comment sketchy eyewitness-identification ... - UW Law School

MCNAMARA - FINAL 5/20/2009 5:17 PM 

COMMENT 

SKETCHY EYEWITNESS-IDENTIFICATION PROCEDURES: 

A PROPOSAL TO DRAW UP LEGAL GUIDELINES FOR 

THE USE OF FACIAL COMPOSITES IN CRIMINAL 

INVESTIGATIONS 

JESSICA M. MCNAMARA∗ 

The rising number of exonerations over the last two decades has 

raised awareness about the fallibility of eyewitness evidence and the flaws 

within the criminal justice system. Yet, while there has been significant 

attention paid to improving the reliability of eyewitness-identification 

procedures such as lineups, there has been little focus on the use of facial 

composites, or sketches, in criminal investigations. Recent social-science 

research raises serious questions about the reliability of composites and 

their ability to taint an eyewitness’s memory. This Comment suggests 

several guidelines for the use of facial composites to reduce the risk of 

misidentifications, thus protecting both individual defendants and the 

integrity of the criminal justice system as a whole. 

Introduction ................................................................... 764 

I. Due Process and Eyewitness Identifications ..................... 769 

A. Due-Process Concerns with Eyewitness-Identification 

Evidence ......................................................... 770 

B. Due Process Applied: The Manson v. Brathwaite 

Standard ......................................................... 773 

II. Facial Composites ................................................... 776 

A. The Use of Facial Composites in Criminal 

Investigations ................................................... 776 

B. Social-Science Research on Facial Composites ............ 780 

1. Reliability of Facial Composites ......................... 781 

2. Effect of Facial Composites on Subsequent 

Identifications ............................................... 788 

C. Increased Risk of Misidentification .......................... 791 

III. Guidelines for the Use of Facial Composites to Minimize 

Suggestiveness in Subsequent Identifications ................... 792 

∗ JD expected, University of Wisconsin Law School, 2009; BS New York 

University, 2003. I would like to thank my professors at the Wisconsin Innocence 

Project, John Pray, Keith Findley, and Byron Lichstein, for providing me with the 

initial idea for this Comment and for their valuable insights. I would also like to thank 

my editors, Kate Sorensen Razavi and Wendy Richards, for their thoughtful suggestions 

and patience. Lastly, I would like to thank Anwar E. Ragep for his clever drafting of 

this Comment’s title.


764 WISCONSIN LAW REVIEW 

A. Tool of Last Resort ............................................ 793 

B. Separating Identification Procedures Among Witnesses .. 795 

C. Reasonable-Suspicion Requirement.......................... 795 

D. Implementation of the Guidelines ............................ 797 

Conclusion .................................................................... 798 

INTRODUCTION 

In March of 1985, Kirk Bloodsworth, a former U.S. Marine with 

no prior criminal record, was convicted of first-degree intentional 

homicide, sexual assault, and rape. 1 The victim, a nine-year-old girl, 

had been raped, strangled, and beaten with a rock. 2 The evidence 

consisted of a shoe print from the crime scene 3 and five separate 

eyewitness identifications. 4 Bloodsworth also had a weak alibi and made 

several incriminating statements. 5 Despite his insistence that he was 

innocent, the jury found him guilty after a short deliberation, and 

Bloodsworth was sentenced to death. 6 

Almost nine years later, in 1993, Bloodsworth became the first 

person exonerated from death row by DNA evidence. 7 He was released 

from prison after DNA testing on a small amount of semen left on the 

victim’s underpants excluded him as a source. 8 Ten years later, in 

2003, the DNA profile of the real culprit was entered into a national 

DNA database and matched to a man named Kimberly Shay Ruffner, 

who was already incarcerated for an unrelated attempted rape and 

1. Bloodsworth v. State, 543 A.2d 382, 384 n.1, 389 (Md. Ct. Spec. App. 

1988); TIM JUNKIN, BLOODSWORTH: THE TRUE STORY OF THE FIRST DEATH ROW 

INMATE EXONERATED BY DNA 62, 76 (2004). 

2. JUNKIN, supra note 1, at 31, 38. 

3. Although the shoe print had “limited design similarities” with a purported 

pair of Bloodsworth’s shoes seized from Bloodsworth’s cousin’s house, it was later 

discovered that the shoes were two-and-a-half sizes smaller than Bloodsworth’s shoe 

size. Id. at 120–21. 

4. Id. at 136–38. 

5. Id. at 70, 78–88. For example, Bloodsworth had told several people only 

days after the murder that he had done a “bad thing.” Id. at 70, 79. At trial, he testified 

he was referring to his broken promise to buy his wife a taco salad. Id. at 145. 

6. Id. at 156, 166. 

7. Id. at 258, 269–70. DNA typing compares patterns in genetic profiles 

from biological materials such as semen and blood. See JOHN M. BUTLER, FORENSIC 

DNA TYPING 2–8, 33 (2d ed. 2005). Generally, if a known sample (such as DNA of a 

suspect) does not match a questioned sample (such as DNA found at a crime scene), the 

samples originated from different sources. See id. at 7. 

8. JUNKIN, supra note 1, at 22.


2009:763 Eyewitness-Identification Procedures 765 

murder. 9 Bloodsworth was fortunate to have had his death sentence 

reduced to two consecutive life sentences, but if DNA testing had not 

been available, Bloodsworth would likely still be in prison today for a 

crime he did not commit. 10 

Bloodsworth became a suspect only after an anonymous caller 

informed police that Bloodsworth looked very similar to a sketch of the 

culprit that had been distributed to the public. 11 The culprit was 

described as 6’5,’’ skinny, with curly blonde hair and a bushy 

mustache. 12 Bloodsworth resembled the sketch, and despite the fact that 

he was 6’0’’ tall with red hair and a bulky build, police placed him in a 

lineup where he was identified by five eyewitnesses. 13 Ruffner, the real 

culprit, did not resemble the sketch. 14 

Bloodsworth’s story is not unique. Many other people who have 

been wrongfully convicted initially became suspects solely because of 

their resemblance to a facial composite. 15 This resemblance led law 

9. James Dao, In Same Case, DNA Clears Convict and Finds Suspect, N.Y. 

TIMES, Sept. 5, 2003, at A7. Bloodsworth and Ruffner had actually been acquaintances 

in prison; as the prison librarian, Bloodsworth often delivered books to Ruffner’s cell. 

Id. A DNA match is not absolute proof of guilt, due to human error in the testing 

process, the probability of a “match,” and the relationship of the biological material to 

the commission of the crime. See generally MAX M. HOUCK & JAY A. SIEGEL, 

FUNDAMENTALS OF FORENSIC SCIENCE 284–87 (2006) (describing the interpretation of 

DNA-typing results and comparison of DNA samples). For example, a match to DNA 

from saliva on a cigarette butt discarded next to a homicide victim may provide 

suspicion that the person was involved in the crime, but does not, in itself, prove guilt. 

In child-sexual-assault cases, however, a match to DNA from semen taken from inside 

the child is generally regarded as the most conclusive evidence available. There are 

few, if any, plausible explanations for why the semen would be in the child unless an 

assault had occurred. Therefore, the DNA match between Ruffner and the semen on the 

victim’s underpants is the most realistically conclusive proof possible of his guilt and 

Bloodsworth’s innocence. 

10. In 1986, a year after his original conviction, an appellate court granted 

Bloodsworth a new trial. JUNKIN, supra note 1, at 193–94. He was convicted again, but 

this time sentenced to two consecutive life sentences instead of death. Id. at 220, 227. 

At that time, absent other compelling new evidence of his innocence, he had exhausted 

all of his appeals. Id. at 4, 8–11. DNA testing only later provided the compelling 

evidence necessary for his exoneration. 

11. Id. at 49, 75. 

12. Id. at 44–46. 

13. Id. at 66, 91, 98–101. See infra Part I.A for a discussion of possible 

reasons why the eyewitnesses made erroneous identifications. 

14. See JUNKIN, supra note 1, at 46, 102; Gary L. Wells & Lisa E. Hasel, 

Facial Composite Production by Eyewitnesses, 16 CURRENT DIRECTIONS IN PSYCHOL. 

SCI. 6, 6 (2007). 

15. Facial composite is a general term that refers to an image of a culprit 

produced by law enforcement with the help of eyewitnesses. There are several methods 

of producing the images, leading to a variety of terms to describe them, including 

sketch, composite sketch, police composite, forensic sketch, etc.



enforcement to place them in a lineup 16 where they were misidentified 

by eyewitnesses, and ultimately convicted of crimes they did not 

commit. 17 

Because of the potential for mistaken identifications based on 

unreliable eyewitness evidence, and the considerable weight usually 

given by juries to eyewitness identifications when identity is at issue, 

courts have realized the need to lend protection to defendants 

confronted with eyewitness evidence. In United States v. Wade, 18 the 

Supreme Court of the United States first expressed concern about 

16. The term lineup can refer to a live lineup or a photographic lineup, also 

known as a photo array or photo spread. 

17. The only data on exonerees who initially became suspects because of a 

resemblance to a facial composite exists anecdotally, although there are at least twentythree. 

See, e.g., TARYN SIMON, INNOCENCE PROJECT, THE INNOCENTS 24, 42, 56, 80 

(2003) (detailing the story of Ronald Cotton, Edward Honaker, Neil Miller, James 

O’Donnell); SURVIVING JUSTICE: AMERICA’S WRONGFULLY CONVICTED AND 

EXONERATED 115–46, 365–93 (Lola Vollen & Dave Eggers eds., 2005) (detailing the 

story of James Newsome, Peter Rose); Keith A. Findley & Michael S. Scott, The 

Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 WIS. L. REV. 291, 299– 

304 (detailing the story of Steven Avery); Tammy Fonce-Olivas, Juror Says Scientist 

Influenced Moon Case Rape Verdict, EL PASO TIMES (Tex.), Dec. 23, 2004, at 1A 

(detailing the story of Brandon Moon); Innocenceproject.org, Know the Cases: Browse 

the Profiles, http://www.innocenceproject.org/know/Browse-Profiles.php (last visited 

Mar. 16, 2009) (detailing the story of Antonio Beaver, Jimmy Ray Bromgard, Ronnie 

Bullock, Dean Cage, Bruce Godschalk, Donald Wayne Good, Anthony Hicks, Marcus 

Lyons, Jerry Miller, Marlon Pendleton, Lafonso Rollins, John Jerome White, Willie 

Williams, and Kenneth Wyniemko); Law.northwestern.edu, Meet the Exonerated: 

Michael Evans, http://www.law.northwestern.edu/wrongfulconvictions/exonerations/ 

ilEvansTerrySummary.html (last visited Mar. 16, 2009) (Paul Terry). At least eleven 

others may have initially become suspects for independent reasons, but facial 

composites played a significant role in their wrongful convictions. See, e.g., Brief of 

Petitioner at 12–13, Arizona v. Youngblood, No. 86-1904 (U.S. Oct., 1986) (detailing 

the story of Larry Youngblood); STANLEY COHEN, THE WRONG MEN: AMERICA’S 

EPIDEMIC OF WRONGFUL DEATH ROW CONVICTIONS 3–11, 20–23 (2003) (detailing the 

story of Gary Dotson, Frank Lee Smith); KAREN T. TAYLOR, FORENSIC ART AND 

ILLUSTRATION 31 (2001) (detailing the story of Neil Ferber); Michael Hall, Why Can’t 

Steven Phillips Get a DNA Test?, TEX. MONTHLY, Jan. 2006, at 128 (detailing the 

story of Steven Phillips); William C. Lhotka, Wrongly Convicted Man Is Set Free, ST. 

LOUIS POST-DISPATCH, July 20, 2006, at A1 (detailing the story of Johnny Briscoe); 

Shelley Smithson, The Price of Innocence: Larry Johnson Wants Big Bucks for a Crime 

He Never Committed, RIVERFRONT TIMES (St. Louis), Aug. 18, 2004 (detailing the 

story of Larry Johnson); Innocenceproject.org, supra (detailing the story of Leonard 

Callace, Carlos Lavernia); Ip-no.org, Innocence Project New Orleans, Cases: Allen 

Coco, http://www.ip-no.org/AllenCoco.htm (last visited Mar. 16, 2009) (detailing the 

story of Allen Coco); AFTER INNOCENCE (Showtime Independent Films 2005) (detailing 

the story of Wilton Dedge). All of the above were exonerated with DNA evidence (with 

the exceptions of James Newsome who was exonerated by fingerprint evidence, and 

Neil Ferber who was exonerated after a jailhouse snitch recanted), and in several cases 

the real culprits were identified. 

18. 388 U.S. 218 (1967).



suggestive identification procedures. 19 A decade later, constitutional 

protections based on fairness as required by the Due Process Clause 

were established in Manson v. Brathwaite, 20 providing for the exclusion 

of eyewitness evidence that is so suggestive as to “g[i]ve rise to a very 

substantial likelihood of irreparable misidentification.” 21 Recognizing 

the danger of keeping reliable evidence from the jury, and thereby 

allowing a guilty person to go free, the Court limited the holding by 

concluding that, despite the suggestiveness of any procedure, 

“reliability is the linchpin in determining the admissibility of 

identification testimony.” 22 

The Brathwaite protections are not only limited by the reliability 

determination, but also by the narrow focus on the procedures used 

once a suspect has been identified, such as lineups. 23 The procedures 

19. Id. at 228–29. 

20. 432 U.S. 98 (1977). 

21. Id. at 107, 113. It is unclear whether the proper standard in Brathwaite is 

unnecessarily suggestive, impermissibly suggestive, or whether there is a distinction 

between the two. See id. at 99, 104, 107, 110, 112–13. Throughout the opinion, the 

Court uses both terms when referring to the suggestiveness of eyewitness-identification 

procedures. Id. Lower courts have largely either failed to distinguish the two terms or 

have treated them interchangeably. See, e.g., United States v. Bautista, 23 F.3d 726, 

729–30 (2d Cir. 1994) (stating that the terms unnecessary and impermissibly are 

synonymous in the context of suggestive eyewitness-identification procedures); United 

States v. Stevens, 935 F.2d 1380, 1389 (3d Cir. 1991) (stating that the standard is 

either unnecessarily or impermissibly suggestive, yet expressing preference for 

unnecessarily); Green v. Loggins, 614 F.2d 219, 223 (9th Cir. 1980) (stating that the 

standard in Brathwaite is either unnecessarily or impermissibly suggestive); United 

States v. Patterson, No. 00-10226-GAO, 2001 U.S. Dist. LEXIS 18232, *6–7 (D. 

Mass. Sept. 10, 2001) (reasoning that if a procedure is unnecessarily suggestive, it is 

impermissible); Hanks v. Jackson, 123 F. Supp. 2d 1061, 1071 (E.D. Mich. 2000) 

(treating unnecessarily and impermissibly suggestive as equally unconstitutional). The 

Supreme Court has used both unnecessarily, Moore v. Illinois, 434 U.S. 220, 227 n.3 

(1977), and impermissibly, Watkins v. Sowders, 449 U.S. 341, 344 (1981), when 

discussing admissibility of eyewitness identifications. The Wisconsin Supreme Court, 

relying largely on a law-review article, posited that following Brathwaite, the test for 

eyewitness identifications “evolved from an inquiry into unnecessary suggestiveness to 

an inquiry of impermissible suggestiveness,” and that “[s]ubstitution of the word 

‘permissible’ for ‘unnecessarily’ creates the impression that what may be ‘unnecessary’ 

could still be ‘permissible.’” State v. Dubose, 2000 WI 126, 22, 31, 285 Wis. 2d 

143, 699 N.W.2d 582 (quoting in part David E. Paseltiner, Twenty-Years of 

Diminishing Protection: A Proposal to Return to the Wade Trilogy’s Standards, 15 

HOFSTRA L. REV. 583, 589 (1987)). Regardless of any potential distinction, this 

Comment concludes that the Brathwaite standard should apply to the use of facial 

composites in criminal investigations because of the likelihood of misidentification 

stemming from their use. 

22. Brathwaite, 432 U.S. at 114. The Court went on to list several factors to 

determine the reliability of identifications to be weighed against the suggestiveness of 

the identification. See infra note 69. 

23. See supra Part II.C.



that lead to choosing suspects, such as the production of a facial 

composite, have been given less attention. 24 This is partly a result of 

focus on lineups as the main event of an identification, and partly 

because protections for suspects before an identification are minimal. 25 

Facial composites have been a long-time tool of law enforcement 

to create a likeness of an unknown culprit. 26 Eyewitnesses choose from 

hundreds and sometimes thousands of different facial features (eyes, 

noses, lips, etc.) which are copied or assembled by a forensic artist or 

computer to create a composite image that is distributed to the public. 27 

Law enforcement rely on tips based on composites to generate leads for 

suspects, such as the anonymous tip that led to the arrest of 

Bloodsworth. 28 Once law enforcement has identified a suspect who 

resembles a composite, there is risk that a process described as “tunnel 

vision” will begin, in which police tend to focus on inculpatory 

evidence and ignore exculpatory evidence in a quest to successfully 

solve a case. 29 

A growing body of social-science research now shows numerous 

problems with the effectiveness and reliability of facial composites. 

Questions about the reliability of identifications stemming from a facial 

composite are particularly relevant, given the significant number of 

wrongful convictions resulting from mistaken eyewitness identifications 

that began with a facial composite. 30 Given the inherent risk of being 

placed in a lineup, even if all recommended procedures are followed, 

the problems inherent with facial composites still create an unnecessary 

and impermissible risk of misidentification. Applying protections to 

only the second half of eyewitness identifications, namely the 

24. See generally Andrew Roberts, Towards a Broader Perspective on the 

Problem of Mistaken Identification: Police Decision-Making and Identification 

Procedures, in 9 LAW AND PSYCHOLOGY: CURRENT LEGAL ISSUES 2006, at 182 (Belinda 

Brooks-Gordon & Michael Freeman eds., 2006) (advocating for less focus on 

improving identification procedures themselves, and more focus on the decision-making 

process of whether to conduct identification procedures in the first place). 

25. See Brathwaite, 432 U.S. at 110. 

26. See TAYLOR, supra note 17, at 11–42. 

27. Id. at 223–32 (describing the FBI Facial Identification Catalog used by 

forensic artists to create hand-drawn composites); Margaret Bull Kovera et al., 

Identification of Computer-Generated Facial Composites, 82 J. APPLIED PSYCHOL. 235, 

235 (1997) (describing facial-composite-production systems used by artists or officers 

to create a composite from preprinted images); Robin Brown, Delaware Police Put Best 

Face Forward, NEWS J. (Wilmington, Del.), Nov. 20, 2007, at A1 (describing FACES, 

a computer program that creates composites from thousands of facial images). 

28. JUNKIN, supra note 1, at 75–77. 

29. Findley & Scott, supra note 17, at 292. 

30. See supra note 17 and accompanying text.



identification of a suspect in a lineup, does not provide enough 

protection to suspects. 

This Comment will focus on due-process requirements as they 

apply to the process of using facial composites in the investigation and 

identification of suspects. Part I of this Comment provides an overview 

of due-process concerns with eyewitness identifications and the 

admissibility standard set forth in Manson v. Brathwaite. Part II 

reviews the current use of facial composites in criminal investigations, 

along with social-science research on the reliability of facial composites 

and their effect on subsequent identifications. Part II also explains how 

the use of facial composites increases the risk of mistaken eyewitness 

identifications, and argues that facial composites should be subject to 

the Brathwaite standard. Part III proposes new guidelines to decrease 

the suggestiveness of facial composites in criminal investigations to 

comply with the Brathwaite standard and reduce the risk of 

misidentifications. 

This Comment concludes that the current use of facial composites 

in criminal investigations is unnecessarily and impermissibly 

suggestive, and the admission of subsequent identifications as evidence 

violates the Due Process Clauses of the Fifth and Fourteenth 

Amendments to the U.S. Constitution. To ensure fairness and to avoid 

mistaken eyewitness identifications, courts should expand the 

application of the Manson v. Brathwaite standard to the use of facial 

composites. This does not mean that identifications resulting from facial 

composites should be inadmissible per se. Rather, the procedures 

involving facial composites should be scrutinized in the same way as 

other identification procedures to determine whether they are so 

suggestive as to give rise to a substantial likelihood of irreparable 

misidentification. 

I. DUE PROCESS AND EYEWITNESS IDENTIFICATIONS 

The Due Process Clauses in the Fifth and Fourteenth Amendments 

to the Constitution require that defendants be afforded a trial that 

comports with “fundamental conceptions of justice which lie at the base 

of our civil and political institutions.” 31 This notion of fairness demands 

that defendants be protected against evidence, such as eyewitness 

identifications, that may jeopardize a fair trial. Recognizing these 

dangers, the Supreme Court established protections against unfair 

eyewitness identifications in Manson v. Brathwaite. 

31. Mooney v. Holohan, 294 U.S. 103, 112 (1935).



A. Due-Process Concerns with Eyewitness-Identification Evidence 

Since 1989, over two hundred people have been exonerated by 

DNA evidence in the United States. 32 The number of exonerations 

climbs even higher when considering other types of evidence. 33 The 

single greatest cause of wrongful convictions is eyewitness 

misidentification, accounting for more wrongful convictions than any 

other factor. 34 Mistaken eyewitness identifications have been attributed 

largely to the inherent unreliability of human perception and memory 

and susceptibility to contamination, in addition to suggestive 

identification procedures used by law enforcement. 35 Compounding the 

problem is the tendency of jurors to treat eyewitness identifications as 

highly persuasive evidence because of their lack of understanding of 

factors that affect the reliability of such identifications. 36 

A common misconception is that the human mind works like a 

video recorder, passively recording all available information and 

storing it for future retrieval. 37 Social-science research has shown that 

not only is our ability to accurately perceive events limited, but 

32. Innocenceproject.org, News and Information: Fact Sheets, 

http://www.innocenceproject.org/Content/351.php (last visited Mar. 16, 2009). Given 

that DNA evidence exists in only a small percentage of cases, and that it is preserved 

for testing in even fewer, this data likely underestimates the true number of wrongful 

convictions. Samuel R. Gross et al., Exonerations in the United States, 1989 Through 

2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 529 (2005). 

33. Although there is no consensus about the exact number of total 

exonerations in the United States (which is partially a result of how exoneration is 

defined), a recent study estimated that there were 340 total exonerations between 1989 

and 2003. Gross et al., supra note 32, at 523–24. This included both DNA exonerations 

and exonerations based on other evidence such as non-DNA forensic science, 

recantations, and confessions. Id. at 524. 

34. Eyewitness misidentification played a role in more than 75 percent of 

DNA exonerations, Innocenceproject.org, Understand the Causes: Eyewitness 

Misidentification, http://www.innocenceproject.org/understand/Eyewitness-Misidentific 

ation.php (last visited Mar. 16, 2009), and in 88 percent of exonerations in rape cases 

between 1989 and 2003. Gross et al., supra note 32, at 544. Other causes of wrongful 

convictions include false confessions, faulty forensic science (“junk science”), jailhouse 

snitches or informants, false witness testimony, police and prosecutorial misconduct, 

and bad lawyering. Innocenceproject.org, supra. 

35. Fredric D. Woocher, Note, Did Your Eyes Deceive You? Expert 

Psychological Testimony on the Unreliability of Eyewitness Identification, 29 STAN. L. 

REV. 969, 970 (1977). 

36. Melissa Boyce et al., Belief of Eyewitness Identification Evidence, in 2 

HANDBOOK OF EYEWITNESS PSYCHOLOGY: MEMORY FOR PEOPLE 501, 501–02 (Rod 

C.L. Lindsay et al. eds., 2007). 

37. Woocher, supra note 35, at 975–76.



memories change and degrade over time. 38 Perception is affected by the 

natural limitations of the human brain, 39 poor observation conditions, 40 

the stressful nature of the event, 41 the race of the viewer, 42 and the 

expectations and personal biases of the viewer. 43 These factors cause 

eyewitnesses both to perceive details that did not exist and to fail to 

perceive details that did exist. 44 In the process of encoding, storing, and 

retrieving memories, details are unconsciously added, altered, or 

forgotten, and are vulnerable to even subtle suggestions, such as 

leading questions or alternate descriptions. 45 Memory accuracy is 

partially a function of time, such that the longer the span between the 

original observation and the retrieval of the memory, the less accurate 

the memory. 46 Human perception and memory affect not only the 

viewing of a crime and later identification, but also the moments in 

between, when a witness may be asked to produce a composite or view 

a composite produced by another witness. 

In addition to the fallibility of the human memory, eyewitness 

misidentifications are also the result of suggestive identification 

procedures used by law enforcement. Unlike the inherent limitations of 

perception and memory, these procedures are within the control of the 

38. See Elizabeth F. Loftus et al., The Psychology of Eyewitness Testimony, 

in PSYCHOLOGICAL METHODS IN CRIMINAL INVESTIGATIONS AND EVIDENCE 3, 25–34 

(David C. Raskin ed., 1989); Christian A. Meissner et al., Person Descriptions as 

Eyewitness Evidence, in 2 HANDBOOK OF EYEWITNESS PSYCHOLOGY: MEMORY FOR 

PEOPLE, supra note 36, at 3, 11–12 ; Woocher, supra note 35, at 982–85. 

39. Because people can only perceive a limited number of stimuli at any given 

time, they engage in perceptual selectivity, concentrating their attention on “the most 

necessary and useful details,” leading to inaccurate perceptions. Woocher, supra note 

35, at 976–77. Because eyewitnesses are often unaware that they are witnessing a crime 

until after the event has passed, they are less likely to selectively perceive those details 

necessary for accurate identifications. Id. at 977. 

40. These include, among others, the duration and distance of the observation 

and the lighting conditions. Id. at 978. 

41. Research shows that stressful situations decrease perception abilities. Id. 

at 979. In particular, the presence of a weapon has been found to reduce the reliability 

of later eyewitness identifications. Gary L. Wells & Elizabeth A. Olson, Eyewitness 

Testimony, 54 ANN. REV. PSYCHOL. 277, 282 (2003). 

42. Research shows that people are less able to identify people of other races, 

regardless of increased contact with other people of that race. Christian A. Meissner et 

al., Person Descriptions as Eyewitness Evidence, in 2 HANDBOOK OF EYEWITNESS 

PSYCHOLOGY: MEMORY FOR PEOPLE, supra note 36, at 3, 15; Woocher, supra note 35, 

at 982. 

43. Encouraged by law enforcement to give a detailed description of a culprit, 

eyewitnesses tend to believe they perceived more than they did. Woocher, supra note 

35, at 981. 

44. Id. at 976–77. 

45. Id. at 983–84. 

46. See id. at 982.



criminal justice system, and have been the focus of reforms across the 

country. 47 These reforms have included avoiding multiple identification 

procedures with the same suspect; 48 instructing eyewitnesses prior to a 

lineup that the real culprit may or may not be present; 49 using doubleblind 

lineups in which the administrator is unaware of the identity of 

the suspect; 50 using sequential lineups, in which the participants are 

shown to the eyewitness one at a time, as opposed to simultaneous 

lineups, in which all participants are shown to the eyewitness at the 

same time; 51 and not giving feedback to eyewitnesses after they make a 

selection. 52 So far, reforms have focused largely on the identification 

itself, rather than procedures leading up to the identification, such as 

the development of suspects through the use of facial composites. 53 

The factors that affect the reliability of eyewitness identifications 

are not always intuitive, and are often counterintuitive. 54 Studies show 

47. See, e.g., Gary L. Wells, Eyewitness Identification: Systemic Reforms, 

2006 WIS. L. REV. 615, 616 n.9, 634–35, 641–43 [hereinafter Wells, Systemic 

Reforms ] (describing eyewitness-identification reforms in California, Iowa, 

Massachusetts, Minnesota, New Jersey, North Carolina, Virginia, and Wisconsin); 

Gary L. Wells et al., From the Lab to the Police Station: A Successful Application of 

Eyewitness Research, 55 AM. PSYCHOLOGIST 581, 589–95 (2000) (describing the U.S. 

Department of Justice’s development of national guidelines for the collection and 

preservation of eyewitness evidence in response to the role of mistaken eyewitness 

identifications in wrongful convictions). 

48. See OFFICE OF THE ATTORNEY GEN., WIS. DEP’T OF JUSTICE, MODEL 

POLICY AND PROCEDURE FOR EYEWITNESS IDENTIFICATION 6 (2005). Witnesses who may 

recognize a suspect they have seen in another procedure believe that it suggests the 

suspect is the culprit, or the witness may unconsciously recognize the suspect from the 

earlier procedure rather than the original event. Id. 

49. Wells & Olson, supra note 41, at 286. Studies show that when witnesses 

are given this instruction there is a considerable reduction in mistaken identifications 

and little effect on accurate identifications. Id. 

50. Id. at 289. Lineup administrators who are unaware of the identity of the 

suspect are unable to provide clues, whether consciously or not, to the eyewitness. Id. 

51. Id. at 288. Sequential lineups discourage witnesses from engaging in 

relative judgment, a process in which people select the participant who most resembles 

their memory of the culprit. Id. at 286. Simultaneous lineups are particularly dangerous 

when the nonsuspect participants in the lineup, known as fillers, differ from the written 

description of the culprit because they can be easily eliminated, particularly if the 

suspect is the only participant with a poignant detail, such as a scar or facial hair. See 

Wells, Systemic Reforms, supra note 47, at 623–24. 

52. See Wells, Systemic Reforms, supra note 47, at 621. Feedback can inflate 

a witness’s confidence in his or her selection. Id. 

53. See Roberts, supra note 24. 

54. Tanja Rapus Benton et al., Has Eyewitness Testimony Research 

Penetrated the American Legal System? A Synthesis of Case History, Juror 

Knowledge, and Expert Testimony, in 2 HANDBOOK OF EYEWITNESS PSYCHOLOGY: 

MEMORY FOR PEOPLE, supra note 36, at 453, 475–85 (concluding that many eyewitness 

issues are not common sense to jurors, despite widespread belief that they are); James



that jurors, and to a lesser extent judges, tend to place undue reliance 

on the ability of eyewitnesses to accurately perceive and retain 

memories. 55 In particular, jurors tend to place considerable reliance on 

the confidence of an eyewitness, which has little or no correlation to 

accuracy. 56 Alternatively, jurors tend to underestimate the value of 

recent identification reforms, such as the administration of the lineup 

and selection of lineup fillers. 57 Even if experts testify about indicators 

of reliability, jurors may still believe eyewitness identifications over 

convincing alibis. 58 

B. Due Process Applied: The Manson v. Brathwaite Standard 

Due-process concerns with reliability of eyewitness identifications 

began in the 1960s, when the rights of defendants gained considerable 

attention in the courts—years before DNA testing was available. 59 In 

United States v. Wade, 60 the Supreme Court first expressed concern 

M. Doyle, Legal Issues in Eyewitness Evidence, in PSYCHOLOGICAL METHODS IN 

CRIMINAL INVESTIGATION AND EVIDENCE, supra note 38, at 125, 127 (“[C]ommonsense 

principles, such as confidence means accuracy or stress enhances alertness [are 

questioned by research.]”). 

55. Benton et al., supra note 54, at 484–87 (stating that laypeople have an 

underlying belief that eyewitnesses in general tend to be accurate, even when they are 

inaccurate). 

56. Boyce et al., supra note 36, at 510; Brian R. Clifford & Graham Davies, 

Procedures for Obtaining Identification Evidence, in PSYCHOLOGICAL METHODS IN 

CRIMINAL INVESTIGATION AND EVIDENCE, supra note 38, at 47, 80 (noting that some 

studies have found that confidence is correlated to accuracy, although the correlation is 

low). 

57. Boyce et al., supra note 36, at 514–15. This may be because the public is 

generally unaware of the research on the importance of police procedures on reducing 

misidentifications. Id. at 516. 

58. See Woocher, supra note 35, at 970. Steven Avery, convicted of sexual 

assault, had sixteen alibi witnesses testify that he was pouring concrete when the crime 

occurred. Penny Beerntsen, Speech at the Benjamin N. Cardozo School of Law 

Symposium: Reforming Eyewitness Identification: Convicting the Guilty, Protecting the 

Innocent (Sept. 12–13, 2004), in 4 CARDOZO PUB. L. POL’Y & ETHICS J. 239, 245 

(2006). The victim positively identified Avery, and he was sentenced to thirty-two 

years in prison. Id. Wilton Dedge, convicted of sexual assault, had six alibi witnesses 

testify that he was in another city at the time of the crime. AFTER INNOCENCE 

(Showtime Independent Films 2005). The victim positively identified Dedge, and he 

was sentenced to two concurrent life sentences. Id. Tim Durham, convicted of rape and 

robbery, had eleven upstanding alibi witnesses testify that he was participating with his 

father in a skeet-shooting contest 250 miles away in another state. SIMON, supra note 

17, at 32. The victim positively identified Durham, and he was sentenced to 3220 years 

in prison. Id. Avery, Dedge, and Durham were all exonerated by DNA testing. 

Innocenceproject.org, supra note 17. 

59. See Doyle, supra note 54, at 133. 

60. 388 U.S. 218 (1967).



with reliability of eyewitness identifications, noting that “identification 

evidence is peculiarly riddled with innumerable dangers and variable 

factors which might seriously, even crucially, derogate from a fair 

trial.” 61 The Court went on to acknowledge that one of the causes of 

mistaken identifications is “the degree of suggestion inherent in the 

manner in which the prosecution presents the suspect to witnesses for 

pretrial investigation.” 62 Defendants have traditionally relied on crossexamination 

to challenge eyewitnesses and protect themselves against 

the risks of mistaken identifications. 63 Although cross-examination is a 

very important feature of a trial, it alone does not assure accuracy and 

reliability. 64 On the basis of these concerns, the Supreme Court 

provided preventative rules to minimize the risk of mistaken eyewitness 

identifications based on guarantees of due process provided by the Fifth 

and Fourteenth Amendments. 65 

As set forth in Brathwaite, suggestive identification procedures 

violate a defendant’s guarantee of due process when there is a 

substantial likelihood of irreparable misidentification. 66 The remedy is 

the exclusion of the evidence at trial. 67 This protection embraces all 

forms of identification procedures, including show-ups, lineups 

(including both photographic and live), and in-court identifications, 

regardless when they occur. 68 

In balancing the protection of suspects with the administration of 

justice, Brathwaite established that identifications arising from 

suggestive procedures are still admissible if they are reliable in light of 

61. Id. at 228. 

62. Id. 


64. Wade, 388 U.S. at 235. 

65. See, e.g., Neil v. Biggers, 409 U.S. 188 (1972) (concluding that 

unnecessarily suggestive identifications violate due process unless found to be reliable 

under the totality of all the circumstances); Simmons v. United States, 390 U.S. 377 

(1968) (holding that convictions based on in-court identifications must be set aside if 

based on impermissibly suggestive out-of-court procedures that give rise to a very 

substantial likelihood of irreparable misidentification); Stovall v. Denno, 388 U.S. 293 

(1967) (finding that unnecessarily suggestive eyewitness procedures conducive to 

irreparable mistaken identification violate due process of law). The protections in Wade 

were based on the Sixth Amendment right to counsel. 388 U.S. at 224. A later ruling 

holding that the Sixth Amendment applies only to postindictment procedures, and not to 

those occurring before formal charging, Kirby v. Illinois, 406 U.S. 682 (1972), leaves 

many identification procedures subject only to due-process protections. See Doyle, 

supra note 54, at 133–34. Almost all facial composites, show-ups, and photographic 

and live lineups are conducted before the defendant is formally charged, leaving them 

without the protection of the Sixth Amendment. Id. 

66. See 432 U.S. 98, 106 (1977). 

67. Id. at 110. 

68. Doyle, supra note 54, at 135.



the totality of the circumstances. 69 The Supreme Court reasoned that 

this approach would still deter law enforcement from using suggestive 

procedures out of fear that identifications might be excluded as 

unreliable. 70 Additionally, the Court also emphasized the importance of 

admitting reliable evidence that might have otherwise been excluded to 

both protect the innocent from being wrongfully convicted and keeping 

the guilty from going free. 71 

Courts and scholars are beginning to challenge Brathwaite; 

however, the criticism is largely directed toward the reliability test, and 

not the suggestiveness standard. 72 Most criticism directed toward the 

suggestiveness standard emphasizes only that it has not been sufficiently 

applied, or that the standard needs to be strengthened to protect the 

original concern of providing defendants with a fair trial when 

confronted with eyewitness identifications. 73 

69. Brathwaite, 432 U.S. at 114. The factors used to determine reliability 

include the opportunity of the witness to view the criminal at the time of the crime, the 

witness’s degree of attention, the accuracy of prior descriptions, the witness’s level of 

certainty, and the time between the crime and the identification. Id. These factors must 

be weighed against the suggestiveness of the identification. Id. 

70. Id. at 112. 

71. Id. 

72. The challenges to Brathwaite are arising in light of the number of 

wrongful convictions stemming from misidentifications. See, e.g., Commonwealth v. 

Johnson, 650 N.E.2d 1257, 1261 (Mass. 1995); State v. Dubose, 2005 WI 126, 31, 

286 Wis. 2d 143, 699 N.W.2d 582; Timothy P. O’Toole & Giovanna Shay, Manson v. 

Brathwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to 

Eyewitness Identification Procedures, 41 VAL. U. L. REV. 109 (2006); Calvin TerBeek, 

A Call for Precedential Heads: Why the Supreme Court’s Eyewitness Identification 

Jurisprudence Is Anachronistic and Out-of-Step with the Empirical Reality, 31 LAW & 

PSYCHOL. REV. 21, 22 (2007); Ruth Yacona, Manson v. Brathwaite: The Supreme 

Court’s Misunderstanding of Eyewitness Identification, 39 J. MARSHALL L. REV. 539, 

541–42 (2006). The reliability test in particular is being challenged in light of socialscience 

research findings that the reliability factors are not actually indicative of 

whether or not an identification is reliable. See Gary L. Wells & Deah S. Quinlivan, 

Suggestive Eyewitness Identification Procedures and the Supreme Court’s Reliability 

Test in Light of Eyewitness Science: 30 Years Later, 33 LAW & HUM. BEHAV. 1, 9 

(2009). This Comment argues that even if the reliability test were eliminated, thus 

allowing sufficiently suggestive procedures to be inadmissible, Brathwaite’s narrow 

focus on lineup procedures would still not adequately protect suspects from 

misidentifications if facial composites played a role in the identifications. 

73. See Doyle, supra note 54, at 136–38. Brathwaite has never been expanded 

beyond procedures of actual identifications to include procedures involving the use of 

facial composites, which lead to identifications. Applying Brathwaite to the use of facial 

composites would help to strengthen the standard by providing more protection against 

unreliable identifications.



II. FACIAL COMPOSITES 

Police use facial composites as an investigative tool to help identify 

an unknown culprit. Although composites have been used in criminal 

investigations for decades, only recently have they become the subject 

of social-science research. The results have established that not only are 

the current methods of building facial composites unreliable, but they 

also have an effect on the reliability of subsequent eyewitness 

identifications. To protect against misidentifications stemming from the 

use of facial composites, the protections of Brathwaite should be 

expanded to apply not just to procedures in which an eyewitness 

identifies a suspect, but also to the procedures that label individuals as 

suspects in the first place. 

A. The Use of Facial Composites in Criminal Investigations 

For over a century, law-enforcement agencies have sought to 

create images of unknown culprits to help identify potential suspects. 74 

The resulting image, known as a facial composite, 75 has a variety of 

uses within a criminal investigation. Facial composites may be 

distributed to the public to generate leads 76 or used solely as a tool to 

confirm or eliminate suspects gathered through other means. 77 


75. A facial composite is the composite drawing of a face “made up from the 

combination of individually described component parts.” TAYLOR, supra note 17, at 

197. A facial composite may be a freehand drawing, or may be developed from a handassembled 

or computer-generated system. Id. at 197–98. 

76. Gary L. Wells et al., Building Face Composites Can Harm Lineup 

Identification Performance, 11 J. OF EXPERIMENTAL PSYCHOL.: APPLIED 147, 147 

(2005). 

77. Stephen MacDonald, ‘Wanted’ Art: Meet a Man Who Draws Shady 

Characters, WALL ST. J., Aug. 2, 1984. In the United Kingdom, only 10 percent of 

facial composites are released to the media; the others are used for internal inquiries. 

Graham M. Davies & Tim Valentine, Facial Composites: Forensic Utility and 

Psychological Research, in 2 HANDBOOK OF EYEWITNESS PSYCHOLOGY: MEMORY FOR 

PEOPLE, supra note 36, at 59. By contrast, in a recent study of facial composites in the 

United States, 68 percent of respondents from law-enforcement agencies reported that 

they release composites to the news media. Dawn McQuiston-Surrett et al., Use of 

Facial Composite Systems in U.S. Law Enforcement Agencies, 12 PSYCHOL., CRIME & 

LAW 505, 511 (2006). Facial composites can also be used as a “poor man’s lie detector” 

to determine whether a witness is being truthful. See TAYLOR, supra note 17, at 187 

(“Some people describe a face that is totally fictitious, making it up as they go along, 

while others describe a face that actually exists, which they have predetermined to 

focus upon mentally.”); Ben Penserga, Sketch Artists, DAILY TIMES (Salisbury, Md.), 

Oct. 20, 2003, at 1.



The method of creating a likeness has changed with technology 

over the years. 78 Traditionally, facial composites were hand-drawn 

sketches, prepared by either a freelance artist or an officer who had a 

natural talent for drawing. 79 Yet, despite the artistic skills of forensic 

artists, most have little formal training in forensic art and there is little 

to no standardization within the field. 80 

Police artists stress that the purpose of drawing a composite is not 

to create a photographic image of the person, but rather to create a 

likeness. 81 As one forensic artists explains, “When you see a 

photograph, it points to a real-life face we’re looking for. What we’re 

saying with a pencil sketch is that the statement is broad—anybody this 

face reminds you of, let us know.” 82 The process begins by 

interviewing an eyewitness to obtain a description of the culprit. 83 

Given this initial information, the artist should sketch the basic 

proportions of the face and establish the basic facial character, rather 

than focusing on individual features. 84 This is because humans 

remember faces holistically, not feature-by-feature, focusing on the 

spatial relationships of the face. 85 The artist should follow by asking 


79. Id. at 8. 

80. As recently as the 1980s, most forensic artists received no special training 

and there was no standardization within the field. Frank Domingo, Composite Art: A 

Need for Standardization, IDENTIFICATION NEWS, June 1984, at 7. As one police artist 

noted, “There are no rules. Nobody teaches it, and everyone who does it has to figure 

out his own way of working.” MacDonald, supra note 77. The International 

Identification Association now offers certifications in composite art, requiring 120 

hours of education from approved schools, two years’ experience of full-time work, 

fifteen completed composites, and two letters of recommendation. TheIAI.org, Forensic 

Artist Certification Process, http://www.theiai.org/certifications/artist/index.php (last 

visited Mar. 16, 2009). However, there is still an overall lack of standardization 

nationally. Clifford & Davies, supra note 56, at 51. 

81. See TAYLOR, supra note 17, at 166; Graham Davies, Capturing Likeness 

in Eyewitness Composites: The Police Artist and His Rivals, 26 MED. SCI. & LAW 283, 

284 (1986). 

82. Robert Christgau, First an Artist, Then a Cop, 6 SOC. ACTION & LAW 41, 

41 (1980). 

83. Clifford & Davies, supra note 56, at 48–52. To avoid suggestion, 

witnesses should be encouraged to begin a free recall of the culprit, with the artist 

guiding the conversation with open-ended questions. See TAYLOR, supra note 17, at 

168. 

84. TAYLOR, supra note 17, at 143–45, 168–69. Other methods differ in that 

they allow witnesses to view photographic references before a preliminary sketch. See 

Clifford & Davies, supra note 56, at 52. The danger in this is that the witness’s 

memory may be contaminated by the visual image. See infra note 91 and accompanying 

text. 

85. See John W. Sheperd & Hayden D. Ellis, Face Recall—Methods and 

Problems, in PSYCHOLOGICAL ISSUES IN EYEWITNESS IDENTIFICATION 87, 88 (Siegfried



more structured, open-ended questions about particular features of the 

face, or by offering multiple-choice-style questions. 86 

Many artists choose to selectively show the witness photographic 

references from facial-identification catalogs, mug shots, or magazines 

to fine-tune the drawing. 87 Facial-identification catalogs consist of pages 

filled with photographs of faces, in which most of the face is blocked 

out except one individual feature. 88 For example, a page marked 

“Bulging Eyes” from the FBI Facial Identification Catalog portrays 

sixteen photographs of male faces with gray boxes placed over the 

lower portion of the face covering the nose and mouth, focusing the 

reader on the eyes. 89 If a witness described a culprit as having bulging 

eyes, an artist would be able to more accurately depict the eyes by 

looking at a visual reference selected by the witness, rather than the 

witness’s verbal description alone. 90 Although photographic references 

are useful to draw features not easily described by words, they should 

be used with care to avoid contamination of the witnesses’ memories. 91 

After the completion of a sketch, witnesses should be allowed to view 

the image, make final suggestions, and evaluate the quality of the 

sketch. 92 

In the 1950s, mechanical systems composed of clear sheets printed 

with various individual facial features were developed as an alternative 

to hand-drawn composites. 93 Although features could be altered with a 

Ludwig Sporer et al. eds., 1996). Because untrained artists tend to focus more on 

features, rather than proportions, composites tend to be inaccurate likenesses. TAYLOR, 

supra note 17, at 95; see infra Part II.B.1. 

86. TAYLOR, supra note 17, at 169. Open-ended and multiple-choice forms of 

questioning avoid the potential for suggestion and ensure the witness is not 

subconsciously altering his or her memory based on new information. Id. at 191. For 

example, “Tell me about his eyes?” or, “Would you describe his eyes as wide open and 

large, average in size, or small and narrowed?” are more appropriate than, “Were his 

eyes brown or hazel?” Id. 

87. Id. at 223–27. 

88. LOIS GIBSON, FORENSIC ART ESSENTIALS: A MANUAL FOR LAW 

ENFORCEMENT ARTISTS 15–18 (2007). 

89. Id. at 15. 

90. TAYLOR, supra note 17, at 222. 

91. See id. at 146–48, 169–71, 191–92, 222; see also infra Part I.A. One 

indicator that a witness’s mind has been contaminated by other images is whether or not 

the sketch deviates from the original description. TAYLOR, supra note 17, at 171. 

92. TAYLOR, supra note 17, at 171, 232. Some witnesses might enhance their 

confidence of the sketch at a later point, so it is important to record their confidence 

when the composite is first produced. 

93. Id. at 21–22. Depending on the type of system, the features were either 

stacked on top of each other or arranged together to create a facial composite. Id. at 22, 

202–03.



wax pencil, 94 they inherently provided witnesses with a more limited 

selection of features. Additionally, since law-enforcement agencies 

usually relied on mechanical systems because they could not afford or 

did not have access to trained composite artists, 95 the systems were 

generally operated by officers with little or no training. 96 

This combination of few options and untrained operators can have 

disastrous results. The facial composite that led to the identification of 

Bloodsworth was produced with a mechanical composite system by an 

officer with no artistic skills and only three days of training at a 

seminar ten years earlier. 97 When the witness, a young boy, asked if the 

mustache could be thickened, the officer refused. 98 The only other 

mustaches resembled Fu Manchu mustaches, and the officer did not 

want to waste time calling in a freelance artist. 99 The young boy was 

also unsatisfied with the hair and eyes, but was limited to the options 

offered by the system. 100 Despite these misgivings, the police 

distributed the sketch to the public. 101 

Although mechanical systems are still in use, law-enforcement 

agencies in the United States briefly reverted to hand-drawn composites 

in the 1970s until the development of computer systems in the 1980s. 102 

Given the scarcity and high cost of forensic artists, many lawenforcement 

agencies have chosen to rely on computer systems 

instead. 103 Although they provide ease of use, they contain the same 

94. Id. at 203. 

95. See Clifford & Davies, supra note 56, at 52; Davies, supra note 81, at 289 

(“Police artists are a precious and expensive commodity which is only ever likely to be 

available to the largest of police departments. To distil the essence of their skills into a 

cheap and easily-operated package suitable for a standard microcomputer is an obvious 

next step in the development of the composite.”). 

96. Clifford & Davies, supra note 56, at 55. Not only were most operators 

unable to alter features accurately, but because they were not artists, they also tended to 

know little about the importance of proportion. TAYLOR, supra note 17, at 95. Even if a 

witness accurately selected individual features, incorrect positioning of the features 

caused by unskilled operators or the natural limitations of the system could result in a 

likeness drastically different from the culprit. Clifford & Davies, supra note 56, at 60. 

97. JUNKIN, supra note 1, at 44–45. 

98. Id. at 46. 

99. Id. 

100. Id. at 45–46. 

101. Id. at 47. 

102. TAYLOR, supra note 17, at 26–36. The computer systems are based on the 

mechanical systems of assemblage. Id. at 36. 

103. See Laura Kuhn, High-Tech Sketch Program Helps Police Catch Crooks, 

DAILY ILLINI (Champaign, Ill.), Apr. 23, 1999; Penserga, supra note 77. In a recent 

survey, 80 percent of law-enforcement respondents reported using a computer system to 

create a composite. See McQuiston-Surrett et al., supra note 77, at 509.



problems as their predecessors: limited features with limited ability to 

modify the images. 104 

The effectiveness of facial composites in identifying suspects is 

difficult to measure. Law-enforcement agencies typically do not keep 

records of facial composites that led to arrests, or records showing how 

accurately the composites resembled those eventually convicted. 105 

Furthermore, witnesses’ memories are subject to contamination by 

subtle suggestions in descriptions of the culprit or photographs they 

view while producing the composite. 106 For example, some victims 

unknowingly describe a police officer who appeared at the scene or 

someone in the ambulance. 107 

Facial composites can also be so generic that they resemble many 

people. 108 While this may result in additional leads, it creates 

unwarranted suspicion of those who are innocent. 109 Despite all the 

good-faith efforts of forensic artists, most composites do not accurately 

resemble the culprits (or are so generic they resemble everyone). 110 

Additionally, they have the ability to taint the memory of the witnesses 

who help prepare them, twice furthering the risk of a later 

misidentification. 111 Recently, the varied uses of facial composites in 

criminal investigations have been the subject of psychological research; 

this research has undermined the reliability of facial composites and 

their effectiveness in criminal investigations. 

B. Social-Science Research on Facial Composites 

A growing body of social-science research has revealed that the 

current methods of creating facial composites are unable to produce 

reliably accurate likenesses of suspects. Additionally, studies have also 

found that eyewitnesses who help build facial composites are less likely 

104. See TAYLOR, supra note 17, at 203–04. Computer systems often lack 

sufficient female features and features of certain racial and ethnic groups. Id. at 204. 

They are also limited in their ability to add specific details, such as hats, jewelry, or 

unique hairstyles. Id. 

105. Clifford & Davies, supra note 56, at 52. 

106. See supra notes 43, 91, and accompanying text. 


108. See Kuhn, supra note 103 (“[P]ictures produced by using [E-FIT, a 

computer composite system] tend to be extremely general in appearance and prompt 

people to see their neighbors and classmates in the pictures . . . . [T]he vagueness of 

the pictures was a problem with the Identi-Kit as well.”). 

109. One artist insists that “[c]omposites do not get innocent people in 

trouble.” TAYLOR, supra note 17, at 167. However, the lengthy list of names supra 

note 17 suggests the opposite. 

110. See infra Part II.B.1. 

111. See infra Part II.B.2.



to accurately identify suspects in subsequent identifications. These two 

findings highlight the dangers of using facial composites and the 

potential for mistaken identifications. 

1. RELIABILITY OF FACIAL COMPOSITES 

Social-science studies have consistently shown that all methods 

used by law enforcement to produce facial composites are generally 

unreliable. 112 The various methods, including hand-drawn sketches and 

composites created from mechanical or computerized systems, are often 

unable to produce a recognizable image of the person being 

described. 113 According to psychologist Charlie Frowd, composites only 

112. See generally OFFICE OF THE ATTORNEY GEN., supra note 48, at 26 

(“Research tends to show that none of the existing methods can reliably produce 

recognizable composites in real-world settings.”); McQuiston-Surrett et al., supra note 

77, at 506 (“[R]eliance on forensic artists for this purpose has largely been replaced by 

facial composite ‘systems’ . . . . Yet decades of empirical studies have demonstrated 

that there were difficulties with both traditional composite systems and newer 

computer-based technologies in their ability to accurately depict an individual . . . .”); 

Wells et al., supra note 76, at 147 (“Research has consistently shown that various facial 

composite systems yield hit rates on the original faces that are barely above chance 

levels of performance.”). 

113. See, e.g., Davies & Valentine, supra note 77, at 71 (describing a 1999 

study in which only 10 percent of E-FIT composites made from views of famous faces 

were named, and only 6 percent of composites were made from memory; also reporting 

a 25 percent overall false-naming rate); Graham Davies & Melissa Little, Drawing on 

Memory: Exploring the Expertise of a Police Artist, 30 MED. SCI. & LAW 345, 352 

(1990) (finding the feature-by-feature approach employed by mechanical systems 

produces poor likeness); Graham Davies et al., Facial Composite Production: A 

Comparison of Mechanical and Computer-Driven Systems, 85 J. APPLIED PSYCHOL. 

119, 123 (2000) (stating that witnesses cannot build a reliable likeness on a computer 

system relying on memory alone); Hadyn Ellis et al., An Investigation of the Use of the 

Photo-fit Technique for Recalling Faces, 66 BRIT. J. PSYCHOL. 29, 34–35 (1975) (noting 

that the accuracy rate of choosing the correct target from several faces based on a 

composite created by Photo-FIT was only 12.5 percent); Charlie D. Frowd et al., 

Contemporary Composite Techniques: The Impact of a Forensically-Relevant Target 

Delay, 10 LEGAL & CRIMINOLOGICAL PSYCHOL. 63, 75 (2005) (finding that participants 

were only able to correctly identify images of famous faces produced by sketch artists 8 

percent of the time, and 3 percent of the time for computerized systems); Debra L. 

Green & R. Edward Geiselman, Building Composite Facial Images: Effects of Feature 

Saliency and Delay of Construction, 74 J. APPLIED PSYCHOL. 714, 717 (1989) 

(discussing the identification accuracy of faces with salient features based on Identi-Kit 

composites at chance levels); Christine E. Koehn & Ronald P. Fisher, Constructing 

Facial Composites with the Mac-a-Mug Pro System, 3 PSYCHOL. CRIME & LAW 209, 

215 (1997) (stating that ratings of likeness of composites created on Mac-a-Mug 

compared to photographs were “not even remotely similar,” and only 4 percent of 

identifications were accurate lineups); Kenneth R. Laughery & Richard H. Fowler, 

Sketch Artist and Identi-Kit Procedures for Recalling Faces, 65 J. APPLIED PSYCHOL. 

307, 313–15 (1980) (noting that Identi-Kit composites rated poorer than artists’ sketches



have an accuracy rate of about 20 percent whether created by a 

composite artist or a computerized system. 114 That rate drops into the 

single digits if the witness waits for a few days to a week before 

preparing the composite, which is typical in a criminal investigation. 115 

If an eyewitness to a crime is asked to produce a facial composite, 

research shows that the result will likely be an image that does not 

resemble the culprit, making it less likely that the culprit will be 

identified and more likely that innocent people who resemble the sketch 

will become suspects. 116 

Mechanical composite systems, particularly Identi-Kit and Photo- 

FIT have been the focus of numerous psychological studies that show 

an inability to accurately capture the likeness of a culprit. 117 An initial 

study of Photo-FIT illustrated its inability to create accurate 

likenesses. 118 Participants were only able to correctly match one in eight 

of the composites with the photographs they were supposed to 

represent, even when looking at the photographs. 119 Additional studies 

for likeness; all images, including those produced by artists, were generally regarded as 

poor quality). 

114. Mark Roth, Why Police Composites Don’t Always Hit Mark, PITTSBURGH 

POST-GAZETTE, Mar. 25, 2007, at A1. 

115. Id. 

116. Despite the fact that composite artists and law enforcement often insist that 

resemblance to a composite is not a positive identification of the culprit or evidence of 

guilt by itself, in reality that is not always the case. Even after DNA tests excluded 

Wilton Dedge as the donor of two pubic hairs found on a rape victim’s bed sheets— 

hairs that were used as evidence of Dedge’s guilt at trial—the prosecutor refused to 

accept that Dredge could be innocent, arguing that the strong resemblance between 

Dedge and the composite sketch of the rapist established his guilt. AFTER INNOCENCE 

(Showtime Independent Films 2005). In another case, James O’Donnell was arrested 

for a sexual assault after an anonymous caller alerted the authorities that O’Donnell 

resembled a composite sketch. SIMON, supra note 17, at 80. Before placing him in a 

lineup, an officer pulled back O’Donnell’s hair and slicked down the sides so that he 

would more closely resemble the sketch; the victim identified O’Donnell in the lineup 

and he was later convicted. Id. As Jennifer Thompson identified Ronald Cotton in a 

lineup, she thought to herself, “You were the closest likeness of the drawing. You had 

become my rapist.” AFTER INNOCENCE (Showtime Independent Films 2005). The 

significant weight placed on a composite by the prosecutor in Dedge’s case, an officer 

in O’Donnell’s case, and the victim in Cotton’s case portrays the power of a composite 

throughout the levels of the criminal justice system to convey guilt, despite a lack of 

independent evidence. Dedge, O’Donnell, and Cotton were all eventually exonerated 

after DNA testing conclusively proved their innocence. Innocenceproject.org, supra 

note 17. 

117. Frowd et al., supra note 113, at 64. 

118. Ellis et al., supra note 113, at 34–35. 

119. Id.



confirmed the poor quality of likeness produced by composites, with 

researchers concluding that the system itself was inadequate. 120 

Breaking down the assumption that a picture is worth a thousand 

words, a surprising study found that the verbal descriptions were 

significantly superior to Photo-FIT composites as guides to likeness; 

judges were more likely to identify a target upon reading a verbal 

description than viewing a composite. 121 Research on Identi-Kit showed 

similar, unfavorable results. Hand-drawn composites produced by an 

artist were rated as superior representation to those produced using 

Identi-Kit, including both composites made from memory and those 

made with a photograph in view. 122 

Supporting the findings made within the confines of a laboratory, 

studies of the operational effectiveness of mechanical composite 

systems reveal disappointing results. 123 According to officers in the 

United Kingdom, Photo-FIT was only responsible for solving 5 percent 

of cases, and was considered not very useful or not useful at all in 45 

percent of cases. 124 In Israel, roughly 25 percent of cases using Identi- 

Kit led to convictions, but only 2 percent were significantly aided by 

the composite. 125 These results are significant given that roughly 22 

percent of police officers in the United States report relying upon 

mechanical systems to create composites. 126 

Despite the enhanced offerings of computerized systems, such as a 

more expansive selection of facial features and accessories and greater 

ability to modify the images, they may be as unreliable as mechanical 

systems. 127 Initial research of one program found that the system was 

120. Graham Davies et al., Face Identification: The Influence of Delay upon 

Accuracy of Photofit Construction, 6 J. POLICE SCI. & ADMIN. 35, 42 (1978); Hadyn D. 

Ellis et al., A Critical Examination of the Photofit System for Recalling Faces, 21 

ERGONOMICS 297, 306 (1978) (“The results of the experiments reported here . . . 

suggest that there are severe limitations to the usefulness of the Photofit system as a 

method for enabling people to recall faces.”). 

121. Donald F. M. Christie & Hadyn D. Ellis, Photofit Constructions Versus 

Verbal Descriptions of Faces, 66 J. APPLIED PSYCHOL. 358, 362 (1981). Additionally, 

presenting both a verbal description and a composite was no better than the verbal 

description alone. Id. 

122. Laughery & Fowler, supra note 113, at 313–15. 

123. See supra note 103 and accompanying text for an explanation of why there 

are not similar studies in the United States. 

124. Tony Kitson et al., Let’s Face It, 30 POLICE RES. BULL. 7–8 (1978). 

125. A.M. Levi & Joseph Almog, The Police Composite, 5 COGNITIVE TECH. 

J. 26, 29 (2000). 

126. Dawn E. McQuiston & Roy S. Malpass, Use of Facial Composite 

Systems in U.S. Law Enforcement Agencies 2 (Mar. 2000) (unpublished manuscript), 

available at http://eyewitness.utep.edu/Documents/McQuiston%20APLS%202000.pdf. 

127. Davies & Valentine, supra note 77, at 71.



able to produce highly recognizable likenesses under ideal conditions: 

an experienced operator producing a composite with constant reference 

to a photograph. 128 Under more forensically realistic conditions, 

however, the program failed to produce recognizable composites. 129 

When a composite was produced from memory, as is likely in real life 

when a victim witness produces a composite of a culprit, the 

identification accuracy rate dropped to below 5 percent. 130 The 

computer program was so inaccurate, people could not identify 

composites of people familiar to them; their accuracy rate was less than 

1 percent. 131 Of course, accuracy would probably be lower for 

identifying strangers. Another mechanical program fared no better, 

with accuracy rates for composites produced by memory at less than 10 

percent. 132 

Although hand-drawn composites have been found to produce 

better likenesses relative to mechanical or computerized systems, their 

overall reliability is still questionable. 133 Hand-drawn composites 

128. Brian L. Cutler et al., Empirical Examination of a Computerized Facial 

Composite Production System, 1 FORENSIC REP. 207, 211–12 (1988). 

129. See Koehn & Fisher, supra note 113, at 215 (“[E]ffective composites can 

be generated when the target is immediately present to the system operator, but not 

when the composite is constructed from memory.”); Kovera et al., supra note 27, at 

241, 245 (“[T]he Mac-a-Mug system’s facility for producing recognizable composites 

from memory under nonlaboratory conditions is severely limited . . . . [these findings] 

raise doubts about the likelihood that composites prepared under field conditions will 

yield a pinpointed identification of a perpetrator by individuals who know the 

perpetrator.”). 

130. See Koehn & Fisher, supra note 113, at 215. 

131. See Kovera et al., supra note 27, at 241 (finding that participants 

identified less than 1 percent of composites made after people familiar to them). The 

study also found that viewers erroneously believed that they could recognize the faces 

in composites when they could not; of the 167 names offered by viewers, only three 

matched. Id. at 240–41. These findings support the lack of correlation between 

confidence and accuracy, as well as the inability of lay people to understand this lack of 

correlation. See supra notes 56–57 and accompanying text. 

132. See Graham Davies & Heidi Oldman, The Impact of Character Attribution 

on Composite Production: A Real World Effect?, 18 CURRENT PSYCHOL. 128, 135 

(1999). A similar study found judges were able to accurately identify 25–35 percent of 

composites of famous personalities; however, composites made from memory were not 

distinguished from composites made with photographs in view. Nicola A. Brace et al., 

Investigating E-FIT Using Famous Faces, in FORENSIC PSYCHOLOGY AND LAW: 

TRADITIONAL QUESTIONS AND NEW IDEAS 272, 272 (Alicja Czerederecka et al. eds., 

2000). 

133. See John W. Shepherd & Hadyn D. Ellis, Face Recall—Methods and 

Problems, in PSYCHOLOGICAL ISSUES IN EYEWITNESS IDENTIFICATION, supra note 85, at 

104–05. Some researchers believe that there have not been enough studies of handdrawn 

composites to accurately assess their reliability. See id.; Wells et al., supra note 

76, at 148. Even though hand-drawn images have been found to be more accurate 

relative to other methods, on an absolute scale they are far from ideal. See Davies &



produced by trained artists with the faces in view are significantly 

better than likenesses produced from verbal descriptions of a witness’s 

memory. 134 Yet producing a composite from a memory is how most 

composites are produced for criminal investigations. If there were a 

photograph or other likeness available of the culprit, there would be no 

need for a composite. 135 Many sketch artists measure their success by 

the number of people in prison, one even often flaunting the number on 

death row. 136 However, these accounts are largely anecdotal, and can be 

countered with stories of innocent people who were convicted in part 

because of a resemblance to a sketch. 137 Regardless of some success 

stories of highly trained and skilled artists, most law-enforcement 

agencies now rely upon manual or computerized technologies, despite 

empirical evidence showing they are unreliable. 138 

Some researchers have speculated that facial composites are poor 

representations because of a lack of training of both artists and 

operators of the mechanical and computerized systems. 139 Experienced 

operators have been shown to produce composites with significantly 

Valentine, supra note 77, at 77 (“Skilled police artists remain the benchmark against 

which all systems must be compared . . . . However, although artists are quick to 

trumpet their successes, they have also had their failures, and the overall level of 

accuracy is hard to compute for a skill so idiosyncratic and poorly understood.”); 

Laughery & Fowler, supra note 113, at 315 (noting that artist images are generally 

regarded as poor quality). 

134. Shepherd & Ellis, supra note 133, at 104–05. 

135. Composites are only created when there is no known likeness of a suspect. 

136. See Megan Almon, Forensic Artist Helps Put Bad Guys Behind Bars, 

TIMES-HERALD (Scot.), Sept. 23, 2007 (interviewing Marla Lawson who has “put 

hundreds behind prison bars”); Oliver Poole, ‘I Know What It’s Like to Want Justice,’ 

DAILY TELEGRAPH (London), Jan. 21, 2004, at 15 (interviewing Lois Gibson who held a 

place in the Guinness Book of Records as the world’s most successful forensic artist for 

helping “bring 947 people to justice, 26 of whom are on death row”); Sketchcop.com, 

SketchCop Solutions, http://www.sketchcop.com (last visited Mar. 16, 2009) 

(including forensic artist Michael Streed’s “Captured Gallery,” listing suspects who 

were arrested in part based on his sketches). 

137. See supra note 17 and accompanying text. 

138. See McQuiston-Surrett et al., supra note 77, at 512. McQuiston-Surrett 

and her coauthors speculate that the move away from forensic artists is due to the 

limited number of qualified artists, their high costs of employment, and the growing use 

of technology. Id. 

139. See Clifford & Davies, supra note 56, at 55 (suggesting that composite 

systems perform poorly because they are not used effectively, caused in part by a lack 

of training); McQuiston-Surrett et al., supra note 77, at 513 (showing that there are no 

standard training programs for officers to learn to use facial-composite systems 

effectively, and few law-enforcement agencies even have standardized procedures for 

interviewing witnesses, which can affect the accuracy of the witness’s recollection); 

Shepherd & Ellis, supra note 133, at 90–91 (“[T]he quality of a composite can be 

influenced by the skill and the experience of the operator.”).



better likenesses than novices. 140 Yet, some programs have no operating 

manuals, 141 and such systems are specifically designed to be operated 

by officers without formal training as artists. 142 Many officers operating 

these systems are unaware of information critical to a reliable sketch, 

such as how to interview a witness to avoid suggestion. 143 Even trained 

sketch artists are often unaware of the importance of proportion of 

features, which has a significant impact on the quality of the likeness. 144 

Beyond any lack of training or skill, many researchers now believe 

that such systems are inherently flawed because they focus on 

individual features, rather than the face as a whole. 145 This is contrary 

to the way humans perceive and encode memories of faces. 146 Studies 

show that humans remember faces holistically and not feature by 

feature. 147 By focusing on individual features, these systems, and even 

composites created by artists, force witnesses to recall memories in a 

manner wholly separate from how they are stored. 148 

Recent developments in technology and research have identified 

two solutions to the problem of unreliable composites. Two studies 

found that morphing (merging together) composites of multiple 

140. Graham Davies et al., Searching for Operator Skills in Face Composite 

Reproduction, 11 J. POLICE SCI. & ADMIN. 405, 407–08 (1983) (noting that composites 

produced by experienced operators performed 20 percent better than those produced by 

novices when judges matched composites to the photographs they were meant to 

represent). 

141. See Davies & Valentine, supra note 77, at 62, 69 (stating that Photo-FIT 

and Mac-a-Mug Pro have no manuals). To the contrary, E-FIT is marketed with 

explicit guidance on use. Id. at 70. 

142. See TAYLOR, supra note 17, at 138 (stressing the belief that anyone can 

use computer software products); Brown, supra note 27 (“The main advantage of 

FACES . . . is that absolutely no artistic skill is required . . . .”); Kuhn, supra note 103 

(“Local police don’t have to rely on an artist’s hand to catch criminals anymore—with a 

click of a mouse, they can produce a more realistic image . . . .”); Penserga, supra 

note 77 (“[H]uman sketch artists have yielded their craft to computer programs, 

allowing for more law enforcement officers to work up a composite quicker.”). 

143. See TAYLOR, supra note 17, at 160 (distinguishing the standard police 

interview from a cognitive interview, the appropriate choice for victims and 

eyewitnesses); McQuiston-Surrett et al., supra note 77, at 510 (noting that only 12 

percent of officers reporting used cognitive interviews designed to enhance witness 

memory). 


145. See Wells & Hasel, supra note 14, at 9 (“The dominant view in the 

research literature for over two decades has been that there is a mismatch between the 

task demands that are somewhat inherent in all composite systems and the way that 

faces are usually perceived and remembered.”). 

146. Id. 

147. Id. 

148. Id.



witnesses may lead to a more recognizable likeness. 149 However, the 

benefits of morphing may not apply to unfamiliar faces made from 

memory, 150 and morphed composites may resemble target faces more 

only because they more closely resemble the general category of faces 

from which the target is drawn. 151 Regardless, any benefits from this 

method are inherently limited as they would apply to cases in which 

there are multiple witnesses whose views of the perpetrator were 

sufficient to create a composite. 

A second solution is based not on improving old technology, but 

rather on a new technology that replaces feature-based-recall methods 

with a whole-face recall approach designed to capture the holistic 

processing of memories. 152 Systems employing this technology 

randomly generate faces on a computer screen and ask witnesses to 

select the face or faces that best resemble the images in their 

memories. 153 Based on the selection, the system “breeds” new faces, 

and the witness selects again. 154 With each successive generation, the 

faces become more similar to each other, and ideally to the culprit. 155 

Few studies have tested the claims of the new systems, but researchers 

remain hopeful that aligning the systems more closely with how humans 

process memories will result in superior results. 156 

Regardless of any improvements to composite production, the 

quality of any composite is always dependent on the witness’s ability to 

recall and verbalize the image of the culprit in his or her memory. 157 In 

the words of a long-time sketch artist, if one of his sketches is 

inaccurate, it is because “the witness has made an imperfect 

149. Vicki Bruce et al., Four Heads Are Better than One: Combining Face 

Composites Yields Improvements in Face Likeness, 87 J. APPLIED PSYCHOL. 894, 901 

(2002); Lisa E. Hasel & Gary L. Wells, Catching the Bad Guy: Morphing Composite 

Faces Helps, 31 LAW & HUM. BEHAV. 193, 205 (2007). 

150. See Bruce et al., supra note 149, at 899–901. 

151. Hasel & Wells, supra note 149, at 196. For example, consider a white 

male in his fifties with blond hair who committed a crime and was seen by four 

eyewitnesses. Morphing the composites of all the eyewitnesses may better resemble the 

culprit than the individual composites. However, it may also better resemble most white 

males in their fifties with blond hair because the morph has moved the image closer to 

the average or central tendencies of that category of people. Id. 

152. See Davies & Valentine, supra note 77, at 72–77. 

153. Wells & Hasel, supra note 14, at 9; Roth, supra note 114. 




157. See Woocher, supra note 35, at 985–86; MacDonald, supra note 77 (“The 

most important part of the process . . . is getting a good description from the 

witness.”); Penserga, supra note 77 (“[H]ow accurate a drawing is depends on how 

accurate the victims are . . . .”).



observation.” 158 Some witnesses may not have enough visual 

information to produce a reliable likeness, yet social pressures may 

result in the witness attempting to build a composite anyway. 159 Police 

may overlook a witness’s sketchy memory because of pressure to solve 

the crime. 160 Similarly, witnesses may believe they saw details they did 

not because of pressure to be helpful to the investigation. 161 Further, 

regardless of social influences, all memories are subject to 

contamination by information acquired after the event. 162 All of these 

factors combined indicate that any facial composite will deviate in some 

respects from the culprit, and in some cases significantly enough such 

that they are no longer useful tools for investigation. 

2. EFFECT OF FACIAL COMPOSITES ON SUBSEQUENT IDENTIFICATIONS 

Not only are facial composites poor indicators of the likeness of a 

culprit, they also have the potential to taint the memory of the 

eyewitness who helped to create the composite. Findings from recent 

studies show that the image of a composite either replaces or blends 

with the original image in the memory of the eyewitness. 163 This has an 

effect on a witness’s ability to accurately identify the culprit in a later 

identification procedure, such as a lineup. 164 

Memories, like physical trace evidence, can be tainted or decay 

over time. 165 Retrieval of memories is influenced not only by the 

158. Christgau, supra note 82, at 42. 

159. See Clifford & Davies, supra note 56, at 66–67; Woocher, supra note 35, 

at 988–89. 

160. See Findley & Scott, supra note 17, at 322–27 (describing institutional 

pressures on police to solve cases quickly). Forensic artists often express an emotional 

connection to their work and strong desire to help catch culprits; this may affect their 

ability to impartially evaluate the quality of a witness’s description. See TAYLOR, supra 

note 17, at Preface (“One image can literally be responsible for the recovery of a 

precious stolen child, stopping a serial rapist or murderer, or providing closure for the 

family who has lost a loved one to homicide.”); Lori Consalvo, Sketching Out ‘Evil,’ 

INLAND VALLEY DAILY BULL. (Ont., Can.), Aug. 17, 2008 (describing an artist who 

carries around the sketch he made of a man wanted for sexually assaulting and killing 

several people, explaining that “[i]f I really want to remind myself why I do this, I need 

to have an image of evil”); Poole, supra note 136 (describing one artist who is reduced 

to occasional tears when discussing the cases she has helped solve). 

161. See Woocher, supra note 35, at 981. 

162. See David F. Hall et al., Postevent Information and Changes in 

Recollection for a Natural Event, in EYEWITNESS TESTIMONY: PSYCHOLOGICAL 

PERSPECTIVES 124, 126–27 (Gary L. Wells & Elizabeth F. Loftus eds., 1984); Loftus et 

al., supra note 38, at 28. 

163. See Wells et al., supra note 76, at 148–49, 154–55. 

164. Id. 

165. See supra text accompanying notes 37–46.



original event, but also by information acquired after the event. 166 

Several studies demonstrate that exposure to misleading information, 

whether written or visual, affects both subsequent recall (describing an 

event) and recognition (identifying a visual representation of the event). 

In one study, exposure to misleading information after viewing a series 

of images caused 80 percent of the participants to later identify the 

images containing the misleading information as the images they had 

seen prior, instead of the images they had actually viewed. 167 Another 

study showed that exposure to written descriptions of a suspect affects 

witnesses’ subsequent verbal descriptions, selection of features when 

producing a composite, and selection in a lineup. 168 This finding was 

later expanded to include the effect of misleading visual images. 169 

After viewing a suspect, between 27 and 86 percent of the participants 

shown misleading composites of a person with a moustache or curly 

hair later erroneously recalled the suspect as having either a moustache 

or curly hair. 170 Additionally, 40 percent of these people aggravated the 

mistake by erroneously selecting individuals in a lineup who matched 

the misleading composites, even when the suspect was present. 171 

Exposure to misleading information is not necessary to taint a 

witness’s memory. Studies have found that the mere process of 

producing a composite sketch can impair subsequent identifications, 

whether or not there is a specific feature that was misleading. 172 A 2005 

166. See note 162 and accompanying text. 

167. Elizabeth F. Loftus et al., Semantic Integration of Verbal Information into 

a Visual Memory, 4 J. EXPERIMENTAL PSYCHOL.: HUM. LEARNING & MEMORY 19, 23– 

24 (1978). 

168. Elizabeth F. Loftus & Edith Greene, Warning: Even Memory for Faces 

May Be Contagious, 4 LAW & HUM. BEHAV. 323, 332–34 (1980). 

169. Felicity Jenkins & Graham Davies, Contamination of Facial Memory 

Through Exposure to Misleading Composite Pictures, 70 J. APPLIED PSYCHOL. 164, 

173–75 (1985). 

170. Id. at 172. 

171. Id. The study also showed that the subjects shown the misleading 

composites were just as confident as those who were not, confirming other findings that 

eyewitnesses are generally unaware of suggestive influences on their memories. Id. at 

173. 

172. See Sara Elizabeth Comish, Recognition of Facial Stimuli Following an 

Intervening Task Involving the Identi-kit, 72 J. APPLIED PSYCHOL. 488, 490–91 (1987). 

But see Michael A. Mauldin & Kenneth R. Laughery, Composite Production Effects on 

Subsequent Facial Recognition, 66 J. APPLIED PSYCHOL. 351, 355 (1981) (“When 

subjects produce an Identi-kit composite of a target face, they are more likely to 

recognize the target face in a subsequent recognition task . . . .”); Caroline J. Yu & R. 

Edward Geiselman, Effects of Constructing Identi-Kit Composites on Photospread 

Identification Performance, 20 CRIM. JUST. & BEHAV. 280, 288–89 (1993) (“[B]uilding 

an Identi-kit composite does not necessarily interfere with an eyewitness’[s] later 

suspect identification performance . . . .”).



study by psychologist Gary Wells found that producing a composite 

significantly reduces the chances that a witness will later identify the 

real culprit from a lineup. 173 One explanation for this finding is that 

verbalizing a description of a culprit, as is required by a witness when 

creating a composite, may actually contaminate the witness’s memory 

of the culprit. 174 Another possibility is that making a composite creates 

a blended or additional memory of an image that does not resemble the 

real culprit, thus affecting a witness’s memory at a subsequent lineup. 175 

Following from this hypothesis, “If an innocent person . . . becomes a 

suspect because of resemblance to [a] composite built by an eyewitness, 

and thus ends up being placed in a lineup, then the innocent suspect 

could very well match the ‘new,’ memory of the eyewitness and be at 

high risk of mistaken identification.” 176 Thus, a suspect who resembles 

a composite is more likely to be identified by a witness who created the 

facial composite, regardless of guilt or innocence. The concerns with 

facial composites and their potential effects on subsequent 

identifications are even more important because of the inherent risk of 

misidentification for innocent suspects placed in a lineup. 

173. Wells et al., supra note 76, at 154–55. Note that this study is limited to 

composites created by mechanical and computerized systems, and not those created by 

sketch artists. Id. at 148. Wells has suggested that the Mauldin & Laughery and Yu & 

Geiselman studies, supra note 172, that found contradicting results were outliers due to 

an unusual method of experimentation and lack of statistical significance, respectively. 

Id. at 148. Another researcher suggested that the effect of producing a composite on 

subsequent lineups may depend on the quality of the composite; better likenesses will 

lead to more accurate identifications, and poorer likenesses will lead to less accurate 

identifications. See Clifford & Davies, supra note 56, at 58. However, since most 

methods of building a composite create poor likenesses of the faces they are supposed 

to resemble, see supra Part II.B.1, this theory suggests that identifications following the 

creation of composites are more likely to be inaccurate. 

174. See Chad S. Dodson et al., The Verbal Overshadowing Effect: Why 

Descriptions Impair Face Recognition, 25 MEMORY & COGNITION 129, 136–37 (1997). 

This phenomenon, called “verbal overshadowing,” has been confirmed in several 

studies. See Wells et al., supra note 76, at 148. 

175. See Wells et al., supra note 76, at 148. 

176. Id. at 154. This hypothesis is supported by research showing that a person 

is more likely to be selected in a lineup if the witness had previously viewed a 

photograph of that person, regardless of guilt or innocence. See PATRICK M. WALL, 

EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES 47–48 (1965); Evan Brown et al., 

Memory for Faces and the Circumstances of the Encounter, 62 J. APPLIED PSYCHOL. 

311, 317 (1977); Gabriel W. Gorenstein & Phoebe C. Ellsworth, Effect of Choosing an 

Incorrect Photograph on a Later Identification by an Eyewitness, 65 J. APPLIED 

PSYCHOL. 616, 620–22 (1980).



C. Increased Risk of Misidentification 

Although some law-enforcement agencies have responded to 

Brathwaite and the concerns of social scientists by implementing new 

reforms to improve lineup procedures, 177 these protections are not 

sufficient to protect defendants against the risk of misidentification. 178 

Facial composites are the first step in the two-step process of 

eyewitness investigations. 179 To fully protect defendants against the 

inherent risks of being placed in a lineup, the application of Brathwaite 

needs to be stretched backward toward the beginning of the lawenforcement 

timeline. 

Being placed in a lineup exposes suspects to inherent jeopardy. 180 

Since most lineups or photo arrays include six people, the probability 

that any one person will be chosen is about 17 percent. 181 Many people 

have been convicted on evidence based on little more than an 

eyewitness identification. 182 Additionally, because of the tendency of all 

actors in the criminal justice system (law enforcement, prosecutors, 

defense lawyers, judges) to engage in tunnel vision, a process by which 

they seek out confirming evidence and ignore disconfirming evidence, 

an eyewitness identification from a lineup can be especially hazardous 

to an innocent suspect. 183 Because facial composites are unreliable in 

accurately depicting the true culprit, and because they often taint the 

memory of the eyewitness, subjecting a suspect who resembles a facial 

composite to a lineup increases the risk of misidentification. 

According to Wells, there is evidence that “mistaken eyewitness 

identification rates are directly tied to the odds that the lineup contains 

177. See supra note 47. 

178. This risk exists even for innocent suspects, as studies show that some 

eyewitnesses who would have accurately identified the true culprit if he or she was in a 

lineup would still identify an innocent suspect if the true culprit was not in the lineup. 

See Wells, Systemic Reforms, supra note 47, at 618–19. 

179. The first step is using facial composites to gather suspects; the second step 

is placing those suspects in lineups to be identified. 

180. Id. at 635. 

181. This is assuming that all participants in the lineup have an equal chance of 

being chosen, the protocol for an ideal lineup. Ideally, an eyewitness who did not 

accurately perceive and retain an image of the culprit would be unable to distinguish 

any of the participants from one another, and at a minimum the probability that any 

participant will be chosen, including an innocent suspect, is at chance levels. This also 

assumes that the eyewitness will select someone in the lineup, instead of choosing no 

one. The probability that the culprit will be selected increases if there is an eyewitness 

who accurately perceived and retained an image of the culprit. 

182. See, e.g., WALL, supra note 176, at 19–23; Innocenceproject.org, Know 

the Cases: Browse the Profiles, http://www.innocenceproject.org/know/Browse- 

Profiles.php (last visited Mar. 16, 2009). 

183. Findley & Scott, supra note 29, at 292–93.



the actual culprit in question.” 184 For example, if there is only a 30 

percent chance that a suspect placed in a lineup is the actual culprit, the 

chance of misidentification is more than 20 percent. 185 Thus, placing a 

suspect in a lineup based on a mere hunch results in a relatively high 

risk of misidentification. This fact emphasizes the need to provide 

protections to suspects before the lineup occurs. The holding in 

Brathwaite—based on due-process concerns—demands basic fairness in 

lineups. 186 Given the risk that an eyewitness’s accuracy will be 

influenced by inaccurate composites, and the need to apply protections 

before a lineup occurs, Brathwaite should be applied to facial 

composites. 

III. GUIDELINES FOR THE USE OF FACIAL COMPOSITES TO MINIMIZE 

SUGGESTIVENESS IN SUBSEQUENT IDENTIFICATIONS 

The Supreme Court’s attempt in Brathwaite to establish 

preventative rules to reduce the dangers of mistaken eyewitness 

identifications has fallen short of its noble intentions. Admittedly, the 

decision did spur research into the reliability of existing identification 

procedures and the creation of new procedures. 187 In turn, this research 

has prompted some legislative bodies and law-enforcement agencies to 

develop guidelines and best practices to improve identification 

procedures. 188 Although these efforts have helped to eliminate the most 

egregious practices (including, as one researcher notes, “legendary 

lineups of six nuns and a suspect”), 189 questionable identifications are 

still being offered to juries as strong evidence of guilt. 190 

The protections offered in Brathwaite, along with traditional 

methods of cross-examination and the increasing use of expert 

testimony, are not sufficient to protect defendants from the dangers of 

eyewitness identifications when facial composites are involved. As 

stated by the Supreme Court, “It is the likelihood of misidentification 

which violates a defendant’s right to due process . . . .” 191 The current 

unfettered use of facial composites in criminal investigations serves to 

subject suspects to substantial risks of misidentification. Procedures 

184. Wells, Systemic Reforms, supra note 47, at 636. 

185. Id. at 638–39. This is based on an overall 95 percent accuracy rate for 

eyewitnesses. Id. 

186. See 432 U.S. 98, 113 (1977). 

187. See Doyle, supra note 54, at 137–38. 


189. Doyle, supra note 54, at 138. 

190. Id. 

191. Neil v. Biggers, 409 U.S. 188, 198 (1972).



involving facial composites should be equally subject to the standard in 

Brathwaite as lineups, such that identifications stemming from 

sufficiently suggestive facial-composite procedures should be excluded 

from use in court. 

The following are proposed guidelines for the use of facial 

composites in criminal investigations to reduce the risk of 

misidentifications resulting in wrongful convictions and therefore 

satisfy due-process concerns. These guidelines are meant to be a 

starting point for discussion among various professionals in the criminal 

justice system. First, facial composites should be used by police as 

investigative tools of last resort to minimize the risk of casting 

suspicion on an innocent person. Second, if there are two or more 

eyewitnesses to a crime, the tasks of producing a composite and 

viewing a lineup should be separated to protect the integrity of resulting 

identifications. Lastly, if a facial composite is created, a reasonablesuspicion 

standard should be required to place anyone who resembles 

the composite in a lineup; evidence other than a likeness to the 

composite should be required to meet this standard. Using all three 

guidelines in conjunction with each other should increase the reliability 

of identifications, while minimizing the impact on law enforcement’s 

ability to effectively investigate crimes and avoiding the risk of 

excluding reliable evidence at trial. 

A. Tool of Last Resort 

Since facial composites may taint the memory of eyewitnesses, the 

first guideline proposes that composites be an investigative tool of last 

resort, produced only when necessary for the criminal investigation. To 

determine whether a particular procedure is sufficiently suggestive, 

courts look to whether the procedure was suggestive such that it 

increased the likelihood of misidentification and whether the procedure 

was necessary. 192 Social-science research has already found that all 

current methods of producing facial composites are suggestive. 193 The 

combined factors of unreliability in depicting an accurate likeness of the 

culprit, and the potential to taint a witness’s memory, unfairly increase 

the risk of misidentifications when composites are used in an 

192. See Biggers, 409 U.S. at 198 (“Suggestive confrontations are disapproved 

because they increase the likelihood of misidentification, and unnecessarily suggestive 

ones are condemned for the further reason that the increased chance of misidentification 

is gratuitous.”) (emphasis added); Stovall v. Denno, 388 U.S. 293, 301–02 (1967) 

(holding that, although a show-up in a hospital was suggestive, it was necessary 

because the victim was the sole eyewitness and no one knew how long she might live). 

For a discussion of the unnecessary, see supra note 21. 

193. See supra Part II.B.



investigation. Under Brathwaite, the question for courts would then be 

whether, given the suggestive use of a facial composite, the 

identification was nonetheless reliable. 194 

To comply with this guideline, law enforcement should follow all 

avenues of investigation before producing a facial composite. Police 

should interview all eyewitnesses to gather information about the 

suspect. Verbal witness descriptions obtained in the interviews can then 

be distributed to law enforcement and the public to generate additional 

leads. 195 All physical evidence should be gathered and analyzed to 

acquire further information about the identity of the culprit. Only when 

all other leads have been exhausted should building a facial composite 

become necessary. 

Although a victim’s memory will decay while waiting to produce a 

facial composite, it is unlikely that waiting a few days, or even weeks, 

will significantly decrease the accuracy of the composite. Most facial 

composites are not produced immediately after a crime, 196 when the 

witness’s memory is the most accurate. 197 Research shows that the 

greatest memory loss occurs within the first hour, continues over the 

next nine hours, and then levels off. 198 Any loss of memory created by 

waiting to produce a facial composite is minimal at best, and 

outweighed by the inherent suggestiveness of composites. 

In Bloodsworth’s case, the police rushed to create a facial 

composite that could be distributed to the public. 199 Once police 

received a tip that Bloodsworth resembled the sketch, and discovered 

that he had a questionable alibi, tunnel vision set in and the police 

ignored other leads, including one about a man suspected of child 

194. 432 U.S. 98, 114 (1977). 

195. Although giving verbal descriptions may affect an eyewitness’s ability to 

subsequently accurately identify a suspect, supra note 172, they have not been found to 

be suggestive in the same ways as facial composites. Even if they were, it would not be 

realistic to prohibit law enforcement from asking eyewitnesses to describe culprits. 

Moreover, one study found that verbal descriptions are more accurate than facial 

composites in describing the likeness of a suspect. See Ellis et al., supra note 113, at 

34–35. 

196. See Roth, supra note 114 (noting that a witness waits anywhere from a 

few days to a week before preparing a composite). 

197. Woocher, supra note 35, at 982 (stating that the memory of visual images 

begins to decay within minutes of the event). 

198. See HERMANN EBBINGHAUS, MEMORY: A CONTRIBUTION TO 

EXPERIMENTAL PSYCHOLOGY 62–80 (Henry A. Ruger & Clara E. Bussenius trans., 

1964). 

199. JUNKIN, supra note 1, at 46–47. The composite sketch was created the 

same day as the crime, and it was distributed to the public through local newspapers 

and television news channels two days later. See id. at 34, 40, 47.



sexual assaults in a nearby town. 200 That man turned out to be Ruffner, 

the real culprit. 201 If the police had waited to produce the composite and 

fully investigated other leads, they likely would have discovered 

Ruffner, saving Bloodsworth from years of wrongful imprisonment. 

B. Separating Identification Procedures Among Witnesses 

A second guideline for reducing the risks of misidentification when 

facial composites are used applies only when there are two or more 

eyewitnesses to a crime. If it becomes necessary to create a facial 

composite, an eyewitness who helps build a facial composite should not 

be involved in subsequent identification procedures. Rather, suspects 

gathered through the use of a facial composite should be identified by a 

different witness. Because research shows that facial composites taint 

the memories of eyewitnesses, 202 removing the first witness from the 

process would remove the element of suggestiveness caused by the use 

of a facial composite. If the second witness, who did not help create the 

facial composite, is then able to positively identify a suspect, this would 

serve as an untainted identification. 

An eyewitness who has participated in an identification procedure, 

such as a lineup, is often considered “spent,” such that he or she is not 

reliable enough to be used in a subsequent identification. 203 Extending 

this definition to include building a facial composite as an identification 

procedure, any witness who helps to build a composite should similarly 

be considered “spent” and not allowed to participate in a subsequent 

lineup. An identification of a suspect in a lineup by a witness who did 

not build a composite is more reliable, and thus less suggestive. This 

guideline is most useful if the witness at the lineup has not viewed the 

composite. This might be difficult if the composite is distributed to the 

public. This guideline is also limited to crimes with multiple 

eyewitnesses, both of whom had an opportunity to view the culprit, 

which may exist in only a few cases. 

C. Reasonable-Suspicion Requirement 

Lastly, if it becomes necessary to create a facial composite of the 

culprit because there are too few leads or other leads have been 

exhausted, and there is only one eyewitness, the risk of mistaken 

200. Id. at 53. 

201. Id. at 277–78. 

202. See supra Part II.B.2. 

203. See Wells, Systemic Reforms, supra note 47, at 640; see also OFFICE OF 

THE ATTORNEY GEN., supra note 48, at 6.



identifications can still be reduced by requiring reasonable suspicion to 

place a suspect in a lineup. 204 Wells recently proposed this requirement 

as one of seven recommendations to improve the reliability of 

eyewitness identifications. 205 This guideline proposes that reasonable 

suspicion should be independent from a resemblance to a facial 

composite. 

Wells defines reasonable suspicion as a reasonable belief that the 

suspect is the culprit. 206 While some law-enforcement agencies wait to 

place suspects in lineups until they have enough evidence to believe 

they are likely the culprit, other agencies place suspects in lineups 

merely based on a hunch. 207 Often, this hunch is based on a belief by a 

police officer or member of the public that the suspect resembles the 

composite sketch. 208 Because of the inherent risk of being placed in a 

lineup, “a policy that permits individuals to be placed in lineups on 

mere hunches or wild guesses could very well yield a high rate of 

mistaken identifications.” 209 Therefore, a reasonable belief that a 

suspect is the culprit should be based on evidence independent from a 

composite that corroborates the suspicion that the suspect is the actual 

culprit. 

Recent federal guidelines from the U.S. Department of Justice 

recommend that resemblance to a composite should not rise to the level 

of probable cause. 210 The federal guidelines emphasize that the purpose 

of composites is to develop investigative leads, and should not be used 

as stand-alone evidence. 211 Yet, most states are silent on this issue. 

Although most law-enforcement agencies agree in theory that the 

purpose of a composite is only to develop leads, in practice tunnel 

vision often interferes with this policy. 212 A composite that highly 

resembles a suspect may encourage police to seek evidence that 

corroborates their beliefs and ignore evidence that does not, again 

204. A standard lineup includes six people, only one of whom is a suspect. 

Wells, Systemic Reforms, supra note 47, at 617. The reasonable-suspicion requirement 

only applies to the suspect. See id. at 635–36. If there is more than one suspect, they 

should be in separate lineups, each requiring reasonable suspicion. 


206. Id. 

207. Id. at 637. 

208. Steven Avery, for example, was placed in a lineup merely because a 

police officer believed he resembled a facial composite produced by the victim. Findley 

& Scott, supra note 17, at 300. 


210. See NAT’L INST. OF JUSTICE, U.S. DEP’T OF JUSTICE, EYEWITNESS 

EVIDENCE: A GUIDE FOR LAW ENFORCEMENT 18 (1999). 

211. Id. 

212. See supra note 29 and accompanying text (explaining tunnel vision).



highlighting the dangers of using facial composites in any criminal 

investigation. 213 

D. Implementation of the Guidelines 

There is a variety of ways how these guidelines could be 

implemented and enforced. First, following in the same vein as 

Brathwaite, the courts could require that identifications stemming in 

part from a composite would be subject to the Due Process Clause. If 

the use of the composite in the investigation violated due process, the 

evidence would not be admissible at trial. Failing to comply with the 

guidelines would be evidence that due process was violated. Although 

very few identifications are ever excluded from trial, 214 clearly 

establishing that composite procedures must comply with due process 

might serve to deter police from misusing composites out of fear that 

subsequent identifications would be excluded. 215 

The underlying purpose of applying Brathwaite to the use of facial 

composites, however, is ultimately to reduce the risks of 

misidentifications, and therefore the guidelines could be implemented 

without help of the courts. A second approach would be for lawenforcement 

agencies to voluntarily implement the guidelines. Many 

agencies already have extensive guidelines for other identification 

procedures, namely photo arrays, live lineups, and show-ups. 216 Adding 

similar guidelines for the use of composites would fit easily into already 

existing frameworks. Additionally, legislative bodies could mandate 

specific procedures, or at a minimum require law-enforcement agencies 

to adopt written policies regarding the use of composites, while offering 

concrete policies for consideration. 217 Evidence that an agency did not 

follow mandated procedures, or even its own policies, would be further 

213. Once Bloodsworth was identified to police as closely resembling the facial 

composite, officers largely ignored hundreds of other leads that had not yet been 

investigated. See JUNKIN, supra note 1, at 49, 57. Officers also relied heavily on a 

psychological profile of the offender that matched some aspects of Bloodsworth’s 

personality, despite warnings from the FBI that the profile was only to be used as a tool 

to narrow potential suspects. Id. at 71–75. 


215. See Manson v. Brathwaite, 432 U.S. 98, 112 (1977). 


217. Wisconsin, for example, now requires that law-enforcement agencies 

adopt written policies for eyewitness identifications, and in doing so consider model 

policies and polices of other jurisdictions. See WIS. STAT. § 175.50(2), (4) (2007–08). 

Although agencies are not required to adopt specific procedures, such as sequential 

lineups or double-blind administration, they must consider them. Id. § 175.50(5).



evidence for the jury that the procedures were unnecessarily suggestive 

and therefore violated due process. 

The exact method of implementing the guidelines is not important 

as long as they are carried out. Rulings from courts or statutes passed 

by legislatures are less useful without the consent of law-enforcement 

agencies. Law enforcement is more likely to implement the guidelines 

if it believes it can still achieve its goal of protecting communities by 

locking up dangerous criminals. Protecting defendants from wrongful 

convictions and protecting the public are not necessarily contrary to 

each other. After all, convicting the innocent means that the guilty are 

still roaming free. 

It is impossible to know exactly how many wrongful convictions 

are caused by facial composites. One of the reasons facial composites 

have not been the focus of more attention is that they, unlike 

identifications from lineups, are not generally offered at trial as proof 

of guilt. Even the Innocence Project, which tracks and records all 

exonerations based on DNA evidence and studies the causes of 

wrongful convictions, focuses more on evidence used at trial than 

procedures that classify suspects in the first place. 218 Continuing to 

study the causes of wrongful convictions, specifically focusing on the 

use of facial composites, will help cast light on the extent of the 

problem. 

CONCLUSION 

Kirk Bloodsworth spent nearly ten years in prison for a crime he 

did not commit. 219 Meanwhile, the real culprit, Kimberly Shay Ruffner, 

who was never investigated despite a tip to police, attempted to rape 

and stab another woman. 220 The police were so eager to arrest a suspect 

that their use of a composite and investigative work imprisoned an 

innocent man while a guilty man continued to commit crimes. If the 

police had followed the guidelines in this Comment, they would have 

been forced to investigate the tip on Ruffner, and probably would never 

have placed Bloodsworth in a lineup. It is likely that justice would have 

been achieved. 

218. Innocenceproject.org, Innocence Project – Home, http://www.innocence 

project.org (last visited Mar. 16, 2009) (proclaiming that the Innocence Project is 

“dedicated to exonerating wrongfully convicted people through DNA testing”). 

219. See JUNKIN, supra note 1, at 258, 269–70. 

220. Id. at 281. Ruffner was convicted for attempted rape and stabbing, and in 

2004, after a match between his DNA and the crime-scene evidence gathered in Dawn 

Hamilton’s case, pled guilty to murdering Dawn Hamilton in exchange for escaping the 

death penalty. Id. at 281–82.



The current protections against unreliable eyewitness evidence do 

not sufficiently protect against the dangers of mistaken identifications. 

These protections should be expanded by subjecting the use of facial 

composite procedures in criminal investigation to the standard in 

Brathwaite. Applying this standard would require several changes in the 

use of facial composites. Although researchers are working on 

producing composites that more accurately resemble the likeness of the 

target face, they are currently too unreliable, with studies showing hit 

rates at barely above chance. Additionally, there is some evidence that 

they taint the memory of eyewitnesses, thus reducing the reliability of 

later identifications. 

Although it is difficult to know for certain when eyewitness 

identifications are accurate, even if there is a conviction, recent DNA 

exonerations have highlighted the dangers in eyewitness identifications. 

Yet, the current lineup reforms being implemented across the country 

are not sufficient to protect defendants from misidentification. Lineup 

reforms provide protection at a point when defendants are already at 

unnecessary risk of misidentification. To truly provide defendants with 

fairness in identification procedures, the reforms need to reach back to 

the beginning of the criminal-investigation process, to the point at 

which leads are generated and suspects are identified by police. 

By using facial composites as a tool of last resort, utilizing 

multiple witnesses at different points in the identification process, and 

requiring reasonable suspicion independent of a resemblance to a facial 

composite to place a suspect in a lineup, the inherent suggestion of 

facial composites can be reduced. These guidelines will provide more 

protection to the innocent without risking the chance that the guilty will 

go free, which is ultimately the goal of our criminal justice system.

comment sketchy eyewitness-identification ... - UW Law School

Create successful ePaper yourself

Delete template?

Save as template?