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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Violent Encounters, Cops, and the Frailty of Human Memory

We recently stumbled across a joint DOJ/FBI publication called Violent Encounters: A Study of Felonious Assaults on our Nation's Law Enforcement Officers (Aug. 2006), which purports to "offer insights that may help to improve safety-training techniques." One source of insight happens to be the same social science research on which reform advocates rely to show the fallibility of human memory in the eyewitness context.

Chapter 5 of this training manual is titled "Perception -- Its Role in the Violent Encounter." The chapter examines a collection actual violent encounters undergone by police officers, and chronicles a laundry list of cognitive errors that were associated with the events in the officers' memories. The chapter reads like a greatest-hits of factors tending to reduce the reliability of eyewitness memory, so it is of particular interest that this is coming from a law enforcement publication. Defense lawyers are repeatedly confronted with the critique that these effects have never been corroborated by real field studies, and are thus irrelevant to real-world scenarios -- as if the stressfulness of having a gun in one's face in real life would somehow invert the well-known detrimental effect of a weapon and stress on eyewitness memory in a lab setting. This publication serves as a definitive rebuttal of that critique, where both the FBI and DOJ are on record acknowledging the negative effects of the same factors on the memory of their own officers.

The chapter covers a range of topics, including (1) the reconstructive nature of memory; (2) the mutability of memory -- in particular as a result of improper questioning; (3) the effect of stress on perception and recall; (4) weapon-focus; (5) the tendency to overestimate the duration of a criminal incident; and (6) other perceptual distortions.

This publication is a substantial concession from the law enforcement community that the psychological phenomena that prosecutors routinely dismiss as academic curiosities have real world application, as defense attorneys have known and argued for years.

(All credit to Kate for this great catch.)

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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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