Eyewitness Identification Chief Bill Brooks, Norwood Police Department

1. Eyewitness IdentificationChief Bill Brooks, Norwood Police Department

2. 312 people have been exonerated through DNA. • In 36 states, 9 in Massachusetts. • 18 served time on Death Row. • Eyewitness misidentification played a role in over 75% of convictions overturned by DNA.

3. Contributing Causes of Wrongful Convictions

4. The History in Mass • 2004: Boston PD, & Suffolk, Norfolk & Middlesex DA’s • 2007: Detectives Basic Training • 2009: Comm. v. Silva-Santiago • 2011: Walker and the SJC Study Group • 2013: SJC Report released Legislation pending

5. The Other Impact • At least 133 resulted in convictions of the actual offender. • Those 133 have been CONVICTED of: • 76 rapes • 33 murders • 30 additional violent crimes homicides

6. Most DNA exonerations involve a sexual assault. Why? • Sex assault victims should make good eyewitnesses. • How many innocents are sitting in jail because there is no DNA in their case? (Robberies, thefts, etc.)

7. Out-of-Court Identifications • Show-ups • Field views • Photo arrays • Line-ups • Voice identifications

8. The Experiment The Crime Lineup 2 Lineup 1

9. What’s the worst potential outcome of your investigation? • You are unable to solve it? OR • An innocent man is convicted and imprisoned? • In which case, the real bad guy is still out there.

10. What can defense attorneys do to counter the possibility of a mistaken identification? • Motions to suppress. • Expert testimony about memory and false identifications. • Cautionary instructions from the judge • Often unsuccessful.

11. In-Court Identification • An in-court identification can be suppressed if procedures used by the police are too suggestive. • Police may generally testify about out-of-court identifications.

12. Basketball Video How observant are you?

13. Viscog Videos These are your eyewitnesses! Witness 2 Witness 1

14. List the Differences

16. Stages of Memory • Encoding • Storage • Retrieval Recall vs. Recognition

17. What Variables Affect Eyewitness Identifications? • Estimator Variables • Beyond the control of the police. • System Variables • Controlled by the system (police). • Post-diction Variables • Not presumed to causally affect accuracy.

18. Estimator Variables • Lighting & Distance • Exposure Duration • More exposure, more accurate identification • Weapon Focus • Can diminishe with exposure duration

19. Estimator Variables (cont.) • Stress • Difficult to create in lab experiments • Military experiment – some captives exposed to high stress interrogation for 40 minutes had difficulty identifying the interrogator

20. Estimator Variables (cont.) • Disguise • Video of a robbery. • 45% could identify the robber later • Only 27% if he wore a knit hat during the robbery • Retention Interval • Lapse in time between crime and array.

21. Estimator Variables (cont.) • Witness Intoxication • One study showed that it had no significant effect in identifying the guilty subject • But witness intoxicated at time of crime was more likely to erroneously pick a filler in target-absent line-ups

22. Own Race Bias • Studies have shown • MAY be stronger among whites • Less so for FL convenience store clerks • May increase with longer retention interval • 49% of first 250 DNA exonerations were cross-racial

23. Part One

24. System Variables • More significant in cases where a witness’ memory is weak • 2 Types • Interview Techniques • Identification Procedures • Interviewing Witnesses • Train officers to separate witnesses! • Use Cognitive Interview

25. Dispatchers • Don’t repeat what other witnesses tell you. • Avoid asking leading questions • Did you see a red car? (bad) • Do you know how they left the area? (good) • “Please provide as many details as possible, but don’t guess.”

26. First Officers • Separate witnesses • Don't let them overhear each others’ descriptions • Block witnesses from hearing radio transmissions

27. Cognitive Interviews • Build rapport • “Are you comfortable? Is there anything I get for you before we begin?” • “I don’t know what happened, you hold all the information. Begin where you like and go at your own speed.” • “Please provide as many details as possible, but don’t guess.”

28. Encourage free, open-ended narration • “Close your eyes and place yourself back at the scene.” • Do NOT interrupt. • Allow for pauses. • If necessary ask “then what?” • Clarify with open-ended questions • “Do you know how he left?“

29. Avoid leading and yes/no questions • "Was the car red?" • Closing out the interview • Encourage the witness to avoid contact with the media or exposure to media accounts. • Instruct the witness to avoid discussing details of the incident with other potential witnesses. • Document with a written report. SOON!

30. Part Two

31. SJC Report: General Best Practices • Every PD must have a written policy. • Separate witnesses. • Avoid leading questions. • Get a description first. • Read to witnesses from cards and forms. • Report every identification attempt.

32. Identification Techniques • Research has shown that eyewitnesses fail to accurately identify the subject about 50% of the time. • 20% of the time they wrongly select a filler. • Studies show that juries respond more favorably when police use reform procedures.

33. Show-ups • One-on-one show-ups permitted • Soon after the crime (within 2 hours) • Even though suggestive • Efficient capture of the subject • OR, if innocent, let him be on his way. • Must still strive for nonsuggestiveness. • Don’t do anything that unnecessarily draws the witness’ attention to the subject.

34. Best Practices: Show-ups • Within 2 hours. • Prevent witness from overhearing. • Minimize suggestiveness • Never in a cell or rear of a cruiser • Turn suspect so cuffs don’t show • Composites, sketches & mug shots disfavored. • Avoid successive identification attempts.

36. Procedure • Transport witness to the subject (preferred), OR • Bring the subject back to the scene • Must have “reasonable suspicion” • May incite the crowd • May not be able to control multiple witnesses • You may taint the crime scene

37. Multiple Witnesses • Separate witnesses & instruct them not to discuss the incident with other witnesses. • If a positive identification is obtained from one witness, use other identification procedures (e.g., lineup, photo array) for remaining witnesses.

38. Making ID’s with DMV Photos • Don’t allow it! • Too suggestive. • It’s a photo array with one photo.

39. Rule 14 (Mass. Rules of Crim. Procedure) • Mandatory automatic discovery: • (viii) “A summary of identification procedures, and all statements made in the presence of or by an identifying witness that are relevant to the issue of identity or to the fairness or accuracy of the identification procedures.”

40. Visor Cards & Notebooks • Document the EXACT words: • The instructions you gave • What the witness said when making an ID • The witness’ answer about how certain she is

41. Procedure • Stop the cruiser prior to arrival. • Read the witness the instructions. • Ask if he/she has any questions. • It’s a show-up, not a drive-by! • Note the witness’ reaction. • Ask how certain he/she is. • Note the statement of certainty.

42. Postdiction Variable • Level of Certainty • There can be significant error rates, even with witnesses who are confident. • BUT, jurors attach great significance to a confident eyewitness. • Feedback to an eyewitness prior to documenting certainty will contaminate the confidence statement.

43. Response Latency • Witnesses who make accurate identifications tend to do so quickly • Automatic processing • 10-12 seconds 90% accurate • Deliberative processing • Slower than 12 seconds 50% accurate

45. Best Practices: Arrays & Line-ups • Use a current photo of the suspect. • Fillers should fit the offender description, not look like the suspect. • At least 5 fillers and only 1 suspect. • Blind administration required. • Must be shown sequentially. • No more than a second lap.

46. Arrays & Line-ups (cont.) • Statement of certainty. • Shuffle between witnesses. • Submit array instruction form with report. • Whenever practicable, video or audiotape a photo array or line-up.

47. Preparing a Photo Array • One suspect in each array. • New Massachusetts 5+1 rule • Select fillers who generally fit the witness' description • NOT who look like your suspect. • But suspect’s photo should not stand out. • Ensure the photo of the suspect resembles him as he looks today.

48. Use at least 5 fillers. (Most Mass. PD’s use 7) • Don’t use fillers shown in a previous array. • Number the back of each photo 1-8. • Consider placing suspects in different positions in each lineup if there is a time gap between showings to prevent witness collusion. • Mitigate unusual features.

49. The witness described the suspect as a black male with crossed eyes.