Nicholas Drews
89 Geo. Wash. L. Rev. 429
Eyewitness identification is a notoriously unreliable form of evidence in criminal trials, yet juries tend to accord significant weight to the testimony of eyewitnesses. This concern is at the forefront of modern efforts to reform eyewitness identification procedure and reduce the risk of misidentification and wrongful conviction. The U.S. Supreme Court has historically recognized limited constitutional protections against unnecessarily suggestive eyewitness identification procedures, such as the use of photo lineups where the suspect’s photo clearly stands out to the witness. This poses a challenge for law enforcement when a suspect has uniquely identifying physical characteristics, and similar filler photos are impractical or impossible to obtain. Law enforcement agencies increasingly rely on modern tools like image editing software to ensure uniformity across photo lineups. Many agencies now use image editing programs to add, edit, or remove identifying physical characteristics from a suspect’s photo. This can increase the risk of misidentification, particularly when the edits are made to better match a description of the culprit provided by a witness. Because existing law does not sufficiently regulate the use of image editing software in photo-based identification procedures, this Note proposes model language for state legislatures to adopt in a statute prohibiting the practice of making material edits to a suspect’s photo for use in eyewitness identification.
