Wednesday, February 28, 2007

"Off the Witness Stand": A Psych and Law Conference

"Exactly one hundred years ago, Hugo Munsterberg, William James’s hand-picked successor as the director of Harvard’s Psychology Laboratory, rattled the gates of the criminal justice system, and announced that the social sciences wanted in."

Indeed. And one hundred years later, the battle still rages.

We'll be attending the "Off the Witness Stand Conference" at the John Jay College of Criminal Justice in New York, which runs Thursday through Saturday. The conference is named for Dr. Munsterberg's collection of essays, "On the Witness Stand," which urged the courts to open their doors to a plethora of social science findings that cast serious doubt on assumptions commonly relied on in criminal proceedings.

Our hope is to provide semi-live blogs from the road, with reports on what looks like a great collection of presentations from a long list of heavy-hitting psychologists and lawyers with their fingers on the pulse of the intersection of the social sciences and the law, with significant focus on eyewitness issues. Scheduled speakers include Janet Reno, Steven Penrod, Gary Wells, James Doyle, Saul Kassin, Tim O'Toole, and many others. If you can't make the conference, check back here for updates.

The conference agenda is here (PDF).

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Ledbetter Resurfaces, with Teeth

An interesting case came down earlier this month from an appellate court in New Jersey, in which a conviction was overturned for the failure to give jury instructions on a collection of issues relating to a faulty eyewitness identification. Not surprisingly, the court in State v. King (Westlaw -- acct. required) didn't find Manson to possess enough force to keep a bad ID out of court, but it did find that the great Ledbetter decision from Connecticut had teeth enough to overturn the conviction for failure to instruct the jury on the eyewitness ID pitfalls at play in the case.

The court found that the police investigators conducting the lineup "may have suggested" that their suspect was in the lineup, did not instruct that the perpetrator might or might not be present, and where the witness' description included a facial marking, only the defendant's photo matched that description, showing a noticeable scar. Citing Ledbetter and the NJ Supreme Court's Herrera decision, the court found that instructions on suggestivity and other procedural flaws were warranted, and reversed on those grounds.

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Thursday, February 22, 2007

West Virginia and Maryland ID Reform Bills Pass Senate Committees Today

Big news on the legislative front today -- eyewitness identification reform bills passed committees in the state senates of both West Virginia and Maryland today. In West Virginia, Senate Bill 82 passed the Senate Judiciary Committee this morning despite substantial resistance from law enforcement, and Maryland's Senate Bill 157 passed the Senate Judicial Proceedings Committee today as well.

West Virginia's bill plots out best practices in detail, following DOJ Guidelines for lineup procedures, and also expressing a strong preference for sequential lineups "wherever practicable." The bill also acknowledges the danger of the nonblind sequential procedure -- namely that any cues by the administrator take on even greater force when a witness is only viewing a single suspect -- by requiring that any procedure that "for any reason" is not conducted by a blind administrator must be done simultaneously.

Maryland's bill takes a different approach, requiring that each law enforcement agency within the state adopt a set of written guidelines on the administration of lineup procedures, in compliance with the best practices set forth by DOJ.

Meanwhile, New Mexico's bill continues to percolate through the House...

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Tuesday, February 20, 2007

New Mexico Eyewitness ID Reform Bill Passes House Judiciary

New Mexico's House Bill 295, the Reliable Eyewitness ID Act, passed out of the House Judiciary Committee last night with a vote of 7-5. The bill now moves on to the House floor. An identical bill made its way through the Senate earlier this month, and reached the House with some minor amendments.

The bill is modeled after the DOJ best practices (PDF) on eyewitness identification procedures, but nevertheless has met fierce resistance from law enforcement throughout the legislative process.

Some key provisions of the bill:

  1. Prior to viewing a lineup, a witness must be instructed that the suspect may or may not be in the lineup

  2. The administrator of a lineup must not know the identity of the suspect

  3. A confidence statement must be recorded immediately following any identification

  4. The lineup administrator must not give any feedback on the "correctness" of any identification

  5. All lineup procedures must be recorded, with both audio and video, including any "remarks" or other commentary made by anyone involved

This is a great bill that incorporates most of the scientifically validated best practices, and has real potential to dramatically reduce wrongful convictions in New Mexico. We will continue to follow it closely as it moves through the legislative process.

Some further reading:

  • Wells/Olson study (PDF) showing the importance of the "might or might not be present" instruction (reducing false IDs by as much as 41.6%)

  • Wells et al. Recommendations for Lineups and Photospreads (PDF), tying best practices to the latest social science, including the importance of the double-blind procedure

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Friday, February 16, 2007

A Face in a Crowd, a Face in a Cloud, a Face in a... Photo Array?

An interesting article appeared in the New York Times this week, on the human tendency to extract facial features from our surroundings. The Virgin Mary in a grilled cheese sandwich, Mother Teresa in a cinnamon bun, and Jesus Christ on a pierogi. Besides revealing a curious cultural bias, this tendency to see faces -- and, interestingly, specific faces -- led researchers to investigate the cognitive underpinnings of this phenomenon.

Dr. Doris Tsao, a neuroscientist in Germany, has been exploring the manner in which humans process faces for some years:

"Some patients have strokes and are then able to recognize everything perfectly well except for faces," Dr. Tsao said. "So we started questioning whether there really might be an area in the brain that is dedicated to face recognition."

Upon further research, it began to become clear to Dr. Tsao and her research team that there is a specific region in the human brain that is particularly attuned to the recognition of faces. But not exactly in the sense that we might expect: it appears that this unique adaptive trait is just as good at finding a familiar face where none is present, as it is at finding true "matches."

...people have gotten so used to seeing faces everywhere that sensitivity to them is high enough to produce constant false positives. This tendency to become hyperattuned to common stimuli may represent a survival advantage. "If you lived in primeval times, for instance," Dr. Watanabe said, "it would be good to be very sensitized to tigers."

Coupled with our ability to instantly spot a face against a backdrop of non-face stimuli, there appears to be an equally strong tendency to impose familiar faces where no familiar face exists, perhaps a residual side-effect of an evolutionary survival strategy. What does this say for the ability of a traumatized witness to pick her assailant's face from a photo array -- particularly when it isn't there to begin with?

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Thursday, February 15, 2007

Eyewitness ID Research: Generally Accepted Science? (People v. LeGrande, NY Court of Appeals)

On Wednesday, the New York Court of Appeals heard oral arguments in People v. LeGrand, a case in which the trial judge last year refused to admit expert testimony (PDF) on the reliability of eyewitness identifications, and further held that such evidence is unreliable under the "general acceptance" standard set forth in Frye v. United States.

The case stems from a murder that occurred in upper Manhattan in 1991, and the first lead on a potential culprit emerged a full seven years later, when investigating officers showed a photo array including Mr. LeGrand to witnesses. Based on a seven year old memory of the events, one witness claimed that Mr. LeGrand was the killer; other witnesses admitted that they saw "similarities," but stopped short of making a positive ID -- and others could not make an ID at all. The first trial resulted in a hung jury, but the second ended with a conviction and a 25-year-to-life sentence for Mr. LeGrand.

On appeal, the core issue is whether or not the trial court should have admitted expert testimony on the reliability of eyewitness identifications, particularly in a case where the only ID occurred seven years after the incident, there was a weapon involved, and other issues tending to reduce the reliability of eyewitness identifications were central to the sole evidence purporting to connect Mr. LeGrand to the murder.

During oral arguments yesterday, at issue was Saul Kassin's survey on the "general acceptance" of various issues relating to eyewitness evidence, including the "weapon focus effect" -- an important issue in this case (in addition to confidence-accuracy correlation, the effect of post-event information on eyewitness memory, and confidence malleability). Kassin's survey revealed that 87% of experts polled found the "weapon focus effect" to be reliable and supported by the scientific research, yet the trial court judge refused to allow testimony on the subject, and further found that it is neither reliable nor generally accepted in the relevant scientific community.

This case was expertly briefed by the Center for Appellate Litigation in New York, with amicus support from the Legal Aid Society, Neighborhood Defenders of Harlem, and the New York State Criminal Defense Lawyers Association. Definitely a case to watch, and thanks to Kate for the heads up.

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Tuesday, February 13, 2007

Reform of Outdated Police Procedures : Smart Policy, Smart Politics

Decades of scientific research shows that a few simple reforms to police procedures -- like recording interrogations and identification procedures, using a "blind" method for conducting a photospread or a lineup (one where the police officer running the procedure doesn't know who the suspect is), being careful about how police instruct witnesses -- can ensure that police catch the real culprit more often, and arrest the wrong guy less often. In other words, police reform is good, smart policy.

Its also good politics. As a state senator in Illinois, Barack Obama was instrumental in reforming police procedures after his state suffered an epidemic of wrongful capital convictions. As a district attorney in Hennipin County, Minnesota, Amy Klobuchar instituted a series of important reforms to eyewitness identification procedures.

Last we checked, Senator Obama and Senator Klobuchar's political fortunes had not suffered as a result of sponsoring these reforms. In fact, they're both stronger than ever.

Cross-posted at Daily Kos

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Monday, February 12, 2007

Recent (disturbing) cites to Manson v. Brathwaite

Manson v. Brathwaite is the seminal Supreme Court eyewitness ID case, which set out the constitutional standard governing the admissibility of eyewitness evidence in criminal courts. A couple of recent cites to Manson caught my attention, insofar as they highlight a couple of the myriad problems with the status quo re: admissibility standards and judicial reasoning on the subject of eyewitness ID reliability. Cites and quick summaries below.

In the first, a federal judge inexplicably relies on the eye contact skills native to the work of an insurance agent to find heightened reliability of an ID, with no empirical basis to speak of:

U.S. v. Welch, Slip Copy, 2007 WL 119954 (E.D.Pa., Jan 09, 2007)

Photo show-up in which federal agents arrived at witness's workplace and showed single photo (driver's license) to witness, and asked if witness knew the person. Witness said yes, that's the guy who opened the fraudulent account you happen to be investigating. Court found that anticipated in-court ID was sufficiently reliable and not the result of a tainted process, citing the "benign motive" of the agents in conducting the photo show-up (they only haphazardly discovered that the office where the witness worked was across the street from the house they were searching, so decided to "stop on by" given that they were "unexpectedly" there during business hours). Court also relied on opportunity to view (5-10 minutes in well-lit room), and the "skill and appreciation for the importance to make eye contact" in the work of an insurance agent.

In the second, a state appellate court relies on the myth that law enforcement officers are better at identifying/recalling culprits than other people:

State v. Biggs, --- S.W.3d ----, 2006 WL 4007009 (Tenn.Crim.App., Jul 21, 2006)

Photo show-up two months after incident, in which witness was undercover narcotics agent. Fourteen months after incident, witness was unable to ID defendant in court. Despite needless suggestivity, court found ID reliable, citing three opportunities to view (longest being two minutes), and also relied on the erroneous observation that cops are better at IDing than lay people.

How do we know this judge's assumption is wrong? Because decades of research tell us so. Here are a few quick examples:

Christianson & Karlsson, Police personnel as witnesses to a violent crime, 3 L. & Crim. Psychol. 59 (1998) (cops are no better at identifying perpetrators than civilian college students).

Stanny, Claudia & Johnson, Thomas, Effects of stress induced by a simulated shooting on recall by police and citizen witnesses, 113 Am. J. of Psychol. 359 (2000) (no difference between cops and civilians on identification accuracy).

Woodhead, Baddeley, & Simmonds, On training people to recognize faces, 22 Ergonomics 333 (1979) (three-day training course on face recognition had no effect on identification accuracy).

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