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Title IX & Student Conduct Code Blog

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Problems With Eyewitness Identification In School Investigations

In campus investigations regarding Title IX or other college conduct code violations, eyewitness testimony is often a key type of evidence collected.

People tend to give eyewitness accounts a significant amount of weight, especially if an eyewitness to a wrongdoing later identifies the accused as the person they saw committing the crime. This is problematic, however, as many eyewitness identifications are in themselves, highly problematic.

Many eyewitness identifications are unreliable and yet school investigators may present an eyewitness ID as an absolute and undeniable fact. If your case involves an eyewitness identification, you need a lawyer who knows how to defend against eyewitness identifications and challenge their credibility.

How Eyewitness Testimony is Used

If the victim or someone standing by witnessed someone commit a college policy or Title IX violation, investigators can seek an identification through a few different methods:

  • Lineup: In a lineup, the witness is shown multiple people including the suspect, from which the witness is asked to pick out who they recognize as commiting the crime.
  • Show-up: In a show-up, a witness is only shown the suspect and asked if the suspect is the one they saw commit the crime.

After an eyewitness identifies a suspect, that witness can later be called into a hearing to testify to their identification at trial. This can be a dramatic moment, but often the disciplinary board or judge does not adequately consider that the large majority of eyewitness identifications are inaccurate and can result in a false accusation and wrongful finding.

Stress of the Eyewitness During the Crime

The human brain is not a camera or video recorder, and it cannot record a memory exactly as it was. For this reason, the brain will often reconstruct memories without a person even realizing that the memory has been manipulated. High profile cases, such as the Michael Brown shooting investigation, indicate that different witnesses will often have divergent accounts as to what happened.

Accurately remembering a specific face is also particularly challenging for witnesses to crimes or crime victims for the following reasons:

  • Witnesses likely experience extreme anxiety and stress during the crime
  • If a weapon was used, a victim or witness will likely be primarily focused on the weapon and not on the face of the perpetrator
  • If the perpetrator and the witness of are different races, studies have shown “cross-racial” identification is less reliable than identifications made of the same race

Often, however, eyewitnesses honestly want to help school authorities catch the “bad guy.” Therefore, they can become overly confident in their ability to identify the offender they witnessed. This can lead them to identify a suspect even if they are not 100 percent sure of the identification. Whether this uncertain identification is subconscious or not, it can be dangerous for students accused of wrongdoing.

Improper Procedures by Investigators

In many cases, the problems with eyewitness identifications are only compounded by overly suggestive procedures used by investigators. First, a show-up is inherently suggestive, as the eyewitness sees only a single suspect singled out by investigators. This can lead them to associate the suspect with wrongdoing. Although show-ups are almost always overly suggestive, they can still be admitted as evidence.

In a lineup, whether in person or a series of photos, investigators are supposed to find others who are similar enough in appearance to the suspect, so that the suspect is not the obvious choice. Often, however, investigators simply find whoever is available without much regard for suggestiveness. In addition, if an investigator knows who the suspect is, they can – intentionally or not – subtly hint at the suspect to the witness and guide the identification. These are only some of many ways that eyewitness identification procedures can be overly suggestive.

Get Help From A College Conduct Code Violation Lawyer

An experienced attorney will know how to argue that an identification was so suggestive that it should be excluded. Your defense attorney should also always have extensive experience discrediting eyewitnesses who testify at trial. Thanks to the work of defense attorneys who are educating judges and schools about the dangers of unreliable eyewitness identifications, law enforcement agencies and school investigators have started to make positive changes. However, until eyewitness identification procedures and laws are reformed, those accused of wrongdoing must rely on their attorneys to fight against such evidence.

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.