Third Circuit Task Force on Eyewitness Identifications, 92 Temp. L. Rev. 1, 13 (2019).

^[9] Id.

^[10] Minn. Stat. § 626.8433, subd. 1(2) (2022).

^[11] Steve D. Charman, Rolando N. Carol, & Shari L. Schwartz, The Effect of Biased Lineup Instructions on Eyewitness Identification Confidence, 32 Applied Cognitive Psych. 287, 289 (2018); Roy S. Malpass & Patricia G. Devine, Eyewitness Identification: Lineup Instructions and the Absence of the Offender, 66 J. Applied Psych. 482, 485 (1981).

^[12] Minn. Stat. § 626.8433, subd. 1(3) (2022).

^[13] Third Circuit Task Force on Eyewitness Identifications, supra note 8, at 13.

^[14] Gary L. Wells et. al., Policy and Procedure Recommendations for the Collection and Preservation of Eyewitness Identification Evidence, 44 L. & Hum. Behav. 3, 18 (2020).

^[15] Minn. Stat. § 626.8433, subd. 1(4) (2022).

^[16] Wells et. al., supra note 14, at 22.  

^[17] Wells et. al., supra note 14, at 22.

^[18] Manson v. Brathwaite, 432 U.S. 98, 113 (1977).

^[19] Wis. Stat. § 175.50 (2022).

^[20] State v. Scott, 2013 WI App 13, ¶¶ 10–13, 345 Wis. 2d 846, 826 N.W.2d 122 (Wis. Ct. App. Dec. 27, 2012).