Houston City Council "Should Be Weary of Making Apologies to Innocent People"

According to former Texas appellate judge Michol O'Connor, the time has passed to wonder about what can be done to address Houston's notorious wrongful conviction problem, just as the time has passed to wait for the Houston Police Department to fix the problems on their own. He describes status quo police lineup procedures as "a suspect process" in dire need of reform. Yet despite clear evidence of a simple solution, O'Connor points out, HPD as yet refuses to take the necessary measures:

Repeated studies have shown that the traditional lineup procedures produce mistaken identifications. Despite this, HPD continues to use those very same procedures: live and photo lineups, usually conducted by one of the officers involved in the investigation or the arrest of the suspect.

With blind lineup procedures -- where the person conducting the lineup does not know the identity of the suspect, which is unequivocally supported by everyone who has studied lineup problems -- at the top of his list, O'Connor minces no words:

City Council should force HPD to adopt these procedures

Finally, his frustration with the people with the power to fix the problem is unmistakable:

City leaders should be weary of making apologies to innocent people who were convicted of crimes they did not commit. By requiring HPD to reform its lineup procedures, the city can reduce the risk of wrongful convictions without spending millions of dollars. The Chronicle headline was right: Something needs to be done. Now.

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Dallas, TX: Wrongful Conviction Leader Come Poster Child for Eyewitness Reform, or Illinois All Over Again?

Dallas County, notorious for its status as the county with the worst wrongful conviction record in the country, is now, at least ostensibly, making efforts to remedy this systemic problem. Eleven of the 13 wrongful convictions uncovered by the Innocence Project in Dallas County in the last six years resulted from faulty eyewitness evidence collected through flawed police procedures. Acknowledging that problem, Dallas county is taking part in a $300,000 federally funded study, aimed at identifying the most reliable lineup procedures by way of a pilot program.

State Senator Rodney Ellis, from Houston, has been involved in reform efforts in the state for some time.

"Dallas ought to be a laboratory – a poster child for reform," said state Sen. Rodney Ellis, D-Houston, who unsuccessfully tried to get the state Legislature to set up a working group to come up with a model policy for lineup procedures.

He lauded the department's willingness to get involved: "We all ought to be interested in law and order, but it would certainly be nice to get the right one."

One of the procedural reforms being tested is the "sequential double-blind" method recommended by social scientists who have studied lineup procedures in connection with eyewitness memory.

The starting point of any lineup reform effort should be an across-the-board requirement that all lineups be conducted blindly, as it is well-established across the sciences that people conducting experiments will inadvertently (if not intentionally) influence the outcome, when there is an expected or anticipated result -- that is, when the person conducting the lineup knows the identity of the suspect.

Testing the "accuracy" of blind procedures vs. non-blind is inherently problematic, however, without some sort of "ground truth" against which to compare the results. The likely outcome is quite likely to be that witnesses choose the police suspect more often when lineups are not conducted blindly, which does no more than confirm the influence of administrator bias. The problem is knowing whether or not the suspect is the actual culprit. In fact, if all we were after were a procedure most likely to result in an identification of the police suspect, we could just bypass the identification procedure altogether and move straight from suspicion to indictment. But hopefully the good people of Dallas County will assess the results of this project in good faith and account for this basic requirement in their analysis.

Unfortunately, the synopsis provided by the Dallas Morning News isn't encouraging on this front:

The method that leads to the fewest identifications of people who are not the suspected guilty party is expected to be the preferred method for conducting lineups.

In other words, if the procedure where the cop is pointing at the suspect and salivating like Pavlov's dog more often results in that person being picked -- with no knowledge of whether or not that person is actually the perpetrator -- then that procedure will be deemed superior. Hopefully this apparent fundamental flaw in the conception of this pilot project is either a reporting mistake, or if an actual reflection of the intended assessment metric, will be cured before the first the first tax dollar is wasted.

Another component being tested is the sequential presentation of the photos, which social scientists recommend, but caution should only be done if the lineup is also conducted blindly. Sequential presentation of lineup photos by an administrator who is aware of the identity of the suspect is more dangerous than even the traditional "six-pack" photo array, because the inadvertent influence of the administrator takes on heightened power when the suspect's photo is displayed by itself. Nonetheless, the Dallas project apparently intends to spend tax money testing this obviously flawed format as well.

The rational approach would be to treat blind not as a variable, but as a baseline. Blind procedures are scientific; non-blind are not. One protects against bias; one does not. It should be that simple, yet we see another study design that refuses to acknowledge this fundamental problem that continues to infect the reform dialogue.

But moving ahead. James Doyle of the Center for Modern Forensic Practice at the John Jay College of Criminal Justice sheds some light on the reasoning behind the sequential (blind) procedure:

Showing pictures one at a time provides more accurate results, Mr. Doyle said, because the method is akin to giving a true-false test.

"They have to compare that picture with their memory of the crime," he said "They can't compare the pictures with each other."

And on the pitfalls of the simultaneous format:

But many psychologists consider the traditional method to be similar to conducting a multiple choice test where "none of the above doesn't seem like a possible answer," said James Doyle, director of the Center for Modern Forensic Practice at the John Jay College of Criminal Justice in New York.

"What the psychologists believe is happening is that witnesses will pick out the person who looks most like the perpetrator by comparing the people in the array to each other," Mr. Doyle said.

Dallas County DA Craig Watkins claims to be committed to doing what it takes to fix the system:

"It's time for us to take a really close look at what we have done in the past and really make the necessary changes so we don't make the same mistakes," said Dallas County District Attorney Craig Watkins, who recently created a position to oversee DNA evidence and conviction integrity.

And the Assistant Police Chief as well:

"Everybody in law enforcement wants to use the best system," said Dallas police Assistant Chief Ron Waldrop, commander of the criminal investigations bureau. "Once it's been shown scientifically which is the best system, I think everybody will move to that system."

Then again, no one disputes that the most basic reform measure, namely blind procedures, is unequivocally less likely to result in wrongful convictions. Or at least no one does so with a straight face. This recommendation is a simple suggestion that one of the most basic lessons of science be applied to police procedures, based on decades of uncontroverted research across the sciences, and yet police departments and DA offices across the country continue to resist.

Let's hope Dallas County will count itself among those reversing the anti-science trend, and that this pilot project isn't another squandered opportunity to fix a serious and widespread problem.

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New Zealand Government Funds Novel Eyewitness Research

The New Zealand Herald is reporting today that a New Zealand researcher will receive a government-funded grant in the amount of $170,000 to study factors affecting the reliability of eyewitness memory, in support of an effort to reduce wrongful convictions in the country. Dr. Rachel Zajac of the University of Otago will use some of the money to test a lineup modification on adults that was previously tested on children:

A previous study found that false identifications decreased dramatically when children were given the opportunity to point to an additional photograph depicting a silhouetted figure with a question mark superimposed, rather than verbally identifying a person in a line-up.

Following the success of the "non-pick pick" option in the earlier study with children, Dr. Zajac will conduct a similar test to determine if the same reduction in false IDs carries over when the modification is tested on adults. This strikes me as sort of a visual take on the "you don't have to pick anyone" lineup instruction, which could conceivably serve as a stronger deterrent to guessing than the instruction alone. (It turns out the old Rush lyric applies as well to lineups as anything else: If you choose not to decide, you still have made a choice.)

Since a witness actually sees the "non-pick" as one of the several choices presented in this test condition, it seems possible that not choosing anyone will appear as a more viable option in cases where witnesses are genuinely uncertain, as compared to a lineup comprised solely of affirmative choices, where the only acknowledgment of the non-choice as an option was an instruction read prior to viewing. I'll be interested to see the results.

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"They may as well have made him wear a target on his chest or a sign over his head saying 'pick me,'" says US federal court

I just came across an interesting decision issued last month from the U.S. District Court for the Northern District of Illinois, in which the court considered (and rejected) eyewitness evidence in support of an extradition request by the Republic of Poland. In re Mazur, Slip Copy, 2007 WL 2122401 (N.D.Ill. 2007).

The evidence presented in support of the government's probable cause showing included a live lineup of four men. Three of the men were "dressed in dark, subdued colors, whereas Mr. Mazur is wearing a bright red, slightly oversized jacket" -- a jacket "foisted" on Mr. Mazur by the authorities "in an effort to make his dress look less formal." In the words of the district court, "They may as well have made him wear a target on his chest or a sign over his head saying 'pick me.'" The court went on to say that the ID procedure employed by Polish authorities "would never pass muster in this country," that the lineup was unduly suggestive and "highly suspect." It further found that "the government's reliance on this identification is shocking and offensive." Id. at *24.

If only our courts could save some of that disdain for the procedures routinely done by our own police.

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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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Lineup Reforms in Real Life

There are a number of law enforcement agencies out there with real lineup reforms in action -- like Hennepin County, Minnesota, and Northampton, Massachusetts (PDF), among others -- and in every case that we're aware of where police departments have enacted these reforms, the police themselves have become advocates for them. The reality is, as they will be the first to tell you, that implementing basic reforms like double-blind procedures and cautionary instructions not only make for more reliable identifications, but also make lineup procedures less vulnerable to challenges in court.

We just became aware of reforms currently in place (PDF) in Santa Clara County, California -- a county spanning 15 cities and towns presumably with widely varying law enforcement resources, for those who would claim that the reforms are only feasible on a big city budget.

A great quote from the president of the Police Chiefs' Association of Santa Clara County, on the importance of using sequential lineups (showing one photo at a time) over simultaneous (six or more photos at once) ones:

By studying cases where DNA has proven that innocent people have been convicted, we have learned that there are many causes of false convictions. One cause - cases of good witnesses honestly but falsely making an identification. Exhaustive studies have found that witnesses are much more likely to identify the guilty suspect if the lineup is sequential. Under traditional simultaneous lineups, some witnesses will inadvertently begin to compare the photos to one another instead of comparing the photo to their
memory. Consequently, the identifications are not as reliable as those conducted sequentially.

And on the rationale for using an administrator who does not know the identity of the suspect:

The DOJ study found that even the most experienced officer can inadvertently give subconscious hints to the witness to identify the suspect. This can result in false identification. This change brings us in line with other professionals. For example, doctors who are conducting medical research never know
whether their patient is receiving the new experimental drug or a placebo. This way they can never be accused of influencing the results. By using these new protocols we will bring our practice in line with other professionals.

Seems like a level-headed way to look at it to me.

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The Power of Suggestion (and a Very Weird Lineup)

The Wisconsin State Journal reports this morning on an old case that's come back into the light for a re-trial, the facts of which read more like Midnight in the Garden of Good and Evil meets Serpent and the Rainbow than a case in a US criminal court. It's not quite a voodoo priestess making potions in Bonaventure Cemetery in the twilight, but in some key ways, it's not far off.

The author makes reference to a police lineup that "involved practices that would likely be unusual for police today." My first reaction was try me, because when you spend a certain amount of time every week scouring case law for weird eyewitness procedures, you tend to find some pretty weird eyewitness procedures. But Mr. Treleven was right. These procedures are even weirder than what I'd seen.

But a little background about the case, just to set the stage. Back in the spring of 1980, a UW-Madison student named Charise Kamps was found raped and strangled in her apartment, just after she finished her first year of college. One eyewitness, a man named Marcel Del Rico -- who at the time was living as a woman named Ricci Orebia -- claimed to have seen someone leaving Kamp's apartment that night, but said there was no way she could make an ID.

But the cops had a suspect, and the only thing they lacked was evidence of any kind. So they put their heads together and came up with a plan that was bound to get them a nice reliable ID: they hypnotized the witness, and then subjected her to a live lineup on the street, which took the form of parading the suspect, along with cops wearing wigs, in front of the witness's porch. Astonishingly, the witness picked the man who wasn't wearing a wig. But even under hypnosis, he knew the lineup was rigged, and testified to that effect at trial. Nonetheless, he "gasped" when the suspect was presented, and that gasp was enough to put Ralph Armstrong away for the last 26 years. (Notwithstanding the fact that he claimed to have been shown a photograph of the suspect at the hypnotist's office, prior to the lineup.)

Mr. Armstrong's case was reviewed in 1983, and the Wisconsin Supreme Court upheld the conviction and declared that hypnosis was a perfectly legitimate method of refreshing the memories of witnesses -- and apparently enhancing the reliability of lineups. (And I thought the Manson/Biggers reliability factors (PDF) were ill-informed.)

I could be wrong, but I'm pretty sure the lineup procedures used back in 1980 wouldn't pass muster under Wisconsin's current Model Policy and Procedure for Eyewitness Identification (PDF).

In 2005, the Wisconsin Supreme Court granted a new trial, on the strength of new DNA evidence. As psychologist Steven Clark observed in support of Mr. Armstrong's petition for review, "a gasp is not an identification."

Now, against his strong preference, Mr. Del Rico is testifying again, about the same hazy memories and bizarre police procedures. In a pre-trial hearing yesterday, his most frequent response to questions about the events back in 1980 was "I don't remember." He wrote a letter to prosecutors asking to be spared from going through this again, but it appears that his wish will not be granted.

Mr. Armstrong's case is now in the able hands of attorneys Jerome Buting, Keith Belzer, and Barry Scheck, and is set to proceed around the end of this year.

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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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Blinded by Science

I don't mean to beat a dead horse, but the adoption of blind procedures in police lineups is one of the most critical reforms being proposed to law enforcement agencies and legislatures as a means of protecting the innocent, and I think warrants a bit more attention. It may seem like common sense to anyone who took Psych 101, but somehow reform advocates still face resistance to one of its most central lessons -- namely, that humans influence each other, and more generally that our biases influence both our perception and behavior, whether we want them to or not. It's not that police officers can't be trusted, but rather that they are human -- just like scientists.

Maybe it would be useful to go back to the beginning, and take a look at what is really meant by "science" in this context, in the first place. According to Levine and Parkinson in Experimental Methods in Psychology, 5 (1993):

[S]cience is not just the organized information that has accumulated from the application of research methods, but includes the research methods themselves. The research methods are arrangements for making and interpreting observations in a manner that minimizes the probability of reaching incorrect conclusions. Thus, science could be defined as both an accumulation of knowledge and an accumulation of research methods that function to limit self-deception by serious observers. It offers some protection against the influence of prior beliefs and the various forms of bias that often are spawned by enthusiasm about an original idea.

This gets right to the point: in order for a procedure to carry with it the legitimacy of science -- and in turn, for any semblance of accuracy to be associated with its results -- it must adhere to certain methodological constraints. Levine and Parkinson found the limitation of self-deception by the observer -- that is, protecting against the insertion of the administrator's bias into the experimental results -- to be so central to the practice of science that they included it in their one-sentence definition. But the authors don't stop there. In the next section in their chapter on the foundations of the scientific method, titled "Objective Methods, Not Objective Scientists," the authors continue (p. 6):

The point has been made that good research design is necessary because personal bias can distort observations and conclusions. Yet it is occasionally implied that scientists are objective individuals, and that it is their scientific detachment and tradition of careful observation that yields the more reliable information on which the society depends. Nothing could be further from the truth.

Which is to say, there's nothing special about scientists that makes their work objective. It's that their work, when done properly, is objective by design. The same should be true for police work, particularly when it deals with suggestible human subjects.

Scientists, including psychologists, like other human beings, can (and usually do) fall in love with their own hunches, ideas, and theories. This is in fact desirable. [...] It frequently takes a great deal of passionate conviction and excitement about an idea to pursue the difficult path of confirmation. [...] Scientists can be expected to be protagonists for their own explanations, and to seek to find data in support of their own theories. On the other hand, this is what makes it so necessary for the scientist to use a set of techniques that can identify useless concepts and incorrect conclusions, and that can force the scientist to recognize unexpected facts. The scientific method and its research procedures perform this function, permitting the scientist to maintain his or her enthusiasm and the bias that this sometimes entails.

Every point in this text on the scientific method applies directly to the context of a properly designed and implemented police lineup procedure. Law enforcement agents are expected to enthusiastically pursue their hunches -- but not at the expense of the truth. This is where police can learn from scientists, when testing the memory of eyewitnesses, who are no less susceptible to suggestion than the test subjects in controlled psychology experiments.

DOUBLE-BLIND PROCEDURES

The usual way of avoiding the problem of experimenters communicating experimental purposes or desired outcomes is the use of double-blind procedures. Double-blind procedures are in effect when neither the subjects nor the experimenters in contact with the subjects are aware of the details of the experiment, the hypotheses [...] Double-blind procedures are possible when the experimenter employs experimental assistants to give instructions to the subjects. The experimenter who designs the research does not have contact with the subjects and is careful to keep the experimental assistants uninformed...

(p. 345) It seems clear why the same protective measures are important in conducting police lineups. We know that eyewitnesses are fallible on their own, and when a shaky memory is coupled with a suggestive, non-blind lineup procedure, the chance of retrieving an accurate reflection of that witness's memory of the perpetrator is small indeed.

And yet police continue to resist the adoption of these basic principles of scientific procedure. When the "Reliable Eyewitness Act" was proposed to the New Mexico legislature earlier this year, which included a provision on this simple principle, law enforcement representatives responded with headlines like "Suspect Lineup Ban Would Make Police Job Harder," and supported their position with the claim that "Current photo lineups and the way they are administered have a long, proven investigative and court record of working extremely well." This is the same "proven record" that has resulted in almost 200 DNA exonerations, 75% of which were the result of faulty eyewitness identifications flowing from the status quo.

But those who have adopted the reforms tend to become advocates themselves, and come to understand that the reform effort is not about distrust of police officers or any suggestion of bad faith on their part. Det. Lt. Ken Patenaude of Northampton, Massachusetts, whose department has been using these reforms for several years now, is one example. In his own words (PDF):

[Blind administration of lineups] is a good procedure that does not intimate the potential of police misconduct but rather eliminates any indavertent cues that the investigator may give to the witness. If the administrator of the lineup is unaware who the suspect is, he cannot unintentionally cue the witness or bolster the witness's confidence by making inappropriate comments about the witness's selection.

I'll close this part of the series with a final passage from Lt. Patenaude:

It's time for change. DNA technology and social science researchers have shown that we need to do a better job of collecting eyewitness evidence in the future. I never want to be that police officer or investigator who was responsible for convicting an innocent person of any crime. Convicting the innocent assures the guilty remain free. It also erodes the public's faith in law enforcement agencies and the criminal justice system as a whole.

Amen to that.

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The Separation of Courts and Science

One of the most basic principles of science is the objectivity of the scientist conducting a given experiment. One of the most critical tools for ensuring that objectivity, particularly in the social sciences where humans and other animals are the subjects of the hypothesis being tested, is the "double-blind" procedure -- which is to say, neither the administrator of the procedure nor its subjects should know the desired outcome in advance, as a means of protecting against intentional or unintentional cues leading subjects to reach one conclusion over another for reasons other than the effects of those variables expressly being tested. And it is well-established that good intentions on the part of the scientist are insufficient to prevent the influence of her bias.

The relevance? A police lineup is a scientific experiment: It is a test of a witness's ability to recall the identity of the perpetrator from her independent memory of the events at issue. When the administrator of the lineup knows the desired outcome of the experiment, i.e. the selection of the police suspect, the witness is reduced to a horse that can't really count, but is really good at following instructions. It is known among scientists that objectivity cannot be left to the humans conducting a given experiment. Instead, experiments must be controlled in a manner that preempts the possibility of subjective bias, and otherwise the integrity of the discipline is compromised and all results are suspect.

Police are no better at controlling unintentional cues that betray their knowledge of the identity of their suspect, than scientists are at controlling their desire for a hypothesis to be borne out empirically. However strong the commitment to truth-seeking, both share the hope that their suspicion will prove true. This is why it is crucial to the integrity of the justice system that police lineup administrators either not know the identity of the suspect or his position in the lineup, or that a procedural mechanism is put in place to create the same effect (for example, like they do in Wisconsin (PDF) -- and Hennepin County, Minnesota, and Northampton, Massachusetts).

But police and the courts continue to resist the insights of science. Just last week, a California appellate court in People v. Cisneros (2007 WL 901728 (Cal.App. 2 Dist., Mar 27, 2007)), in response to the defendant's claim that the non-blindness of the lineup administrator added to its suggestivity, came out boldly against the scientific method and held that "the identity of the person who prepared the lineup is not relevant to a determination whether the lineup was unduly suggestive."

One hundred years after Hugo Munsterberg made his pitch that the court open its doors to the sciences, statements like the above make it clear that the doors remain largely shut.

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A "Policy Review" of Eyewitness ID Procedures

The Justice Project just released a Policy Review, in which it advocates for a collection of reform measures relating to the manner in which police conduct lineup procedures.

Some of the well-settled best practices recommended in the Policy Review include:

The careful documentation of the identification, which decreases possible manipulation of witness certainty. Often, a witness’s initial confidence in an identification is rather low and provisional, but reinforcing statements and behaviors from authorities can exaggerate that certainty -- sometimes greatly -- by the time the witness testifies at trial. Documenting a witness’s "certainty statement" prior to any such feedback helps the jury to assess the eyewitness evidence appropriately.

Here's a question: if police fail to document an eyewitness identification procedure, why should the results of the mystery procedure be admissible in court? Courts don't let in DNA test results without procedural records, and the same standard should apply to eyewitness evidence collected by way of police procedures. New Jersey's high court agrees -- in State v. Delgado, it exercised its supervisory authority under the NJ constitution to require detailed records of an ID procedure as a prerequisite to admissibility, "to enhance the reliability of the factfinding process in [its] courts." Delgado, 902 A.2d 888 (N.J. 2006).

The use of cautionary instructions. Prior to presenting the lineup members, the eyewitness should be instructed that the perpetrator may or may not be included in the lineup. Cautionary instructions remove some of the pressure on the eyewitness to choose a suspect when the culprit may not be in the lineup.

According to a meta-analysis of available psychological research, cautioning witnesses with this simple instruction prior to an ID procedure reduces misidentifications by 41.6% in lineups in which the real culprit isn't present. Connecticut's high court used its supervisory authority to require this procedural safeguard, in State v. Ledbetter (PDF). New Jersey followed that decision in State v. King earlier this year, as reported here. Other courts would be well-advised to follow suit.

The effective use of fillers. Fillers, or non-suspect individuals presented to an eyewitness as part of a lineup, if chosen correctly, allow authorities to judge the reliability of an eyewitness. The effective use of fillers is critical to ensuring that an innocent individual is not identified simply because of the composition of the lineup.

Using fillers in a manner that doesn't make the suspect stand out seems like a no-brainer, yet we still have cases like Antonio Beaver, exonerated just last week after over 10 years in prison, who was wrongfully convicted based on a faulty eyewitness identification procedure in which he was the only member of the lineup with abnormal teeth, where the witness described the culprit as having a "David Letterman-like gap." Mr. Beaver didn't commit the crime, but he stood out in the lineup as the only one with abnormal teeth, a trait he just happened to share with the real culprit. A poorly designed lineup and the force of one eyewitness's testimony landed him a prison sentence of 18 years, over 10 of which he served before DNA testing exonerated him. A simple procedural safeguard could have prevented this inexcusable injustice, and unfortunately Mr. Beaver's case is not unique.

The use of an administrator who does not know which person is the suspect. Also called "double blind," this procedure prevents well-intentioned officials from giving inadvertent clues to the witness as to which person in the lineup is the police suspect.

Every scientific experiment involving human subjects is conducted in double-blind format for a reason: when humans know the desired outcome, they tend to betray that knowledge, just like Oskar Pfungst and his dutiful horse, Clever Hans, the "counting" horse. Eyewitnesses respond to human cues just like horses do, and just as Clever Hans lost his ability to count when Dr. Pfungst was concealed behind a wall, so will the likelihood that eyewitnesses will incorrectly identity a police suspect when the lineup administrator doesn't know the identity of that suspect.

And finally:

The presentation of the lineup members "sequentially" (one at a time) rather than all at once. This procedure enhances accuracy by reducing the tendency for "comparison shopping" in favor of a more direct assessment of whether the lineup members match the witness’s memory of the perpetrator. It also takes pressure off the witness to choose a suspect even though the attacker might not be in the lineup.

It is worth noting that the Innocence Project and other advocates endorse the sequential lineup methodology only when it is coupled with a blind administrator. Otherwise, the Clever Hans risk becomes even more pronounced, when cues from the lineup administrator can only be interpreted as being directed at the single person being observed by the witness at a given time.

Lots of recurring themes in the Justice Project's review, but maybe if they're repeatedly frequently enough, more law enforcement agencies, courts, and policymakers will begin to take heed. The full report is here (PDF).

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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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