West Virginia Leads The Way On ID Reform

In earlier posts, we've discussed the West Virginia Eyewitness Reform bill. That bill is now a law. Musical version here.

A few things changed in the legislative process. As Ben noted in his February post, earlier forms of the bill mandated specific procedural reforms. The final version contains a few specific directions; it tells police to provide three important instructions to witnesses before conducting a lineup or photo array (the culprit might or might not be present, that the witness is not required to make an identification, and that it is just as important to exclude innocent people as to identify the culprit) and requires police to keep a written record of all lineups and photo arrays. Other than that, however, further work is left to a task force, whose mandate is to develop guidelines "that are consistent with the reliable evidence supporting best practices."

It will be interesting to see what the new task force proposes. Its report is due in December of 2008. In the meantime, congratulations to West Virginia for helping to lead the way on this important reform issue.

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Weapon Focus Under Attack?

Perhaps the only puzzling part of the LeGrand opinion (PDF) was the section dealing with weapon focus -- that is, the phenomenon in which the presence of a weapon during the commission of a crime negatively affects the eyewitness's ability to later identify the perpetrator. Despite finding that the trial court should have allowed the defense expert to testify on several areas of eyewitness research, the LeGrand court "agree[d with the trial judge] that there was insufficient evidence [of the reliability of weapon focus] to confirm that the principles expounded by defendant’s expert witness are generally accepted by the relevant scientific community."

Is this a signal that the New York Court of Appeals did not believe sufficient scientific consensus on the reliability of weapon focus currently exists? Or was it simply a statement, unique to record in the LeGrand case, that the defense there did not present sufficient evidence there to meet its foundational burden under United States v. Frye?

I don't think the Court could reasonably have meant the former -- i.e., that there is currently not enough expert consensus about the reliability of weapon focus. Or at least, if that's what the Court meant, it is demonstrably wrong. The most recent (2001) Kassin survey of experts in the field showed that 87% of surveyed experts believe the research on weapon focus is now sufficiently reliable to form the basis of testimony. This percentage increased 30% over the 1989 study, in which only 57% of experts found the weapon focus phenomenon sufficiently documented. Kassin, et al, On the General Acceptance of Eyewitness Testimony Research: A New Survey of Experts, American Psychologist at 405 (May 2001).

Why the big increase from 1989 to 2001? The main reason was the publication, in 1992, of Dr. Nancy Steblay's meta-analytic review of the weapon focus effect. Nancy M. Steblay, A Meta-Analytic Review of the Weapon Focus Effect, 16 Law and Human Behavior 413-424 (1992). That review conducted a statistical analysis of the data from the 12 studies that had been done to that date on weapon focus (accounting for 19 individual tests of the hypothesis), to determine whether those results, as a whole, showed a weapon focus effect. The study demonstrated that a statistically significant weapon focus effect does in fact exist, and that the effect was "more pronounced in research scenarios that appear as real life to the subject." The study also showed an increase in the effect when the viewed object was clearly a threatening object, like a gun, even if the entire incident was being viewed on video.

To be sure, in the 19 tests reviewed, only 6 showed a statistically significant weapon focus effect (while the other 13 did not see an effect). But a meta-analysis does not simply count up the studies on the issue and stop there; if it did, a study of 5 witnesses would have equal weight with a study of 500 witnesses. Rather, the meta-analysis (and I'm simplifying here, in part because I'm not a statistician) reviews the entirety of all the witnesses and figures out whether any effect is statistically significant. See, e.g., R. Rosenthal, Combining results of independent studies, Psychological Bulletin, 85, 185-193 (1978); R. Rosenthal, Meta-analytic procedures for social research (1984). The analysis also controls for the possibility that one lab might be skewing the results so that if only one big study showed the phenomenon, that alone would not signify a weapon focus effect.

Conducted in this way, the meta-analysis showed a statistically significant weapon focus effect. It also showed that some of the studies in which the effect was reduced or not seen either didn't involve a weapon at all (some involved, for example, a person carrying a bloody meat cleaver but not using it as a weapon) and several others did not involve any sort of crime. Moreover, one of the experiments in which a small effect was seen involved a comparison between two groups in which the culprit had a weapon -- in one the weapon was used and in the other it was concealed; in such a scenario it is easy to see why any weapon focus effect would seem reduced because the control group itself may also have experienced a weapon focus effect as witnesses may well have been focused on the concealed weapon.

Following the meta-analysis, and several other experiments in the 1990's confirming these findings, experts moved from relatively skeptical to substantial consensus on the question of weapon focus. That is where experts are today, which is why LeGrand discussion cannot apply to the phenomenon generally, but can only reasonably be read to mean that the trial court there had not erred in excluding testimony because the defense had failed to demonstrate consensus on that record.

Presumably, when fully confronted with the facts on weapon focus, New York courts will do what others, like the Third Circuit, have done: Let the jury take the science on weapon focus into account when deciding the reliability of an identification.

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Onward from LeGrand

Decisions like LeGrand (PDF), and the Third Circuit's superb decision last summer in United States v. Brownlee (PDF), 454 F.3d 131 (3d Cir. 2006), suggest that courts are starting to warm up to the idea that the social science research can help limit the role mistaken eyewitness testimony has played in creating wrongful convictions. I think it's likely that these cases will hasten the day when expert testimony of this sort is routine in cases that rely primarily on eyewitness testimony. I also think this is important: For too long, the judicial system has virtually ignored this important research. Courts ignore science at their peril.

But it is also not enough. There are not enough experts, there never will be enough experts, and expert testimony will often be limited even in cases where it does occur. And even if expert testimony perfectly assesses the identification and its reliability (or unreliability), that will still not always be enough to counteract a witness who genuinely but mistakenly looks across the courtroom and says: "That's him! I'll never forget that face as long as I live."

So where else do we go from here? Quite apart from expert testimony, we need to improve ways of selecting, educating and instructing jurors throughout the trial. The legal system also can reform itself in other ways. Gary Wells, for example, has suggested that the legal system should prevent "lineup jeopardy" (the risk of mistakenly being accused of a crime simply by virtue of being placed in a lineup) by limiting the ability of police to place someone in a lineup or photo spread -- through a requirement that police independently make some showing of individualized suspicion probable cause (PDF) before an identification procedure occurs.

But probably the most important piece of the reform puzzle will occur outside the courtroom, since it involves preventing eyewitness evidence from becoming unnecessarily "tainted" BEFORE it makes its way into court. That is, by adopting police procedures that prevent misidentifications from occurring at all, rather than trying to blunt or diminish their effect afterwards.

The legal system can do a lot to shape the procedures police use to handle eyewitness evidence, and we now know a lot about which police identification procedures work and which do not. A lot of what we know has even been compiled into guidelines (PDF) by the Department of Justice. Some police departments will choose to follow them on their own, and will provide sufficient training so that officers can professionally handle eyewitness evidence in every case (see, e.g., Hennepin County, Minnesota, and Northampton, Massachusetts (PDF)). The more police that adopt this sort of reform on their own the better because other solutions are more complicated and will take more time.

But inevitably some jurisdictions will lag behind and resist. In those jurisdictions, some form of mandate will be required. Some states will go the legislative route, as West Virginia, Maryland, Virginia and others have done. Others will go the executive branch route, as New Jersey has done. And still other states will require the judicial route, with courts forcing police to change by excluding eyewitness evidence infected by shoddy and outdated police practices.

Some have said that reforms like these cannot be legislated or directed by courts; police need to want to change their conduct before reforms can take hold. Many reform-minded police officers would say otherwise. A good example has arisen in the debate involving recorded interrogations. Many police departments and officers vigorously opposed recording interrogations, usually on the ground that it would deter statements. Our police in Washington D.C. said the same thing when they fought recording legislation. But now that the results are in, police I have spoken with (including police here) love recording interrogations because it produces evidence they can be confident in -- confident in their own minds that any confession is reliable and confident that the evidence will hold up to any challenge in court when scrutinized by judges, lawyers and jurors.

The same thing will eventually happen with eyewitness procedures -- once the bias in favor the status quo is broken, police will see how reformed eyewitness procedures are just another example of how simple, smart police reform can make the system tougher, smarter and fairer for everyone involved.

That's where we're headed. It's just a matter of time.

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LeGrand reversed! (NY Murder Conviction Overturned for Denial of ID Expert)

As previously reported, last month the New York Court of Appeals heard oral arguments in People v. LeGrand, a murder 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.

Today, New York's high court reversed (PDF) the conviction, on grounds that it was an abuse of discretion for the trial court to exclude expert testimony on the reliability of of eyewitness identifications. With respect to the lack of correlation between confidence and accuracy and "the effect of postevent information on accuracy and confidence malleability," it is error to exclude expert testimony in a case in which the identification is central and there is a lack of corroborating evidence.

In short, the law on expert testimony on eyewitness ID in New York now appears to be:

It is an abuse of discretion to exclude an ID expert when:
- The case turns on an uncorroborated eyewitness ID; and
- The subject matter of the expert's testimony is generally accepted by experts in the field and beyond the ken of the average juror.

And the following factors affecting eyewitness reliability are both generally accepted and beyond the ken:
- Lack of correlation between confidence and accuracy;
- The adverse effect of confirming feedback on eyewitness accuracy; and
- The malleability of eyewitness confidence.

On the above topics, the court at least implied that Frye hearings would no longer be necessary to establish general acceptance prior to admission of expert testimony. The court did not find the "weapon focus effect," however, to be generally accepted among the relevant scientific community, despite substantial research on the subject.

As previously reported, the case was expertly briefed by the Center for Appellate Litigation in New York, with amicus support (PDF) from the Legal Aid Society, Neighborhood Defenders of Harlem, and the New York State Criminal Defense Lawyers Association.

[Cross-posted at Daily Kos.]

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Do They All Look Alike?: A Bibliography of Research on the Cross-Racial Phenomenon

A wealth of research over the last 30 years has shown that identifications by witnesses belonging to a different race than the individual being observed are less reliable than same-race identifications. The phenomenon has been termed the "own-race bias," as well as the "cross-racial effect." It is not a function of prejudice, and does not depend on a belief by the witness that members of a particular race "all look alike" -- or even look more or less similar than members of one's own race. Rather, it is a perceptual phenomenon that appears to apply to members of all races, which social scientists have known for decades.

Below is a bibliography of research on the topic, dating all the way back to 1978 when John Brigham and P. Barkowitz conducted a study that revealed that members of different races were less accurate when attempting to identify individuals of other races.

Bibliography of research:

Anthony, T. Cooper, C., & Mullen, B. (1992). Cross-racial facial identification: A social cognitive integration. Personality & Social Psychology Bulletin, 18, 296-301.

Ayuk, R. E. (1990). Cross-racial identification of transformed, untransformed, and mixed-race faces. International Journal of Psychology, 25, 509-527.

Banaji, M. R. & Bhaskar, R. (2000). Implicit stereotypes and memory: The bounded rationality of social beliefs. In D.L. Schacter, E. Scarry, Memory, brain, and belief. pp. 139-175. Cambridge: Harvard University Press.

Barkowitz, P. a. B., J. C. (1982). Recognition of faces: Own-race bias, incentive, and time delay. Journal of Applied Social Psychology, 12, 255-268.

Blascovich, J., Wyer, N. A., Swart, L. A., & Kibler, J. L. (1997). Racism and racial categorization. Journal of Personality and Social Psychology, 72(6), 1364-1372.

Bothwell, R. K., Brigham, J.C., & Malpass, R.S. (1989). Cross-racial identifications. Personality and Psychology Bulletin, 15, 19-25.

Brigham, J. C. (1980). Perspectives on the impact composition, race, and witness confidence on accuracy. Law & Human Behavior, 4(4), 315-321.

Brigham, J. C. (1978). The effect of race, sex, experience and attitude on the ability to recognize faces. Do "they all look alike?". Journal of Applied Social Psychology., 8, 306-318.

Brigham, J. C., Bennett, L. B., Meissner, C. A., & Mitchell, T. L. (in press). The influence of race on eyewitness memory. In R. C. L. Lindsay, D. F. Ross, J. D. Read, & M. P. Toglia (Eds.), Handbook of eyewitness psychology. Volume II: Memory for people (pp. 257-281). Hillsdale, NJ: Lawrence Erlbaum.

Brigham, J. C. (in press). The role of race and racial prejudice in recognizing other people. Nebraska Symposium on Motivation, 2005 (Vol 53). New York: Springer.

Brigham, J. C. (1978). Do "They all look alike?" The effects of race, sex, experience, and attitude on the ability to recognize faces. Journal of Applied Social Psychology, 8, 306-318.

Brigham, J. C. (1979). Cross-racial recognition and age: When you're over 60, do they still "all look alike?". Personality and Social Psychology Bulletin, 5, 218-222.

Brigham, J. C., & Malpass, R.S. (1985). The role of experience and contact in the recognition of faces of own- and other-races persons. Journal of Social Issues, 41, 139-155.

Brigham, J. C., & Meissner, C. A. (2000, March, ). Representation and memory for same and other-race faces. Paper presented at the American Psychology-Law Society, New Orleans, LA.

Brigham, J. C., & Ready, D. L. (1985). Own-race bias in lineup construction. Law & Human Behavior, 9, 415-424.

Brigham, J. C., Maass, A., Snyder, L. D., & Spaulding, K. (1982). The accuracy of eyewitness identifications in a field setting. Journal of Personality and Social Psychology., 42, 673-681.

Bruce, A. J., Beard, K. W., & Tedford, S. (1997). African Americans' and Caucasian American's recognition and likeability response to African American and Caucasian American faces. Journal of General Psychology, 124, 143-156.

Bruyer, R., & Dussart, T. (1985). Lateral differences in the race effect in face recognition. International Journal of Neuroscience, 25, 1-12.

Bruyer, S. (1987). Race categorization and face recognition stages in the processing of laterally displayed faces. Cortex, 23, 415-429.

Buckhout, R., & Regan, S. (1988). Explorations in research on the other-race effect in face recognition. In P. E. M. M. M. Gruenberg, et al. (Ed.), Practical aspects of memory: Current research and issues. (Vol. 1): Memory in everyday life. (pp. 40-46). New York: NY: John Wiley & Sons.

Burgess, M. C. R. (1998). The cross-race effect in facial recognition: A function of expertise? Dissertation Abstracts International: Section B: the Sciences & Engineering. Vol 58(12-B), 6850.

Byatt, G., & Rhodes, G. (1998). Recognition of own-race and other-race caricatures: Implications for models of face recognition. Vision Research, 38, 2455-2468.

Campbell, D. T. (1964). Distinguishing differences of perception from failures of communication in cross-cultural studies. .

Carroo, A. W. (1986). Other race recognition: A comparison of Black American and African subjects. Perceptual & Motor Skills, 62, 135-138.

Carroo, A. W. (1987). Recognition of faces as a function of race, attitudes and reported cross-racial friendships. Perceptual and Motor Skills, 64, 319-325.

Carter, L. F. (1948). The identification of "racial membership.". Journal of Abnormal & Social Psychology, 51, 339-341.

Chance, J. E. G., A.G. (1987). Retention interval and face recognition: Response latency measures. Bulletin of the Psychonomic Society, 25, 415-418.

Chance, J. E., & Goldstein, A. G. (1981). Depth of processing in response to own- and other-race faces. Personality and Social Psychology Bulletin, 7(3), 475-480.

Chance, J. E., & Goldstein, A. G. (1996). The other-race effect and eyewitness identification. In S. L. Sporer, R.S. Malpass & G. Koehnken (Ed.), Psychological issues in eyewitness identification. (pp. 153-176). Mahwah, NJ: Erlbaum.

Chance, J. E., Goldstein, A, G., & Anderson, B. (1986). Recognition memory for infant faces: An analog of the other-race effect. Bulletin of the Psychonomic Society, 24(4), 257-260.

Chance, J. E., Turner, A. L., & Goldstein, A. L. (1982). Development of differential recognition for own- and other-race faces. Journal of Psychology, 112, 29-37.

Chance, J., Goldstein, A. G., and McBride, I. L. (1975). Differential experience and recognition memory for faces. Journal of Social Psychology., 97, 243-253.

Chiroro, X. V., T. (1995). An investigation of the contact hypothesis of the own-race bias in face recognition. Quarterly Journal of Experimental Psychology, 48A, 879-894.

Cross, J. F., & Cross, J. (1971). Age, sex, race, and the perception of facial beauty. Developmental Psychology, 5, 433-439.

Cross, J. F., Cross, J. and Daly, J. (1971). Sex, race, age, and beauty as factors in recognition of faces. Perception and Psychophysics, 10, 393-396.

Deregowski, E., & Shepherd. (1973). A cross-cultural study of recognition of pictures of faces and cups. International Journal of Psychology, 8(1), 269-273.

Devine, P. G., & Malpass, R. S. (1985). Orienting strategies in differential face recognition. Personality and Social Psychology Bulletin, 11(1), 33-40.

Doyle, James M. (2001). Discounting the error Costs: Cross-Racial False Alarms in the Culture of Contemporary Criminal Justice. Psychology, Public Policy, and Law, 7, 253-262.

Elliott, E. S., Wittenberg, B. H. (1955). Accuracy of identification of Jewish and non-Jewish photographs. Journal of Abnormal & Social Psychology, 51, 339-341.

Elliott, H. D., Deregowski (Wills?), J. B., and Goldstein, A. G. (1973). The effects of discrimination training on the recognition of white and oriental faces. Bulletin of the Psychonomic Society., 2.

Ellis, H. D. a. D., J. B. (1981). With-in race and between-race recognition of transformed and untransformed faces. American Journal of Psychology, 94, 27-35.

Ellis, H. D., Davies, G. M., & McMurran, M. M. (1979). Recall of White and Black Faces by White and Black witnesses using the Photofit system. Human Factors, 21, 55-59.

Ellis, H. D., Deregowski, J. B., and Shepherd, J. W. (1975). Description of white and black faces by white and black subjects. International Journal of Psychology., 10, 119-123.

Fallshore, M.& Schooler, J. W. (1995). Verbal vulnerability of perceptual expertise. Journal of Experimental Psychology: Learning, Memory, & Cognition, 21, 1608-1623.

Feingold, G. A. (1914). The influence of context on the identification of persons and things. Journal of Criminal Law and Criminology, 5, 39-51.

Feinman, S. a. E., D. R. (1976). Children's ability to recognize other children's faces. Child Development., 47, 506-570.

Frable, D. E. S., & Bem, S. L. (1985). If you are gender schematic, all memembers of the opposite sex look alike. JPSP, 49(2), 459-468.

Galper, G. E. (1973). "Functional race membership" and recognition of faces. Perceptual and Motor Skills., 37, 455-462.

Goldstein, A. G. (1979). Facial feature variation: Anthropometric data II. Bulletin of the Psychonomic Society, 13(3), 191-193.

Goldstein, A. G. (1979). Race-related variation of facial features: Anthropometric data I. Bulletin of the Psychonomic Society, 13(3), 187-190.

Goldstein, A. G. a. C., J. (1976). Measuring psychological similarity of faces. Bulliten of the Psychonomic Society., 7, 185-193.

Goldstein, A. G. a. C., J. (1978). Judging face similarity in own and other races. Journal of Psychology, 98, 185-193.

Goldstein, A. G., & Chance, J. E. (1979). Do foreign faces really look alike? Bulletin of the Psychonomic Society, 13, 111-113.

Goldstein, A. G., & Chance, J. E. (1980). Memory for faces and schema theory. Journal of Psychology, 105, 47-59.

Goldstein, A. G., & Chance, J. E. (1985). Effects of training on Japanese faces recognition: Reduction of the other-race effect. Bulletin of the Psychonomic Society, 23, 211-214.

Goldstein, A. G., Knight, P., Bailis, K., & Conover, J. (1981). Recognition memory for accented and unaccented voices. Bulletin of the Psychonomic Society, 17(5), 217-220.

Hay. (1999). Repetition priming of face gender judgments: An instance based explanation. Current Psychology, 18(1), 140-149.

Hintzman, D. L. (1986). "Schema abstraction" in a multiple trace memory. Psychological Review, 93, 411-428.

Hintzman, D. L. (1988). Judgements of frequency and recognition in a multiple-trace memory model. Psychological Review, 95, 528-551.

Hirschberg, N., Jones, L.E., Haggerty, M. (1978). What's in a face: Individual differences in face perception. Journal of Research in Personality, 12(4), 488-499.

Holquin, S., McQuiston, D. E., MacLin, O. H., & Malpass, R. S. (2000, ). Racial classification of racially ambiguous faces. Paper presented at the WPA.

Hurwitz, D., Wiggins, N, & Jones, L. (1975). A semantic differential for facial attribution: The face differential. Bulletin of the Psychonomic Society, 6, 370-372.

Jalbert, N. L., & Getting, J. (1992). Racial and gender issues in facial recognition. In D. B. F. Losel, & T. Bliesener (Ed.), Psychology and Law: International perspectives. (pp. 309-316). Berlin: Walter de Gruyter & Co.

Kassin, S. M., Ellsworth, P. C., & Smith, V. L. (1989). The "general acceptance" of psychological research on eyewitness testimony: A survey of the experts. American Psychologist, 44, 1089-1098.

Lavrakas, P. J., Buri, J. R, and Mayzner, M. S. (1976). A perspective on the recognition of other-race faces. Perception and Psychophysics, 20, 475-481.

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Levin, D. T. (2000). Race as a visual feature: Using visual search and perceptual discrimination tasks to understand face categories and the cross-race recognition deficit. Journal of Experimental Psychology: General. 129(4) 559-574

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Levin, Daniel T., Beale, James M. (2000). Categorical perception occurs in newly learned faces, other-race faces, and inverted faces. Perception & Psychophysics, 62(2), 386-401.

Levin, D. T., & Lacruz, I. (1999, November, ). An alternative to the encoding expertise explanation for the cross-race recognition deficit. Paper presented at the Psychonomic Society, Los Angles, CA.

Li, J. C., Dunning, D., & Malpass, R. S. (1998, March, ). Cross-racial identification among European-Americans: Basketball fandom and the contact hypothesis. Paper presented at the American Psychology - Law Society, Redondo Beach, CA.

Lindsay, D. S., Jack, P. C., & Christian, M. A. (1991). Other-race face perception. Journal of Applied Psychology, 76, 587-589.

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Lindsay, R. C., & Wells, G. L. (1983). What do we really know about cross0race eyewitness identification? In S. M. A. L.-B. B. R. Clifford (Ed.), Evaluating witness evidence: Recent psychological research and new perspectives. (pp. 219-234). New York: Wiley.

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MacLin, Otto H. & Malpass, Roy S. (2001). Racial Categorization of Faces: The Ambiguous Race Face Effect. Psychology, Public Policy, and Law, 7, 98-118.

Maclin, Otto H., Maclin, M. Kimberly., & Malpass, Roy S. (2001). Race, Arousal, Attention, Exposure, and Delay: An examination of Factors Moderating Face Recognition. Psychology, Public Policy, and Law, 7,134-152.

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Innocence Week in DC: March 26 - 30, 2007

Next week is "Innocence Week" at American University College of Law, where a series of lectures will provide "An Examination of Wrongful Convictions in America" (PDF). Lecture topics will include Legal Obstacles to Exoneration, where WCL crim profs, including Cynthia Jones and Angela J. Davis, will "take a critical look at the criminal justice process, both pretrial and post‐conviction, and discuss some of the legal barriers that can cause wrongful convictions and effectively prevent the exoneration of the innocent." On Tuesday, Timothy O'Toole from the DC Public Defender Service, along with Detective Jim Trainum from the Metropolitan Police Department, and Shawn Armbrust from the Mid-Atlantic Innocence Project will discuss the causes of wrongful conviction, including faulty eyewitness identifications and false confessions. Wednesday and Thursday's talks will feature exonerees and their stories of wrongful conviction, including that of Kirk Bloodsworth, Maryland resident who was falsely convicted of rape and later became the first death row inmate to be exonerated by DNA testing.

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Upcoming Seminar on Eyewitness ID in Seattle: May 4, 2007

At an upcoming CLE seminar (PDF) in Seattle, experts on the subject of eyewitness identification from the social sciences, law enforcement, and the criminal defense community will gather to discuss the ongoing, broad-based reform effort. Speakers include Gary Wells, who will discuss current research on eyewitness memory and what it tells us about the reliability of certain procedures, Lieutenant Ken Patenaude from Northampton, Massachusetts, who will talk about his (successful) experience with the reform protocols in his jurisdiction, and D.C. public defender Timothy O'Toole, who will discuss defense strategies for attacking unreliable identification protocols in court.

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No Eyewitness ID Expert? Ineffective Assistance of Counsel.

Or at least in California, in this unpublished 2002 decision (PDF) from People v. Jason Kindle, where the state appellate court overturned a conviction on grounds that trial counsel's failure to call an eyewitness ID expert in a case where identity was a pivotal issue was ineffective assistance of counsel.

The case involved an office store robbery by a man described as "heavily disguised," where two eyewitnesses to the initial incident claimed to see the same man outside the store on a future date, and claimed that he was a man who worked at the same store as a janitor. On the future date, however, the defendant was clearly visible on a surveillance tape at his other place of employment, from 20 minutes before through 20 minutes after the time he was alleged to have appeared at the robbery site on that same day.

The police conducted a photo lineup in which the defendant was in the pole position, wearing his blue work shirt with the name of the contractor through which he was employed as a janitor at the office store that was robbed -- the same shirt in which his co-workers regularly saw him at work. The witnesses knew their coworker was a suspect by the time they were shown the photo array, though none of them thought it was him at the time of the incident (in fact, they initially agreed the culprit was taller). In other words, they had little difficulty selecting their coworker, in his work uniform, from a lineup otherwise comprised of strangers.

Other incriminating facts "linking" Mr. Kindle to the crime included the fact that he owned a bike (so did the robber!), gave one of his coworkers "an eerie scary type look" a couple of months after the incident, and sight of his face caused one witness to "feel the same pain" she felt the day of the robbery. More where that came from in the decision (PDF), which makes for a pretty interesting read.

With good reason -- though in the only decision of its kind that I've come across -- the appellate court overturned the conviction, on grounds that trial counsel's failure to call an expert on the problems with eyewitness identification in this case constituted ineffective assistance of counsel.

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More from Munsterberg: Accuracy & Choosing Rates, and New Tech

Highlights from the last day and a half include a new meta-analysis of nine studies, charting variables including cross-race, weapon-focus, and the ongoing simultaneous vs. sequential debate, presented by Stephen Ross.

Dr. Ross's central suggestion for future research was the crafting of meaningful ways of distinguishing between "ground accuracy" and suspect choosing rates, when comparing the effectiveness of different presentation procedures used in field studies. Little attention has been paid to the distinction, and yet field study after field study purports to compare the "accuracy rates" of simultaneous and sequential procedures. All these studies actually reveal are suspect choosing rates, and in all but 3 studies, according to Dr. Ross, no attempt was made to assess what he termed "ground truth" -- i.e., whether or not the suspect actually was the culprit, which would seem to be the ultimate question. Ross urged scientists to focus on using reliable methods (e.g., DNA) to corroborate guilt, in order to give more weight to findings that rarely show more than the likelihood that a witness will choose the police suspect. In the same study, sequential lineups were again shown to result in a higher percentage of suspect picks, but with a lower pick-rate overall.

Another set of talks was presented by Otto MacLin and his crew from the University of Northern Iowa, on using technology to advance lineup reforms. Dr. MacLin developed a software application called PC Eyewitness, which in its latest PDA version allows law enforcement officers to take photos of suspects in the field, transmit descriptive information to a central server, and perform "centralized lineup construction," using statewide databases. The technology itself is fairly straightforward, but in a field that is otherwise behind on the technological front, this appears as an important development toward the end of standardizing procedures and minimizing suggestivity in the field.

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Lineup Waivers?

More from Munsterberg -- Saul Kassin's plenary talk this afternoon chronicled a collection of DNA exonerations, as well as one suspected false conviction with post-conviction proceedings still in progress, a man named Marty Tankleff. Seventeen years ago, while in his last year of high school, Tankleff awoke in his house to find all the lights on, his mother brutally murdered, and his father bludgeoned to within inches of his life. Following a collection of blatant lies by police regarding fabricated evidence -- including a fabricated finger-pointing by his dying father -- Tankleff confessed, citing his inability to contradict his father, and remains in prison 17 years later for a crime he very likely did not commit.

It also turns out that in Louisville, Kentucky, there is a little-known practice called the voluntary lineup waiver, which is to say that a suspect can waive his right to be placed into a lineup and appear for a show-up in front of a witness. As it turns out, innocent people are the only ones who take advantage of this particular option, based on the (often false) belief that the rigors of the criminal justice system will bring about the truth, and that they do not require the same protections against suggestive police procedures. It also turns out that many such innocents end up in prison as a result.

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Day 2 from Munsterberg -- Face Recognition, Eye Tracking, and the Suggestibility of Human Memory

Some notes from Day 2 at the "Off the Witness Stand" conference -- particularly interesting was a paper presentation on the use of visual behavior as a mechanism to understand eyewitness decision-making in simultaneous lineups. Witnesses were suited up with eye-tracking equipment, which recorded the direction and duration of eye movements throughout a series of test sessions at which they attempted to select culprits from simultaneous lineups. Results were mapped to the locations of lineup members, and charted so as to represent the paths taken by the eyes, revisitations to particular subjects, and comparisions between two or more subjects. One observation was that many subjects neglected to view one or more lineup participants altogether, which is to say that the witness's eyes never rested on certain individuals. Those cases represented the highest level of false identifications.

Following that talk, Beth Loftus suggested that the same technology might be used to test the weapon-focus effect, by tracking eye movements directed at a weapon versus a face in a staged incident.

Another session focused on the suggestibility of human memory. Notable findings included the fact that the mere showing of a photo of a particular activity to subjects, followed by a week or more delay, had the effect of implanting the memory in the subject's mind of actually having performed that activity.

More to come. Dr. Saul Kassin is up next, with a presentation on "untrue confessions" from colonial Salem to the 21st century.

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Live from Munsterberg

A quick report from Day 1 of "Off the Witness Stand," which is off to a great start. Kicking things off was a panel comprised of Janet Reno, Jim Doyle, Jeremy Travis, and Hon. John Martin.

Jim Doyle opened up with his characterization of this conference as a sort of "do-over" of the historic dialogue between Hugo Munsterberg and John Henry Wigmore, which scared Munsterberg and other social scientists away from the courts for most of the last century, on the grounds that more data and more research were necessary before the social sciences were ready for the rigors of a well-crafted cross-examination. Now, the studies have been done, the science is in, and Reno and others see this conference as an opportunity to make new efforts at bringing science and the law more closely into alignment.

Jeremy Travis, former director of the National Institute of Justice, told the story of receiving a call from Janet Reno when she was the US Attorney General under Clinton. She was reading an article in the Washington Post about a man who had just been released from prison after 10 years of wrongful conviction, which was overturned by way DNA test results that cleared him from involvement. That story led Ms. Reno to investigate how many other cases there were like this one, and then to root out the causes. That investigation led to the study published as "Convicted by Juries, Exonerated by Science," (PDF) which told the tale of 26 DNA exonerees, almost all of whom had been convicted based on faulty eyewitness testimony and, ultimately, a failure of science to inform the criminal justice system.

More to come from John Jay in the days ahead.

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