Justice Department Announces Department-Wide Procedures for Eyewitness Identification

Deputy Attorney General Sally Q. Yates announced today that the Justice Department is issuing, for the first time, department-wide procedures on eyewitness identification, which will apply to agents at FBI, Drug Enforcement Administration (DEA), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the U.S. Marshals Service, and which will guide federal prosecutors when deciding whether to charge a case involving an eyewitness identification. The new procedures were outlined in a memo from Yates to the heads of the department’s law enforcement agencies. The procedures address the use of “photo arrays,” the most common methods used by law enforcement to determine whether a witness can identify the perpetrator of a crime, and are designed to ensure that law enforcement personnel do not suggest to a witness, even unintentionally, that they know which photograph contains the image of the suspect.

“Eyewitness identifications play an important role in our criminal justice system, and it’s important that we get them right,” said Deputy Attorney General Yates. “With today’s procedures, we’re taking one more step to ensure that law enforcement officers obtain the most reliable evidence possible during a criminal investigation and that all Americans can have confidence in the fairness of our criminal justice system.”

The memo issued today establishes a department-wide policy directing that, except in exceptional circumstances, agents should administer photo arrays using either “blind” procedures (where the administrator is not involved in the investigation and does not know what the suspect looks like) or “blinded” procedures (where the administrator takes steps to ensure he or she cannot see the order or arrangement of the photographs viewed by the witness). In addition, the new policy stresses the importance of documenting a witness’s self-reported confidence at the moment of the initial identification, reflecting a growing body of research that such confidence is often a more reliable predictor of eyewitness accuracy that a witness’s confidence at the time of trial. The department’s new procedures call on agents to document the identification either by video- or audio-recording the test, or by having the administrator transcribe the witness’s statement as close to verbatim as possible.

In the memorandum, Yates directed the heads of the department’s law enforcement agencies to update their internal policies to reflect the new guidance and called on all department prosecutors to review the procedures prior to making a decision about whether to charge a suspect who was identified in part through the use of a photo array, whether obtained by federal, state, or local law enforcement officers.