When the DOJ Says It, Jurors Listen

A study was published a couple of years ago that tested juror reactions to information suggesting that police had failed to follow best practices in conducting eyewitness lineup procedures. (I haven't found the text online, but here's the cite: J.M. Lampinen et al., The reactions of mock jurors to the Department of Justice Guidelines for the collection and preservation of eyewitness evidence, 27 Basic and Applied Soc. Psychol. 155 (2005)).

The study used a set of mock trial transcripts, which were adapted from a real robbery case, in which a man was described as having robbed a convenience store while wearing a "makeshift" mask, and who told store employees that he had a gun and was "not afraid to use it." Three witnesses testified against the defendant -- one who claimed to have seen the perpetrator from about 40 feet away outside the store, as he removed his mask, a police officer who was inside the store during the robbery, and a friend of the defendant who testified that the defendant had a gambling problem and owed a lot of money, thereby establishing motive. The first witness selected the defendant from a photo array, after which charges were filed.

The researchers tested three different conditions, using the same facts -- in the first (control) condition, a trial transcript was provided to mock jurors including no mention of police errors in conducting the lineup procedure. In the second condition, two police errors relating to lineup procedures were mentioned, which were subsequently brought up by the defense. In the third, the same two police errors were mentioned, and the defense attorney not only highlights them, but also points out that they violate the Department of Justice Guide for Law Enforcement on Eyewitness Evidence (PDF). Aside from these modifications, the underlying transcripts were identical.

From the second condition:

Q. Officer Jacobs, I want to now ask you about the lineup which you showed to Ms. Wilcox.
A. Okay.
Q. Officer Jacobs, did you ever inform Ms. Wilcox that the culprit may or may not be in the lineup?
A. I don’t believe so.
Q. Don’t you believe it would have been a good idea to let the witness know that she didn’t have to pick somebody?
A. In my experience, things like that don’t make any difference.
Q. Officer Jacobs, Mr. Martinez has a mole on his left cheek, did any of the other photographs you showed Ms. Wilcox have a mole?
A. No.
Q. Aren’t you afraid that would make Mr. Martinez stand out?
A. No sir I wasn’t. In my experience, witnesses either recognize someone or they don’t.

And then from the condition in which the procedures used were contrasted with DOJ best practices:

Q. Officer Jacobs, I want to now ask you about the lineup which you showed to Ms. Wilcox.
A. Okay.
Q. Officer Jacobs, did you ever inform Ms. Wilcox that the culprit may or may not be in the lineup?
A. I don’t believe so.
Q. Don’t you believe it would have been a good idea to let the witness know that she didn’t have to pick somebody?
A. In my experience, things like that don’t make any difference.
Q. Officer Jacobs, are you familiar with the Department of Justice guidelines that were recently published entitled “Eyewitness Evidence: A Guide for Law Enforcement”?
A. I’ve heard of them.
Q. And are you aware that they state that the investigating officer should make clear to the witness that the culprit may or may not be in the lineup?
A. No I wasn’t.
Q. Alright Officer Jacobs, Mr. Martinez has a mole on his left cheek, did any of the other photographs you showed Ms. Wilcox have a mole?
A. No.
Q. Aren’t you afraid that would make Mr. Martinez stand out?
A. No sir I wasn’t. In my experience, witnesses either recognize someone or they don’t.
Q. I see, well were you aware, Officer Jacobs, that the Department of Justice guidelines state that the suspect should not stand out as being different from the
other members of the lineup?
A. No I wasn’t.

The same tactics were echoed in closing arguments.

The result?

Mock jurors in the DOJ condition (a) voted to convict at a lower rate, (b) rated the eyewitness as less credible, (c) rated the investigating officer as less professional, and (d) were more likely to opine that the investigating officer had thereby jeopardized the prosecution’s case.

Just as interesting was the fact that raising problems with the ID procedures on cross and again in closing produced no fewer convictions than the condition in which the errors were never mentioned at all.

The moral? Juries listen when they learn that police violated practices set forth by an authoritative source. They pay less mind when the source is a defense lawyer.

UPDATE: I should mention, as has been mentioned to me, that the results of this study should not be taken to invoke a sort of fatalism in those cases where introduction of the DOJ guidelines, or some other authoritative source, is not permitted or otherwise possible. A cursory look at the study shows that the second condition by no means involved a properly developed cross of a cop on a flawed ID procedure, and the lack of difference in conviction rate between the first two conditions should certainly not be taken to mean that it isn't worthwhile to wage a full scale attack on bad IDs, even when you can't get authoritative best practices in front of the jury. The silent lesson from the study might just be that your cross shouldn't look like the one in condition #2.

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Questions for Cops

The Niemen Foundation for Journalism at Harvard has a new entry up on its press watchdog blog, setting out a list of questions that the press should be asking local law enforcement and prosecutor organizations relating to eyewitness procedures.

The list comes courtesy of eyewitness ID reform institution Gary Wells:

Q. Does your agency have written policies and procedures on live and photo lineups?

Q. What are those policies and procedures? Can we get a copy?

Q. Do your policies and procedures follow the recommendations that have been made by the U.S. Department of Justice and by eyewitness scientists?

Q. How many fillers (non-suspects) are used in your lineups?

Q. What are the procedures used for selecting the fillers to be used in your lineups?

Q. What instructions are given to witnesses prior to viewing a lineup?

Q. Do you use an independent lineup administrator (the double-blind lineup procedure) or do you permit the lineup to be conducted by someone who knows which persons are fillers and which is the suspect?

Q. Do you secure a statement of certainty from the eyewitness at the time of the identification?

According to Dr. Wells, only about 15% of the 14,000 independent law enforcement agencies in the United States have made substantial changes to their lineup procedures to bring them in line with the science and best practices established. Making the good list are the following:

New Jersey (the entire state)

Boston and many surrounding areas

Minneapolis and many surrounding areas

North Carolina (nearly all major police departments)

Many of the departments in Wisconsin

Virginia Beach, VA

Santa Clara County, CA

Dr. Wells also observes that police tend to be more receptive to these reforms than prosecutors, because they have first-hand knowledge of the "vagaries" of eyewitness identification, through their common experience of a witness picking a "filler" (non-suspect) from a lineup, which serves as irrefutable evidence that eyewitness memory is fallible.

Prosecutors, on the other hand, often only receive information of "positive" IDs, and thus are more likely to have a distorted perspective on the reliability of eyewitness evidence generally. Which is why we need to continue drawing attention to those places where lineup reforms have proven successful, to show prosecutors and law enforcement agencies that the reforms actually work, make evidence collection more reliable, and ultimately make it more likely that the right people are put away.

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Texas ID Reform Bill Dies in Committee

As reported by Scott Henson at Grits for Breakfast:

Despite the rash of exonerations of innocent people serving long sentences in Texas prisons, the 80th Texas Legislature is about to close seven days from now having passed virtually no legislation to address the problem, and indeed possibly having passed several bills that make it more likely that innocent people will be convicted.

That's why I was sad to see SB 799 by Ellis died in the Calendars committee last night - the bill would have created a study group to develop best practices for eyewitness identification. That said, the folks on the study group may not have been the best people to develop these best practices, anyway (in particular the TCLEOSE director and Police Chiefs Association President's participation would have made the group pretty politicized).

An unfortunate turn, but as Henson points out, legislation is not the only solution:

Texas doesn't need to wait for legislation to study this issue and develop recommendations. Police could rely on the work of other states like California which developed reform recommendations for lineup procedures last year. And at the capitol, one of the Texas legislative committees concerned with criminal justice should make the issue the subject of an "interim study," or a topic the standing committees research in-depth in between regular legislative sessions.

Finally:

Wherever or however it happens, the failure of SB 799 and SB 263 (Texas' Innocence Commission legislation) to pass should not end the discussion of how to prevent more wrongful convictions in Texas. It's my hope, in fact, that these bills' death serves to launch that discussion at the Texas Legislature in a serious way.

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Lineup Reform in Texas

Add Texas to the growing list of states where police lineup reform has made its way to the legislature. Texas's lineup reform bill, SB 799 (PDF), is scheduled for a public hearing today.

According to Texas blogger Scott Henson over at Grits for Breakfast, Dallas County leads the nation in post-conviction DNA exonerations. In a state ripe for reform, this bill would require:

The office of the attorney general, in consultation with state and local law enforcement agencies and scientific experts in witness memory, shall develop, adopt, and disseminate to all state and local law enforcement agencies in this state comprehensive written policies and procedures and associated training materials regarding the administration of photograph and live lineup identification procedures . . .

Beyond this general mandate, the bill goes into some detail in key areas. It would require that detailed instructions be given to witnesses prior to any lineup procedure, including the critical instruction that the perpetrator might or might not be present. It would also be conducted in double-blind format, where the administrator is a "neutral" party who is not aware of the identity of the suspect, "where practicable." Where not practicable, however, the bill provides detailed guidance on the next-best procedure. In addition to requiring that an explanation be given for the reason the procedure was not conducted in double-blind format, the administrator must use an alternative method that prevents him or her from being aware of which lineup member is being viewed at a given time -- either through the use of computer software, the "folder method," or "another method designed to achieve a neutral administration of the procedure."

This is a well-drafted bill that explicitly hits the core best practices -- in addition to the above, it requires that a detailed confidence statement be taken from a witness in her own words, immediately following an ID, it prohibits lineups including more than one suspect, prohibits commentary or feedback by the administrator during or after the procedure, and even prevents anyone familiar with the identity of the suspect from being present during the procedure. It also goes into some detail regarding the importance of not making the suspect stand out, matching up features from the original witness description, includes a requirement for detailed documentation relating to the procedure, whether or not an ID is made, and other good stuff.

Check out the bill here. We'll be following this one as it makes its way through the TX Senate.


UPDATE: It turns out that James Curtis Giles, expected to be the 13th DNA exoneree from Dallas County, will be appearing today with Barry Scheck at the state capitol in Austin, to speak at senate hearings in support of the eyewitness bill and other innocence-protection legislation on the agenda. More on Mr. Giles hopeful exoneration at the Dallas Morning News. The Texas Court of Criminal Appeals must still give its approval before the exoneration is final, but all signs point in the right direction.

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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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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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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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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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