After 'Misidentification' and 'Admitting a Mistake'—On the Establishment and Implementation of the 'Identification System'

“Suggestion is closely linked to misidentification, because converting misleading things into false memories inevitably leads to a mix-up.” Daniel L. Schacter, a professor of psychology at Harvard University, probably did not expect that this passage from his book The Seven Sins of Memory would find an exceptional footnote right here—the “This T'u is not that T'u” incident. This “misidentification” controversy allowed us to appreciate the ebb and flow of dramatic tension and witness once again the media power of “Tseng Ts'an kills.” However, before the fervor of the debate gradually subsides and the whole affair is tossed into the news incinerator to turn to ashes, perhaps we can calm down and ask: How can our society avoid repeating the mistakes of “erroneous identification”?

“Erroneous identification” leads to miscarriage of justice, and both domestic and foreign judicial history are replete with remarkable precedents. According to empirical studies in the United States, nearly 50% of wrongful convictions are caused by eyewitness misidentifications. In recent times, wrongful criminal cases that have attracted public attention in Taiwan, such as the “Wolf of Tung-hai” and the “Taxi Wolf,” are also considerably related to flawed identifications. However, we clearly have not learned sufficient lessons from these mistakes. Referring to the regulations on criminal identification procedures in advanced countries such as Germany and the United States, for eyewitness identification of a “stranger,” one should first ascertain the degree of accuracy of the identifier's description of the witnessing process, understand the identifier's ability to describe the suspect's characteristics and the crime process, the duration and level of attention during the witnessing, and the time interval between the identification and the commission of the crime (known as the Biggers criteria). When collecting information on relevant suspects for witnesses to conduct identifications, the following principles must be strictly observed: “Single-suspect identification” is prohibited, meaning that witnesses must not be presented with only a “single” suspect's information (such as a photograph) for a “yes-or-no” type of identification; instead, information on “multiple” suspects matching the previously described characteristics should be provided to the witness for a “multiple-choice” type of identification; the identification data provided or the individuals arranged in a lineup must not have major discrepancies that contradict the previously described characteristics (for example, if the perpetrator was previously described as having a beard, only one bearded person should not be the sole exception); no inducement or suggestion can influence the identification beforehand, and the identifier must even be informed beforehand that the true criminal suspect may not necessarily be among the provided identification data or lineup; the data generated during the identification process must be completely presented and attached to the case records (such as the photograph of the identified person, audio and video recordings of the entire identification process, etc.).

In short, the judiciary, on the one hand, uses the aforementioned procedural requirements for identification “beforehand” to screen out misidentifications that may stem from distorted memories, thereby enhancing the accuracy of identifications and preventing identification errors; on the other hand, through judicial review “afterwards,” it denies the admissibility of eyewitness evidence obtained without following the aforementioned identification procedures, thereby strengthening the legal binding force of the identification procedure and ensuring that the court reviews only the initial identification (prohibiting repeated identifications) to eradicate memory pollution that may arise during the identification process and mislead judgment. Exercising institutional gatekeeping at every layer regarding the identification procedure and the admissibility of identification evidence is ultimately intended to guarantee the credibility of identifications through the control mechanism of “mandatory procedures.” In fact, our country's investigative regulations for police casework have similar requirements for identification procedures, but in practice they are rarely implemented. Instead, the crude practice of having witnesses make single-suspect identifications using “mugshot photos” remains recurring and commonplace, let alone filtering through the method of “lineup identification,” which is unheard of.

Reason and logic dictate that if even judicial agencies, which emphasize procedural justice, fail to achieve procedural control to prevent misidentifications, how can one demand that individuals without investigative powers be immune to identification errors? Yet, reflecting from another angle, how can a person devoid of compulsory investigative powers and unbound by identification procedure regulations be so confident as to recklessly publicize unverified facts to the public? Although Acting Director-General T'u suffered harm due to misidentification, both Li and Cheng have publicly “apologized” for their “misidentification.” Compared to defendants who suffer judicial miscarriages due to misidentification, Acting Director-General T'u is fortunate indeed, as society cleared his name early on, sparing him the exhaustion and torment of lingering litigation. Regardless of the future courtroom aftermath between the two parties, the authorities must take deep heed: unless the execution of the criminal identification system is strictly enforced, there is no guarantee that wrongful convictions caused by distorted identifications will not happen again.

&※ Published in: United Daily News