Eye Witness Identification

1. Eye Witness Identification Policy and Guidelines Chief James McLaughlin, Jr. (Ret) Texas Police Chiefs Association Phillip Lyons, Jr., J.D., Ph.D. Sam Houston State University June 5,2012

2. The Innocence Project reports out of 254 DNA exonerations 75% were misidentified by eye witness. Innocent by Trial (jury-error) Actual Innocence

3. There have been over 2000 studies of eye witness procedures and results in the last 30 years. Many of these are “laboratory” but a significant number were conducted in the field.

4. Studies have shown misidentification rates to be between 35-50% at times. “Memory does not function like a video tape but rather is a constructed, dynamic and selective process that can be distorted, contaminated, and even falsely imagined”.

5. Mason v BrathwaiteU. S. Supreme Court 1977 • Opportunity to view the criminal • Witness’s degree of attention • The accuracy of witness’s description of criminal • Level of certainty • The time between the crime and confrontation

6. Tillman v. StateTexas Court of Criminal Appeals 2011 • Home invasion • Murder • Several eyewitnesses • “Suggestive” photo line ups • Expert witness

7. Legislative History • 81st. Session (2009) • SB 117 & HB 3583 • TCLEOSE • HB 498 • Timothy Cole Advisory Committee on Wrongful Convictions • Texas Court of Criminal Appeals Criminal Justice Integrity Unit

8. House Bill 21582nd. Texas Legislature

9. Amends Chap. 33 of the Code of Criminal Procedure by adding Art. 38.20 • Photograph and Live Lineup Procedures—each LE agency shall adopt and implement and as necessary amend a detailed written policy regarding the administration of photograph and live lineup procedures

10. LE agencies may adopt the model policy developed by the Law Enforcement Management Institute of Texas (LEMIT) or • create their own as long as they properly address the following issues:

11. LE Agency policy must address • Selection of photographs • Instructions given to witness before conducting lineup • Documentation and preservation of the results of lineup, including witness statements

12. Procedures for administering the lineup to the illiterate and persons with limited English • In a live lineup, if practical, assign an administrator who is unaware of who the suspect is

13. For photo lineups, have procedures for assigning an administrator who is capable of administering a photo lineup in a blind manner, or • In a manner consistent with other proven or supported best practices, designed to prevent influencing the witness

14. LEMIT • In consultation with large, medium, and small LE agencies and LE associations, and with scientific experts in eyewitness memory research shall develop, adopt, and disseminate to all LE agencies a model policy and training materials.

15. LEMIT shall review the model policy and modify as necessary every two years • LEMIT must complete development of model policy by December 31, 2011 • Each agency must adopt appropriate policy by September 1, 2012

16. Perry v. New Hampshire • Decided January 11 2012 • Suspect committing BMVs • Officer asked eyewitness to describe suspect • She pointed out her kitchen window to a man in the parking lot • Perry said court should do a judicial review of reliability of eyewitness identification

17. Supreme Court held “no need for judicial inquiry into reliability of eyewitness ID if not procured under unnecessary suggestive circumstances arranged by law enforcement.” • “Due process concerns arise only when law enforcement use identification procedure that is both suggestive and unnecessary.”

18. Only when such conduct creates a substantial likelihood of misidentification is suppression of evidence required. • “Defendant must establish improper police conduct. “

19. POLICIES • LEMIT • Texas Police Chiefs Association • Texas Police Chiefs Association Foundation “Best Practices” • Houston • Dallas

20. Advice is like castor oil - easy enough to give but dreadfully uneasy to take • Josh Billings

21. Estimator variables: Variables affecting eyewitness reliability that are beyond the control of the justice system.

22. Estimator Variables • Eye witness stress level • Weapon focus effect • Cross-racial identification • Duration of the witnessed event • Distance and lighting • Memory decay

23. System variables: Variables that affect eye witness identification accuracy over which the justice system has control such as line-up procedures.

24. System variables • Line up administration • Instructions to witness • Construction of line-up array • Multiple identification procedures • Show up procedures • Feedback to witness • Pre identification stage setting

25. Accuracy Predicted Actual Sensitivity (low false negative) vs. specificity (low false positive)

26. Goal Improve the specificity of our techniques over existing ones to lower the rate of false positives, without unduly sacrificing sensitivity, that is, while maintaining our true positives.

27. Policy Development • Focus group at Sam Houston State University on 9-23-11 • Advocacy, Attorneys, Law Enforcement • Public Comment • Public Hearings in Austin on 12-1-11

28. Definitions • Blind Administration • Blinded Administration • Double Blind Administration • Witness/victim

29. Policy • Simultaneous vs. Sequential (decreases false positives by 33% with little, if any, sacrifice to true positives) • Blind vs. Blinded vs. Standard • Selection/placement of fillers and blanks

30. Policy • Instruct witness: • Suspect may or may not be present • Administrator does not know the identity of the suspect • Multiple Identification Procedures • Post identification feedback • Procedures for Persons with LEP

31. Policy Dissemination • LEMIT is delivering four training of trainers sessions, two of which have been completed already • Texas Police Chiefs Association is delivering seven trainings. • Judge Barbara Hervey of the Texas Court of Criminal Appeals provided financial assistance in the form of a grant to facilitate LEMIT’s implementation of this unfunded mandate.

32. Questions And maybe answers.