Eyewitness IdentificationChief Bill Brooks, Norwood Police Department

• 317 people have been exonerated through DNA.

• In 36 states, 9 in Massachusetts.

• Eyewitness misidentification played a role in over 75% of convictions overturned by DNA.

Contributing Causes of Wrongful Convictions

0 10 20 30 40 50 60 70 80

Eyewitness Misidenfication (73%)

Unvalidated or Improper Forensic Science (50%)

False Confessions (27%)

Informants (18%)

Average Prison Term 13.5 Yrs

18 on Death Row

64% are rapes

27% are rape/murders

7% are pure murders

2% are robberies

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

The Other Impact

• In 156, the DNA identified the true offender.

• They have been CONVICTED of 130 violent crimes that occurred in the interim.– 74 rapes– 33 homicides

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• 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.)

Out-of-Court Identifications

• Show-ups

• Field views

• Photo arrays

• Line-ups

• Voice identifications

The Experiment

The Crime

Lineup 1 Lineup 2

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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.

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.

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.

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”

If Judge Finds That it Was,

• Prosecution must show by clear and convincing evidence,

• That witness’ ability to identify suspect has an independent source.

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

Basketball Video

How observant are you?

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Viscog Videos

These are your eyewitnesses!

Witness 1 Witness 2

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List the Differences

Stages of Memory

1. Encoding

2. Storage

3. Retrieval

Recall vs. Recognition

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.

Estimator Variables

• Lighting & Distance

• Exposure Duration– More exposure, more accurate identification

• Weapon Focus– Can diminishe with exposure duration

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

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.

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

• 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 Race Bias

Part One

27

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

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.”

First Officers

• Separate witnesses

• Don't let them overhear each others’ descriptions

• Block witnesses from hearing radio transmissions

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.”

• 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?“

• 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!

Part Two

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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.

• Composites, sketches & mug shots disfavored.

• Avoid successive identification attempts.

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.

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.

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

Maybe Not a Good Time

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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

Multiple Witnesses

• Separate 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.

Making ID’s with DMV Photos

• Don’t allow it!

• Too suggestive.

• It’s a photo array with one photo.

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.”

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

1. You are going to be asked to view some people.

2. The person you saw may or may not be among the people you are about to view.

3. It is just as important to clear innocent persons from suspicion as it is to identify the guilty.

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4. Regardless of whether you identify someone, we will continue to investigate.

5. If you identify someone, I will ask you to state, in your own words, how certain you are.

6. 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.

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7. Regardless of whether you select a person, please do not discuss the procedure with any other witnesses in the case or the media.

8. Do you have any questions about the procedure before we begin?

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Procedure

1. Stop the cruiser prior to arrival.

2. Read the witness the instructions.

3. Ask if he/she has any questions.

4. It’s a show-up, not a drive-by!

5. Note the witness’ reaction.

6. Ask how certain he/she is.

7. Note the statement of certainty.

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.

• 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

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.

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.

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.

• 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.

• Place suspects in different positions in each lineup if there is a time gap between showings to prevent witness collusion.

• Mitigate unusual features.

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

• Block any writings or information concerning previous arrests.

• View the array to ensure that the suspect does not stand out. – Have another detective review it.

• Preserve the array in its original condition.

• If practicable, record it (Comm. V. Silva-Santiago)

Blind Administration

“Double Blind” - Use of a second officer

“Blinded”1. Folder Shuffle2. Computer software (PowerPoint)

• Clinical trials in medicine are administered blind.

• In every case where a prisoner was exonerated by DNA, the person selected by the witness was the suspect!

• In an experiment, when administrators were told who the suspect was, erroneous identifications AND confidence levels rose.

Blind Administration

• Protects the innocent from the influence of inadvertent cues from the detective.

• Might prevent the bad guy from going free.

• Takes away one defense strategy.

• Allows the ADA to show the jury that you adhere to modern reform standards.

Double-Blind

• Use a patrol officer who does not know who the suspect is.

• Primary AND patrol officer meet witness.

• Explain procedure and introduce officer.

• Read instructions and leave the room.

• Patrol officer shows array, records response and asks about certainty.

• Then calls primary into the room.

Folder Shuffle

• Each photo in a file folder

• Top folder contains a filler

• Two empty folders on the bottom

• Shuffle the middle 7

• Have witness open folders so that the cover blocks your view

• If second view is requested, shuffle all 10 in front of witness

Photo Array Instruction Form

1. You are being asked to view a set of photographs.

2. You will be viewing the photographs one at a time and in random order.

3. Please look at all of them. I am required to show you the entire series.

4. Please make a decision about each photograph before moving on to the next one.

5. The person you saw may or may not be in the set of photographs you are about to view.

6. You should remember that it is just as important to clear innocent persons from suspicion as to identify the guilty.

7. The officer showing the photographs does not know whether any of the people in the array are the person you saw.

8. The individuals in the photographs may not appear exactly as they did on the date of the incident because features such as head and facial hair are subject to change.

9. Regardless of whether or not you select a photograph, the police department will continue to investigate the incident.

10. If you select someone, the procedure requires the officer to ask you to state, in your own words, how certain you are.

11. If you do select a photograph(s), please do not ask the officer questions about the person you have selected, as no information can be shared with you at this stage of the investigation.

12. Regardless of whether you select a photograph(s), please do not discuss the procedure with any other witnesses in the case or the media.

13. Do you have any questions before we begin?

Sequential vs. Simultaneous

• Relative Judgment (simultaneous)

• Absolute Judgment (sequential)

• “research indicates that identification procedures produce more reliable evidence when the lineup participants or photographs are shown to the witness sequentially rather than simultaneously.”

None of Them

The Relative Judgment Process

Eyewitnesses tend to select the person who looks most like the perpetrator relative to the other members of the lineup.

From: Wells, The Psychology of Lineup Identifications (1984)

Relative Judgment

54%

No choice = 21%

From: What Do We Know About Eyewitness Identification? Wells, American Psychologist, 1993.

3% 3 %

13% 3% 3%

What happened?

3% 6%

3% 12%

13%

38%

3%

7%

3%

5%

No choice = 21% 32%

What is the problem?

The problem with the relative-judgment process is that some member will always look more like the perpetrator than the remaining members of the lineup; even when the actual perpetrator is not in the lineup.

Sequential vs. Simultaneous

• Relative Judgment (simultaneous)

• Absolute Judgment (sequential)

• Pick rates are close when the offender is in the array

• But error rates with sequential are much lower when he is not

Post-ID Statement of Certainty

• Ask witness how certain they are immediately after the identification.

• Without using a numerical scale.

• Obtain certainty prior to providing any information about the subject or case.

Those pesky questions:

• What if she stops the array and makes an ID part-way through?

– Ask her, “Without using a numeric scale, how certain are you?”

– Then, “Remember, I’m required to show you the entire series.”

• What if she wants to see the array again?

• Or asks to see one photo again?

“I can show you the entire array one more time.”

Witness Confidence

• Witness confidence on the stand often has little to do with accuracy of identification.

• Witness confidence tends to increase.

• But witness’ testimony about confidence is given great weight by juries.

Lineups (Live Arrays)

Why Do a Live Array?

• Captures the suspect as he looks today.

• Ability to look him in the eye.

• Witness may recognize mannerisms.

• Generally recognized as more reliable.

The Downsides

• Must have a cooperative subject,

• OR a court order to compel him.– Grand jury may order a line-up on reasonable

suspicion.

• Finding fillers can be challenging.

• Your suspect learns that you’re looking at him.

Preparation

• Location– Two entrances, out-of-sight from each other– Sufficient space for staging witnesses and

officers in one area, and participants in another

– Security if suspect is in custody– One-way glass?

Conducting a Live Array

• Involve the DA’s Office

• Video.

• Run procedures by his attorney.

• Instruct the participants.

• Use a B Team inside both rooms.

• Present participants sequentially.

• Line-ups have always been simultaneous.

• How would you do one using a sequential system to avoid relative judgment?

• Read the witness his/her instructions.

• After the line-up obtain a statement of certainty.

• Then advise the subject of the outcome.

• Make note of his reaction!

Voice Line-ups

• Recognizing voices can be difficult.• Tell witness the numbers have been

changed. (Comm. v. DeMaria, 1999)

• Do not allow the witness to view the participants as they speak.

• Words read by participants should not be those spoken during the crime. (Comm. v. Marini, 1978)

Composites & Sketches

• People remember faces, not features

• “Building a composite significantly lowered the accuracy for identifying the original face.” (Prof. Gary Wells)

Why Do Detectives Use Them?

• Belief they will produce leads.• Some witnesses expect them.• Drawbacks are largely unknown.• Pressure from the media (and the chief).

• Beware of a suspect selected from an array who is only included because he resembles the composite!

• Don’t attempt a composite unless the witness can offer a detailed description of the features of the subject’s face.

• Take a detailed description first.

• Don’t do one before showing an array.

• Stay away from those ski mask composites.

• Sketches are preferred over composites.

• Avoid them whenever possible.

Mug Books

• Non-suggestive mug book may produce a lead.

• But flooding a witness’ memory with hundreds of random faces is not a good idea.

ID’s from Surveillance Cameras

• If you don’t know the subject, don’t make the ID.

• No 1 to 1 matches!

• Show the photo to someone who knows the suspect.

After the Array

• The pick is not the eureka moment!

• Continue the investigation– Search warrant for clothing worn– Establish the whereabouts of the suspect

when the crime occurred– Examine and submit forensic evidence

Police Reports

• File a report on every identification attempt, even if unsuccessful.

• Unsuccessful identification attempts:– Document your thoroughness– Show that you did not “rush to judgment”– Demonstrate that the witness is not

predisposed to pick just anyone.

• Always report exactly what was said.

Photo Arrays & Line-UpsCaution

• Unconscious Transference– an identification is made because the suspect

looks familiar to the witness, not because he committed the crime

• Risk is created by successive attempts

• And by showing mug files

Transference Experiment

• 15% of witnesses picked a filler

• But 37% picked one if they had previously seen his photo in a mug book.

We reiterate our expectation that the identification protocol set forth in

Commonwealth v. Silva-Santiago will be employed in the regular course of administering photographic arrays.

Comm. V. Brandon Watson SJC, October 2009

Eyewitness misidentification played a role in over 75% of convictions

overturned through DNA testing.

The Innocence Project