Eyewitness Identification: Witness, Offender, & Law Enforcement Attributes

Eyewitness Identification:Witness, Offender, & Law Enforcement Attributes Stephen J. Ross1, Roy S. Malpass2, & Kathryn M. Kase3 1Florida International University 2University of Texas at El Paso 3Texas Defender Service TCDLA 7th Annual Forensics Seminar (2009) Friday, October 23, 2009

What this seminar is about…. • Purpose • To provide you with information on how to evaluate case documents to assess likelihood of witness error • Will educate you on what to look for in case documents that may (and may not) be indicators of an increased likelihood of witness error. • Mere presence of any of these indicators does not mean that the witness is inaccurate • But the presence may increase the likelihood of inaccuracy.

Acquire as much as you can!! • First things first • Get all of the information you can • E.g., police reports, transcripts (911/hearings), surveillance tapes, composites, lineups, etc. • See Notes on Preparing to Attack Eyewitness Identification Evidence document provided. • Be thorough in your investigation in order to obtain as much information as possible. • Some information (e.g., non-identification) is often not reported/provided.

What to search the case materials for? • Witness attributes • Characteristics of the eyewitness that influence their memory & decision-making. • Environmental attributes • Aspects of the witnessing event that may influence the quality of the eyewitness’ memory. • Offender attributes • Characteristics of the perpetrator that may influence eyewitness’ memory. • Law enforcement attributes • General characteristics of law enforcement behavior that may be related to likelihood of eyewitness’ error. • Specific procedural issues will be discussed in Session #3.

Witness Attributes • Motives & values • The witness’ motives and values may influence their willingness to identify someone from a lineup. • Examination of the witness reports & interviews may assist with uncovering these motives/values. • Is the witness motivated to “help” law enforcement? • Witnesses who want to assist LEO’s may have a lower decision criterion • Leading to an increased likelihood of a false ID • May also look for “cues” from LEO to guide them to the “correct” decision • Is the witness motivated to “get the bad guy” and avenge the victim? • Witnesses that have a psychological need to find closure to the investigation may be more likely to make a false ID • Is the witness motivated to avoid making the wrong decision? • Witnesses that are apprehensive about possibly identifying an innocent individual may be more conservative with their decisions • Decreases the likelihood of a false ID

Witness Attributes • Attributes associated with eyewitness accuracy • Cognitive/perceptual abilities • Stress • Alcohol/Drugs • Age

Witness Attributes • Attributes associated with eyewitness accuracy • Cognitive/perceptual abilities • Individuals with cognitive and perceptual impairments are more likely to be inaccurate. • Cognitive impairments/Intellectual abilities • Those with lower intelligence are more susceptible to suggestive & misleading information. • Perceptual abilities • Any physiological deficits associated with perceiving events will decrease witness’ ability to encode information. • E.g., visual impairments

Witness Attributes • Attributes associated with eyewitness accuracy • Stress • Moderate levels of stress tend to enhance eyewitness memory. • Orients witness to the event and increases attention. • Severe stress decreases eyewitness accuracy. • More likely to provide inaccurate reports and to make false ID. • Decreases ability to encode information.

Witness Attributes • Attributes associated with eyewitness accuracy • Alcohol/drugs • Intoxication at the time of the event impairs memory ability. • Can decrease perceptual abilities. • Interferes with ability to store information. • Decreases ability to recall information at later time. • Increases likelihood of false ID.

Witness Attributes • Attributes associated with eyewitness accuracy • Age (children, elderly) • Memory ability is fairly stable across the lifespan. • Children (up to early teens): • More susceptible to suggestive questioning & misinformation. • More likely to make an ID, leading to increased likelihood of false ID. • Elderly (~60 and above): • More susceptible to suggestive questioning & misinformation. • More likely to make a false ID.

Witness Attributes • Attributes that ARE NOT associated with eyewitness accuracy • Occupation • Police officers are no more accurate than laypersons. • However, they tend to provide more useful descriptions. • Gender • Men & women do not differ in abilities. • Witness/victim status • Victims & bystanders do not differ in abilities. • Any difference between a victim & bystander is likely due to other aspects of the witnessing event. • E.g., increased stress, viewing distance, perpetrator-familiarity, etc.

Witness Attributes • Attributes that ARE NOT associated with eyewitness accuracy • Confidence • Confidence is a weak indicator of accuracy. • Confidence is easily manipulated by post-event information. (discussed more in Session #3)

Witness Attributes • Attributes that ARE NOT associated with eyewitness accuracy • Inconsistency across multiple reports • Inconsistent witnesses are not necessarily inaccurate witnesses. • Accuracy of individual statements. • Contradictory statements are not likely to be accurate. • Forgotten & reminiscent statements are just as accurate as consistent statements. • Overall accuracy of witnesses providing inconsistent statement(s) • Providing contradictory statements on one component does not indicate whether the witness is inaccurate on other components. • Contradictory statements tell us little or nothing about the accuracy of the rest of the witness’ testimony. • Making contradictory statements is not associated with ID errors.

Environmental Attributes • Visibility • Poor lighting & obscured view reduces ability to accurately remember witnessed event. • Viewing Distance • Further viewing distances reduce accuracy of witness reports and IDs. • Duration • Shorter events are associated with less accurate reports & IDs. • However, there is no optimal viewing length. • Decisions on whether duration may be associated with accuracy need to be made on a case-by-case basis. • You should rely upon confirmed estimates of these conditions. • Witnesses are generally unreliable in estimating duration, illumination, distance, etc. • And investigator feedback can influence these estimates after the fact. (more on this in Session #3)

Environmental Attributes • Weapon presence • Presence of a weapon during commission of a crime reduces accuracy of witness reports & IDs. • Although this is a rather “weak” effect on ID accuracy. • Has more significant influence on accuracy of witness reports. • This “weapon focus effect” is not associated with stress/anxiety. • Even though a witness may deny having been “scared” by the weapon, the weapon presence will still have likely reduced their memory for the perpetrator.

Offender Attributes • Disguise • Facial configuration is more important to accurate memory than any specific facial features. • Obscuring significant features disrupts ability to encode facial configuration resulting in decreased ability to identify the face later. • Disguises that obscure the upper regions of the face are most problematic. • Distinctiveness • Witnesses more likely to make false IDs when presented with “typical” faces. • However, “distinctive” faces are better remembered. • E.g., those with atypical features such as birthmarks, protruding chins, large noses, etc.

Offender Attributes • Familiarity • Witnesses that are familiar with the perpetrator are generally accurate. • Those that identify the perpetrator by name are rarely erroneous. • However, witnesses sometimes make errors when identifying “familiar strangers”. • E.g., a regular customer, someone from the neighborhood, etc. • Familiarity (like confidence) is also influenced by post-event procedures. (more on this in Session #3)

Offender Attributes • Race (& cross-race issues) • No ethnic group is more or less difficult to remember. • However, there is a “cross-race effect”. • Witnesses are less accurate when the perpetrator is of a different race. • Less likely to correctly ID the perpetrator when present. • More likely to falsely ID an innocent individual. • Just because a witness has a lot of “contact” with an other-race group, it does not mean that s/he is immune to the CRE.

Law Enforcement Attributes • Stage/purpose of ID procedure • The likelihood of a false ID may be influenced by the purpose of the ID procedure. • Investigator training • Quality of training and the investigators’ compliance with procedures may influence eyewitness IDs.

Law Enforcement Attributes • Stage/purpose of ID procedure • Questions regarding the validity of a positive ID should be evaluated in the context of what additional evidence linked the suspect to the crime at the time of the procedure. • Was the ID procedure “confirmatory” or “exploratory? • Did other evidence lead to the suspect’s nomination? • Or was the investigator following a hunch or taking a “shot in the dark”? • Positive IDs in the absence of other incriminating evidence may be less accurate.

Law Enforcement Attributes • Stage/purpose of ID procedure • A positive ID may have differential impact on the investigation depending on the stage/purpose of the procedure. • Positive ID in an “exploratory” procedure may lead to “tunnel vision” • Active search for further incriminating evidence against the suspect while ignoring exculpatory evidence and incriminating evidence against others. • May increase the likelihood that a mistaken ID will lead to arrest & prosecution.

National Institute of Justice Guidelines & Trainer’s Manual http://www.ncjrs.org/pdffiles1/nij/178240.pdf http://www.ncjrs.org/pdffiles1/nij/188678.pdf

Accessing Eyewitness Policies • Obtain copies of the law enforcement policy/procedure manual related to eyewitness identification and the construction/administration of ID procedures . • All jurisdictions should have these documents. • Policies should address the matters discussed in the “Guide” including: • Investigator training • Conducting witness interviews • Construction & administration of identification procedures • Documentation of eyewitness evidence

Investigator Training • Training on the conduct of these procedures should be given at the beginning of an officer’s career, and more intensive training provided to those officers who manage the identification process. • Both the first responder and the investigator should have received training in obtaining facial identification evidence from witnesses. • The person constructing the lineup should have training in lineup construction and administration.

Compliance with Policies • Evaluate case materials to determine whether policies were followed. • Contrasts between known law-enforcement policies and what was done in the case at hand should be interesting. • Empirical & anecdotal evidence suggests that investigators have difficulty following stipulated protocol for eyewitness procedures. • Also interesting are contrasts between the procedures claimed by the administering officer and those reported by the witness(es).

What if they don’t have these policies? • Truth is, many jurisdictions do not have formal policies/training on collecting eyewitness evidence. • Less than half of surveyed investigators report learning how to construct lineups from written recommendations/guidelines. • Nearly 75% stated they learned from interaction with other investigators in their station or precinct. • In these situations, the criticism for poor procedure must focus on the organization’s lack of formal training & protocol. • Becomes difficult to criticize investigator if s/he conducts improper/poor procedure, since s/he received no formal training. • With information about other jurisdictions and their policies, the absence of policy on eyewitness identification in your local jurisdiction should give you something to work with.

Contact Information Stephen J. Ross, Ph.D. Department of Psychology Florida International University 3000 NE 151st St. North Miami, FL 33181 Office: (305) 919-5864 Email: sross@fiu.edu http://www.fiu.edu/~ascl/

Eyewitness Identification: Witness, Offender, & Law Enforcement Attributes