Preventing Eyewitness Misidentification: Best Practices and Impact

1. Eyewitness IdentificationChief Bill Brooks, Norwood Police Department

2. 364 people have been exonerated through DNA. • In 37 states. • Eyewitness misidentification played a role in over 70% of convictions overturned by DNA. • And 25% of those had more than one identifying witness who ID’d the innocent suspect.

3. Other Impacts • In about 160, the DNA identified the true offender. • They have been CONVICTED of 152 violent crimes that occurred in the interim. • Over 80 rapes • Over 35 homicides • Over 35 other violent crimes

4. Victims are Victimized Twice “My testimony sent an innocent person to prison…. I absolutely wanted the earth to swallow me.” Penny Beerntsen, the Rape Victim from ‘Making of a Murderer case

5. Contributing Causes of Wrongful Convictions

6. Suppression of Identification • Defense has the burden of showing by a preponderance of evidence, • That police procedure was “so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny [him] due process of law”

7. If Judge Finds That it Was, • Prosecution must show by clear and convincing evidence, • That witness’ ability to identify suspect has an independent source.

8. Independent Source • Witness’ certainty • Opportunity to view the offender • Accuracy of description (prior to ID) • Suggestive influence of police procedure • Exposure duration • Whether the witness made previous mistakes

9. In-court Identifications • If the police did not conduct an out-of-court identification procedure prior to trial, • Or the results of the procedure were “less than unequivocal,” • The trial judge may prohibit the identifying witness from identifying the defendant during trial (Comm. v. Crayton, Comm. v. Collins)

10. The Experiment The Crime Lineup 2 Lineup 1

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

14. List the Differences

16. Stages of Episodic Memory • Encoding • Sensation • Attention • Perception • Storage • Retrieval (Recall & Recognition)

17. What Variables Affect Eyewitness Identifications? • Estimator Variables • Beyond the control of the police. • System Variables • Controlled by the system (police).

18. Estimator Variables • Lighting & Distance • Exposure Duration • More exposure, more accurate identification • Weapon Focus • Can diminish 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 • Own Age Bias

23. Part One

24. System Variables • 2 Types • Interview & Initial Contact Issues • Identification Procedures

25. Patrol • Separate witnesses • “Please provide details, but don’t guess.” • Don’t repeat what other witnesses tell you. • Avoid leading questions • Block radio transmissions

26. Cognitive Interviews • Establish rapport • “Are you comfortable?” • “I don’t know what happened, you do. Begin where you like and go at your own speed.” • You want free, open-ended narration

27. “Close your eyes and place yourself back at the scene.” • Do NOT interrupt. • Allow for pauses. • To prompt the witness, ask “then what?” • Clarify with open-ended questions • “Do you know how he left?“

28. Closing the Interview “Please avoid contact with the media or exposure to media accounts.” “Don’t discuss details of the incident with other witnesses.” “Don’t undertake your own investigation .”(Facebook, etc.) “From time to time I may need to show you photos.”

29. Part Two

30. Terminology • Show-ups • Field views • Photo arrays • Line-ups • Voice identifications • Offenders • Suspects

31. 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. • Composites, sketches & mug shots disfavored. • Avoid successive identification attempts.

32. Show-ups • Soon after the crime (w/in 2 hrs) • Thought to offset suggestiveness • Efficient capture of the subject • OR, if innocent, let him be on his way. • Must still strive to be non-suggestive. • Never in a cell or rear of a cruiser • Turn suspect so cuffs don’t show

33. Perhaps this is not a good time

34. Procedure • Transport witness to the subject (preferred), OR • Bring the subject back to the scene, BUT • You may incite the crowd • You might not be able to control multiple witnesses • You may taint the crime scene

35. Multiple Witnesses • Conduct separate show-ups. • If a positive identification is obtained from one witness, use other identification procedures (e.g., lineup, photo array) for remaining witnesses.

36. 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.”

37. Show-up Instructions • You are going to be asked to view some people. • The person you saw may or may not be among the people you are about to view. • It is just as important to clear innocent persons from suspicion as it is to identify the guilty.

38. Regardless of whether you identify someone, we will continue to investigate. • If you identify someone, I will ask you to state, in your own words, how certain you are. • If you do select someone, please do not ask us questions about the person you have selected, because we cannot share that information with you at this time.

39. Regardless of whether you select a person, please do not discuss the procedure with any other witnesses in the case or the media. • Do you have any questions about the procedure before we begin?

40. 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. Inanimate Objects(Whether during show-up or not) • First present suspect as you found him. • Don’t ask him to wear items found nearby. • Then, an inanimate object may be presented. • An array is not required, but don’t be suggestive.

43. Document item description first. • This may or may not be the item you saw. • “Tell me how certain you are.” • Can you tell if this is the specific item or one that looks like it? • Video or audio record if practicable.

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

45. Showing A Single Photo • ONLY to confirm the identity of a known suspect. • Treat police witnesses same as other witnesses. • Undercover officers.

46. 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.

47. 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.

48. Assembling the Array • Fillers should it description of the offender • But none should stand out • If there’s no description of the offender, use the suspect’s appearance as a guide.

49. Backgrounds & photo types should match • Block out any mug shot markings. • Have another detective view the array to ensure that the suspect does not stand out. • Preserve the array as evidence.

50. Uriah Courtney (San Diego)