Eyewitness Reforms Meet "Resistance from the Very People Who Should Care Most about Justice for All"

Professor Katherine Ramsland of DeSales University has a new commentary in the Philadelphia Inquirer on the widespread resistance among law enforcement officers to policy changes designed to make law enforcement more accurate and effective. At the top of that list is a set of proposed measures known to make identification procedures more accurate, and less likely to pollute witness memory with police suspicion.

Prof. Ramsland likens the resistance that advocates for changes in lineup procedures are facing today, to police resistance to mandatory Miranda warnings in the 1960s.

They said that articulating those rights hampered their ability to get confessions and released more criminals on technicalities. In other words, if an arresting officer forgot the warning or failed to notice that the subject was not competent enough to waive protected rights, the case could be tossed.

The climate is much the same surrounding efforts to modify lineup procedures to comport with research that has pointed the way to a more reliable set of practices which are less likely to result in misidentification, and ultimately wrongful conviction.

Now we are seeing a host of new policy changes on the horizon. These changes will help minimize false convictions. And again, we see resistance from the very people who should care most about justice for all. It is almost as if the law-enforcement establishment believes it is more important to convict and then let the system sort it out. But those who believe this have not fully grasped the harm some current procedures have perpetrated on the innocent. Law enforcement should welcome - not reject - changes designed to protect.

(Emphasis mine.)

Ramsland also details what we know about wrongful convictions resulting from misidentification, and the likelihood that the problem is far more widespread than the DNA exonerations are able to reveal.

Prof. Ramsland's frustration at the resistance to the clear mandate of the social science community that has scrutinized these problems for over three decades is unmistakable.

It is almost as if law enforcement does not want to identify and exonerate the innocent. Eight states do not yet mandate giving inmates postconviction access to DNA analysis. Five states defeated bills intended to change policies on eyewitness identification. The California State Sheriff's Association opposes bills that require officials to record interrogations and corroborate informant information; the purported fear is that such procedures would create loopholes for defense attorneys to exploit. This organization also opposes new procedures for suspect lineups. Research has revealed that witnesses, when asked to pick from lineups, make comparisons among those lined up, which can alter their memory. Or they may simply choose the one who "looks" criminal. (The recent study by the Chicago police department that "proved" that current methods worked just fine was significantly flawed.)

(Emphasis mine.)

The English jurist William Blackstone famously said: "Better that 10 guilty persons escape than that one innocent suffer." Apparently that's literary fluff to some people. They should talk to exonerated convicts.

That doesn't sound like a bad idea.

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Georgia Cops Resist Reform, Defend Flawed Status Quo

In the second day of hearings by the Georgia House committee organized to consider a new law mandating that police adhere to well-established best practices when conducting eyewitness lineup procedures, law enforcement officials were out in full force in opposition.

Given the total lack of empirical support for that position, cops are left to rely on baseless claims in defense of the status quo:

Monday, Chief Louis M. Dekmar of LaGrange spoke for the Georgia Association of Chiefs of Police when he said many questions remain about university studies into eyewitness misidentification. For instance, real witnesses are more careful about the consequences of a mistaken identification than students are when they volunteer to participate in an experiment.

"Folks don't just jump out there and make an identification unless they're certain," he said.

Of course, we know the opposite is true from both the scores of wrongful convictions resulting from witnesses doing exactly that, and from numerous studies showing a striking lack of correlation between witness "certainty" and actual accuracy.

Further,

Harris County Sheriff Mike Jolley, president of the Georgia Sheriffs Association, told the committee that a single law would prevent witness procedures from continuing to improve when research determines yet a better way to conduct lineups. That's why individual police agencies need the freedom to write their own policies and to update them when needed.

If that concern bore any resemblance to the reality in the state, the argument might carry with it some force. Unfortunately, as we reported recently, most Georgia cops have no eyewitness guidelines to speak of.

The Sherriff went on:

Plus, some county sheriffs' offices only have four deputies, too few to conduct elaborate lineup procedures if required by law, he said.

The "resources" argument falls equally flat, as zero-cost methods (PDF) (see "folder method," p. 10) have been developed, which are the antithesis of "elaborate" and can be implemented with no more than a stack of photographs and manilla folders and a few minutes of training.

The law mandating best practices is needed precisely because Georgia cops have failed to take action to curb the state's wrongful conviction problem on their own. They have known about the problem for long enough to take action, and they have not done so. Hopefully Georgia legislators will see the debate for what it is, and move Georgia police practices into the present day by passing this law.

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Lipstick on a Pig, Part Deux: Scientists vs. Prosecutors

We reported recently that the so-called "Illinois Report" on lineup procedures was found to be unscientific, unreliable, and generally adds no value to the dialogue on the most accurate and reliable police lineup procedures. Today, the Chicago Tribune is running a story, in the wake of the definitive debunking (PDF) of that police-sponsored report from Chicago, suggesting that the best lineup format has yet to be identified.

Two problems with this characterization strike me with equal force. The first problem is that the "disagreement" is one of conflicting agendas, not unresolved questions of science. Scientists, with their well-known bias in favor of facts, are in general agreement that sequential lineup procedures are less likely to put innocent people in prison. Every peer reviewed study on the topic bears out this finding. A meta-analysis (PDF) was conducted by leading psychologists to extrapolate the comparative accuracy rates of the two types of procedures, and the clear finding was that sequential lineups are far less likely to result in an innocent person being identified. When "moderator variables" are considered, the two methods are also largely equivalent in their likelihood of bringing about a correct selection of the actual perpetrator, when he is present in the lineup. The general consensus among scientists is that "sequential lineups are superior."

To the extent that there is disagreement on this point, it is not a disagreement among scientists or any sort of conflict in empirical findings. Rather, it is an objection by prosecutors at the audacity of scientists who dare to suggest that science should inform criminal justice policy. After all, the Chicago Police Department has been doing lineups for decades. Who are these scientists to tell them their procedures are flawed? It's like a bunch of M.D.s telling cigarette manufacturers that smoking causes cancer.

So the Illinois Report manages yet again to avert attention from the uncontroverted findings of social scientists, namely that sequential lineups are less likely to result in wrongful convictions. To characterize the status of the debate as "not yet resolved" is to fall prey to the prosecutorial agenda to resist reform at any cost; it's tantamount to concluding that the smoking/cancer link has yet to be established because Philip Morris executives find that fact to be in conflict with their profit motive. Except that it's a little less clear what interest is being protected by the prosecutors who resist lineup reforms, since presumably they share the interest in prosecuting actual criminals, while protecting the innocent.

The other problem with the Chicago Tribune's framing of the debate on lineup reform is the myopia with respect to the simultaneous-vs.-sequential question. The fact is, the recommendation that lineups be presented one person at a time rather than all at once is a single bullet point amongst a long list of recommendations to make lineup procedures more reliable. To borrow some words from eyewitness researcher Gary Wells:

[L]et's not become myopic because of the sequential lineup. Let’s not forget that we need to institute a broad range of improvements to lineup procedures that make the terms "biased procedure" and "motions to suppress based on suggestive procedures" mere memories from the past. I continue to be amazed as to why prosecutors are not at the forefront of this effort to jettison suggestive procedures. Do prosecutors like to have these "motion to suppress identification" hearings? Of course not. Would not prosecutors prefer to have cleaner identifications to carry forward to trial? Of course they would. Are prosecutors at the forefront of efforts to: (1) improve instructions to witnesses, (2) select better fillers for lineups, (3) implement procedures that eliminate influence from the lineup administrator, (4) assess eyewitness certainty in an unbiased manner, (5) make sure that full records are kept? The answers are (1) no, (2) no, (3) no, (4) no, (5) no. I apologize to my prosecutor friends in Clinton, Iowa, in New Jersey, and in other places who are clear exceptions to this characterization of prosecutors not assuming leadership roles on identification issues. Still, the failure of law enforcement to significantly improve their lineup procedures is primarily because prosecutors have not pressed for these improvements.

With 27 wrongful convictions revealed by the Innocence Project in Illinois alone -- 19 of which resulting from faulty eyewitness evidence -- you'd think Illinois prosecutors would be eager to put themselves at the forefront of the reform effort, rather than fighting tooth-and-nail to preserve status quo procedures with a long track record of failure.

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New Lineup Rules Pass in NC

With the passage of the Eyewitness Identification Reform Act earlier this week, police across North Carolina are now required to adhere to certain best practices with respect to lineup procedures, which have been shown to reduce the likelihood that innocent people will be identified from a lineup.

The reform measures include "blind" administration of lineups, where someone not connected to the case who doesn't know which person is the suspect will be required to conduct the lineup, to prevent that person's knowledge from sending inadvertent cues to the witness. Lineups must also be conducted sequentially (one photo at a time) as opposed to simultaneously, which has been shown to reduce the problem of "relative judgments," where witnesses have been observed to pick the person who looks "most like" the culprit from the group, even when, in many cases, that person is innocent. Sequential presentation of lineup members has been shown to reduce guessing in general, which is thought to be a primary cause of eyewitness-related wrongful conviction.

Under the new legislation, lineup administrators in North Carolina will also be required to take confidence statements from witnesses, in their own words, immediately following an ID. Administrators are also prohibited from giving any feedback or making comments of any kind prior to recording that confidence statement, in order to reduce the likelihood that the witness's confidence will be distorted by intervening influences.

Lineups in North Carolina must also be videotaped whenever practical, and when not, an explanation must be documented, in addition to rigorous detail relating to the lineup procedure itself, including retention of the photographs themselves in photo lineups, the source of the photos, the identities of the individuals, and any words used by the witness to describe an identification.

Remedies for noncompliance include, at the court's discretion, suppression of ID evidence at trial, as well as jury instructions on the effect of noncompliance on the reliability of identification evidence.

The findings of the General Assembly are also interesting:

(1) Throughout the nation and in North Carolina innocent people have been accused or convicted of serious crimes because of mistaken eyewitness identification.

(2) Mistaken lineup identifications distract law enforcement agencies from apprehending perpetrators.

(3) Reports of the United States Department of Justice, the American Bar Association, 25 years of peer‑reviewed scientific research, and the experiences of practitioners across the country indicate that the accuracy of eyewitness identification can be greatly enhanced by the use of "blind" administrators, instructions to the witness, confidence statements, and the proper composition of lineups.

The text of the bill is here. More media coverage here.

As North Carolina joins the growing list of states adopting similar legislation, it is becoming increasingly clear that lawmakers are running out of patience for remedying the wrongful conviction problem. Let's hope states like Georgia will be quick to follow suit, despite Georgia and other states' prosecutors' continued resistance to practical measures that are demonstrated to reduce the conviction of innocents.

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Troy Davis Case Spotlights Eyewitness Fallibility, Drives Georgia Reform Effort

The Atlanta Journal-Constitution has a story today on the fallibility of eyewitness testimony, in connection with the ongoing Troy Davis case. The article highlights the systemic problem of wrongful convictions resulting from faulty eyewitness testimony, including all six DNA exonerations in Georgia over the last eight years, all of which resulted from inaccurate eyewitness evidence.

To explore the laundry list of problems with the eyewitness evidence in Mr. Davis' case, the defense team hired cognitive psychologist and eyewitness expert Dr. Jeffrey Neuschatz. Needless to say, he "found numerous concerns with the identification of Davis as the man who fatally shot Officer Mark Allen MacPhail in a Burger King parking lot on a summer night in Savannah."

Whether or not Neuschatz's analysis will be enough to sway the Board of Pardons and Paroles to permanently stay Mr. Davis' death sentence remains an open question.

Neuschatz's report has been filed with both the parole board and in Davis' court appeals for a new trial. Neuschatz analyzed the eyewitness identifications using contemporary standards to determine if there were flaws in the procedures used to implicate Davis.

Among other factors, Neuschatz highlighted issues present in the Davis case relating to the "mugshot effect (PDF) and the "weapon-focus" effect:

Neuschatz concluded that one witness, Dorothy Lee Ferrell, told police she had seen Davis' picture on the news as a suspect in MacPhail's slaying. "Prior exposure to the suspect's picture increases the likelihood that the suspect will be picked out of the lineup," Neuschatz wrote.

Neuschatz also made other observations, including: When a weapon is involved in a crime, witnesses tend to focus on it, rather than the suspect; the passage of time, in many cases 10 days, between the crime and the identification of Davis. Another witness testified that he had been drinking on the night of the shooting.

The Davis case has also given momentum to an ongoing effort to reform police procedures in Georgia relating to the collection of eyewitness evidence. Following the sixth DNA exoneration in Georgia earlier this year, by which Willie Williams was released from prison after serving 21 years for a rape he didn't commit, state Rep. Stephanie Stuckey Benfield (D-Atlanta) attempted to get a bill passed that would have required Georgia police to use procedures that have been demonstrated to make eyewitness evidence more reliable. Predictably, prosecutors fought the legislation, and for now, managed to win the day.

Despite the legislative loss, House Speaker Glenn Richardson supports the reforms, and appointed Rep. Benfield to chair a committee to investigate the connection between flawed police identification procedures and the systemic wrongful conviction problem in the state. Hearings are scheduled for the fall, where Barry Scheck of the Innocence Project, among others, is expected to testify.

The Georgia Innocence Project, which has played a role in three of the state's exonerations, is promoting lineup standards.

"In all six of those [Georgia] cases, the victims, and sometimes witnesses as well, incorrectly identified the attackers," said Lisa George, spokeswoman for the project. "It's not that these victims or witnesses were lying; it's just that they got it wrong. Human memory is extremely fallible."

Predictably, Rick Malone, executive director of the Prosecuting Attorneys' Council of Georgia, said "prosecutors don't object to better standards for lineups, but they don't want them codified into state law." In other words, Georgia prosecutors support preventing the conviction of innocent people in theory, just not in practice.

Fortunately, cases like those of Mr. Davis and Mr. Williams are driving the effort to reform police procedures that are unmistakably linked to mistaken eyewitness testimony, and inform those procedures with well-settled scientific findings that reveal a better, more reliable methodology that is less likely to distort the memories of well-meaning witnesses. It's time for Georgia prosecutors to catch up, and stop standing in the way of efforts to keep innocent people out of prison.

In related news, check out Emory Law School's new project to Save Troy Davis, sponsored by their Indigent Criminal Defense Clinic.

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NO WAY TO PUT LIPSTICK ON THIS PIG: PANEL OF SCIENTIFIC EXPERTS FINDS THAT HIGHLY-PUBLICIZED CHICAGO POLICE STUDY OF ID PROCEDURES IS JUNK SCIENCE

Approximately a year ago, a highly-publicized study out of Illinois claimed to have raised questions about some of the procedural reforms being adopted around the country to improve the handling of eyewitness evidence. The study, taking the form of a pilot project spearheaded by Chicago police across three counties, purported to reveal that current identification procedures protected against mistaken identifications better than reforms (PDF) proposed by respected social scientists, based on extensive research on eyewitness memory. In other words, the Chicago police were happy to report that, notwithstanding the 19 wrongful convictions recorded in Illinois that resulted from faulty eyewitness evidence, everything was just fine and no pesky (scientific) reforms were needed.

Despite the fact that the "report" trumpeting the study was never subjected to peer review, and despite the fact that it was authored by a lawyer for by the very same Chicago police department that had fought reforms in Illinois for many years, these "findings" were trumpeted on the front page of the New York Times and have since served as serious impediments to reform in Legislatures around the country.

But something seemed rotten in Illinois, since the study's results were at odds with the recommendations of nearly every scientist who had studied the issue and the methodology underlying the pilot project appeared something short of scientific. According to one article on the topic, "the design of the project contained so many fundamental flaws that it is fair to wonder whether its sole purpose was to inject confusion into the debate about the efficacy of sequential double-blind procedures and to thereby prevent adoption of the reforms." Leading eyewitness researcher Gary Wells described the study's methodology as "extremely problematic."

Bearing out these suspicions, a new analysis was released yesterday, in which a "Blue Ribbon" panel of social science luminaries concluded that the study was "crippled by a design flaw that made the study's conclusions a dangerous basis for shaping public policy." This scholarly article does a fine job of showing that the Illinois pilot project on eyewitness lineup procedures was a sham, and a scandalous waste of taxpayer dollars. On that point, six out of six respected scholars agree.

The panel now weighing in includes Nobel Laureate Daniel Kahneman of Princeton and Harvard Professor and author Daniel Schachter, and other eminent scholars across the social sciences. In their own words, (PDF) "the design [of the Illinois study] guaranteed that most outcomes would be difficult or impossible to interpret," and the study's fundamental flaw has "devastating consequences" with respect to its scientific merits.

The story of the Chicago ID report is, in other words, one that is sadly familiar these days. Facts are cooked to suit the theory. The cooked facts are then trumpeted to an uncritical media, and the public understandably gives its officials the benefit of the doubt. But sooner or later the truth comes out, as it did here when the Illinois "study" received the sort of critical scientific analysis that should have occurred all along. In fact, this was just the sort of scientific rigor that the Legislature ordered when it appropriated tax-payer funds to conduct the study in the first place.

We now know that the failure to heed the Legislature's guidance resulted in the waste of many taxpayer dollars and, at least as importantly, the waste of a critical opportunity to determine how to fix a system that is currently relying too heavily on demonstrably mistaken eyewitness testimony. As the scientists suggest, the failure of Illinois now means that we need to await the results of properly-conducted studies in other jurisdictions to obtain this information.

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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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Eyewitness ID Reform on NPR Today

Just got wind that NPR's show "To the Point" will be devoting today's show (live at noon on the west coast) to DNA and wrongful convictions, with a discussion on the reliability of eyewitness evidence and proposed reforms to police procedures to minimize future errors. Might be worth checking out:

DNA and Wrongful Convictions
MON MAY 7, 2007

After years in prison for crimes they didn't commit, hundreds of innocent people have been exonerated by DNA testing. Monday, on To the Point, can line-ups and other testimony from eye-witnesses be trusted? How can other mistakes be corrected? Is a flawed criminal justice system being repaired?

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Exonerations Spur Reform Nationwide

Law.com has a nice current snapshot of the nationwide movement to reform eyewitness ID procedures, which continues to gain traction in response to the mounting number of DNA exonerations.

One common theme throughout the proposed reform measures is a requirement for blind lineup administrators, or an alternative method that has the same effect of preventing the person conducting the lineup from influencing the witness's choice. Many of the proposed bills would also require cautionary instructions prior to any lineup procedure, in which witnesses are alerted that the perpetrator may or may not be present in the lineup. This instruction alone has been shown to reduce false IDs by as much as 41.6%, in lineups where right guy isn't present in the lineup.

Some of the other proposed reforms are less targeted at specific practices, and instead just require that law enforcement agencies develop written policies governing eyewitness procedures, in keeping with research on factors that are known to make lineups more or less reliable.

According to Scott Ehlers of the National Association of Criminal Defense Lawyers (NACDL):

Bills seem to have been going further this year than in the past. Exonerations and the wrongful convictions: I think that is really pushing the issue.

Ehlers mentions the West Virginia eyewitness reform bill which is now a law, as well as eyewitness procedure best-practices bills being proposed in California and Georgia, which Ehlers says have a good chance of passing as well. Overall, 16 bills proposing eyewitness ID reform were submitted across 10 different states this legislative session.

At the same time that reforms have been spreading nationwide, controversy over a study conducted in Illinois continues to draw attention to the same issues. A lawsuit filed by NACDL seeks to expose what many have suggested were serious flaws in the study's methodology, which its authors suggest support the status quo -- the same status quo which we know has resulted in wrongful conviction after wrongful conviction. According to Ezekiel Edwards of the Innocence Project, the questionable study from Illinois has only served to stimulate debate, and in conjunction with a continuing wave of exonerations, has helped push reform efforts forward.

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California Panel Pushes for ID Reform (Again)

The San Jose Mercury News is reporting this morning that a panel of justice experts has convened again to pressure the state to adopt a collection of reforms aimed at reducing wrongful convictions. The panel, formally known as the California Commission on the Fair Administration of Justice, includes at least one defense attorney (who is also a law prof), and a former AG.

Last year, the same panel convened to push the same reforms, one of which being a bill to revamp police lineup procedures to reduce false identifications. The reforms met with widespread support -- "virtual unanimity" -- among prosecutors, defense attorneys, and victims-rights advocates. The bills (also including recorded interrogations, and a requirement that jailhouse snitch testimony be corroborated (!)) appeared to be winning propositions for everyone with an interest. Innocent people would be less likely to end up in prison. Victims and prosecutors would be more likely to nail the right guy. Defense lawyers would be less likely to face cases involving irreparably bad ID procedures that are notoriously insurmountable in court.

Last year, the bills were approved by the California Legislature, but vetoed by the governor with some inexplicable language about how the bills "denie[d] the public and their elected representatives the chance to approve or deny a statewide policy that could have a life-altering impact on an individual participating in our justice system." Curiously, the bills appeared to be aimed at doing just the opposite -- namely empowering the public and their elected representatives to approve exactly such a statewide police, with exactly such a life-altering impact on the innocent people who come in contact with the justice system.

Will Arnold put the doublespeak aside and "governate" for a change? We'll be keeping watch. Here's the bill in PDF.

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