State legislation would change police lineups

Since 1989, the state of Indiana has exonerated 50 people who were wrongfully accused of committing a felony crime. Of that number, more than one-third were wrongfully convicted in part due to mistaken eyewitness accounts.

Now, an Indiana Senate bill authored by Sen. Liz Brown, R-Fort Wayne, is aimed at making sure one witness’s mistake doesn’t cost another person their freedom.

“Senate Bill 141 would establish guidelines for how law enforcement conducts lineups, and this would lead to more accuracy and help us prevent wrongful convictions,” said Winne Ye, a state policy advocate for the Innocence Project, a national public policy organization dedicated to exonerating wrongfully incarcerated individuals.

Introduced to the Senate Committee on Corrections and Criminal Law in January, SB 141 would establish standardized eyewitness identification procedures within law enforcement departments across Indiana.

“There are no uniform procedures [in the state],” said Jimmy Gurulé, a former state and federal prosecutor and current professor and director of the Exoneration Justice Clinic at the University of Notre Dame Law School. “I would say not only from police department to police department, but maybe even within a particular police department, the procedures could vary.”

In 27 other states and at the U.S. Department of Justice, four standard practices are used, according to the Innocence Project. Those standards are endorsed by several organizations, including the National Academy of Sciences, the International Association of Chiefs of Police, the Department of Justice, and the American Bar Association, Ye said.

The original version of the Indiana legislation proposed implementing all four practices in the state for more consistent eyewitness identifications. But two of the standards were removed before the Senate approved the bill. Advocates are hopeful they can be restored as the bill is considered by the House.

One of the standards remaining in the bill would require law enforcement to select non-suspects for lineups that resemble the eyewitness’s description of the suspect, so the actual suspect does not unreasonably stand out.

The measure also would require police to document the eyewitness’s level of confidence in their selection immediately after the procedure is complete.

Removed from the legislation, however, is the requirement for double blind administration of a lineup. This means that neither the eyewitness nor the official leading the procedure knows who the suspect is.

Gurulé said this is one of the most crucial practices to eliminate bias.

“The police officer could say something through body language, facial expressions, or other gestures that could unduly, unfairly influence the identification and make it a wrongful identification,” he said.

Another core standard removed from the legislation would require officials conducting the lineup to tell the eyewitnesses in advance that the suspect may or may not be in the lineup, that they’re not required to identify a suspect, and that police will continue their investigation whether the eyewitness identifies a suspect or not.

This helps ensure eyewitnesses don’t feel pressured to choose just anyone as a suspect, Ye said.

Another protection included in the bill apart from the “core four” practices would ensure that a suspect cannot be included in a lineup if the only evidence connecting them to the crime is through a facial recognition technology match.

Mistaken identity

In the United States, 27% of exonerations involve mistaken witness identification, according to the National Registry
of Exonerations.

Research dating back to the 19th century shows that human memory retention steeply declines soon after witnessing an image, dropping from 100% retention to 60% within 20 minutes.

“[Eyewitness accuracy] depends on the distance they are from the crime scene, the level of stress they’re under, disabilities, if it’s dark at night, and then challenges making cross racial identification,” Ye said. “So these are all factors that we can’t control, but we know that the factors we can control are how law enforcement conduct lineups.”

Despite its inconsistencies, eyewitness accounts are frequently relied upon to help investigators identify suspects in a crime.

“Something people don’t know, too, is that oftentimes suspects don’t leave DNA behind, and so eyewitness identifications are a huge factor in investigations,” Ye said.

Leon Benson spent nearly 25 years in prison, 11 of them in solitary confinement, in part because an eyewitness misidentified him as the suspect after witnessing the murder of Kasey Schoen in 1998.

The murder took place around 3:30 a.m. The witness was loading newspapers into a vending box when she saw a black man standing at the passenger window of Schoen’s truck. Police showed the witness a photo lineup approximately six days after the shooting, and she identified Benson as the suspect.

Benson spent several years of his sentence studying the law to build a case for his innocence. In 2021, Marion County Prosecutor’s Office Conviction Integrity Unit was established and agreed to consider his case.

A reinvestigation found that dozens of notes from detectives who were investigating Schoen’s murder were not disclosed to Benson’s defense team. These notes contained information that could’ve put a different man behind bars.

Benson’s conviction was vacated in 2023.

Now on the other side of it, Benson has joined organizations such as the Innocence Project to help prevent others from enduring the same fate.

“The eyewitness in the case, the family of the wrongfully incarcerated, the victim’s family, the prosecutor, the cop. All these people walk away with shame and trauma, but we can prevent that,” he said.•