Eyewitness Identification Chief Bill Brooks Norwood Police Department

Eyewitness Identification Chief Bill Brooks, Norwood Police Department

• 364 people have been exonerated through DNA. • In 37 states. • Eyewitness misidentification played a role in over 70% of convictions overturned by DNA. • And 25% of those had more than one identifying witness who ID’d the innocent suspect.

Other Impacts • In about 160, the DNA identified the true offender. • They have been CONVICTED of 152 violent crimes that occurred in the interim. – Over 80 rapes – Over 35 homicides – Over 35 other violent crimes 3

Victims are Victimized Twice “My testimony sent an innocent person to prison…. I absolutely wanted the earth to swallow me. ” Penny Beerntsen, the Rape Victim from ‘Making of a Murderer case

Contributing Causes of Wrongful Convictions

Suppression of Identification • Defense has the burden of showing by a preponderance of evidence, • That police procedure was “so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny [him] due process of law”

If Judge Finds That it Was, • Prosecution must show by clear and convincing evidence, • That witness’ ability to identify suspect has an independent source.

Independent Source • • • Witness’ certainty Opportunity to view the offender Accuracy of description (prior to ID) Suggestive influence of police procedure Exposure duration Whether the witness made previous mistakes

In-court Identifications • If the police did not conduct an out-of-court identification procedure prior to trial, • Or the results of the procedure were “less than unequivocal, ” • The trial judge may prohibit the identifying witness from identifying the defendant during trial (Comm. v. Crayton, Comm. v. Collins)

The Experiment The Crime Lineup 1 Lineup 2 10

Viscog Videos These are your eyewitnesses! Witness 1 Witness 2 13

List the Differences

Stages of Episodic Memory 1. Encoding • • • Sensation Attention Perception 2. Storage 3. Retrieval (Recall & Recognition)

What Variables Affect Eyewitness Identifications? • Estimator Variables – Beyond the control of the police. • System Variables – Controlled by the system (police).

Estimator Variables • Lighting & Distance • Exposure Duration – More exposure, more accurate identification • Weapon Focus – Can diminish with exposure duration

Estimator Variables (cont. ) • Stress – Difficult to create in lab experiments – Military experiment – some captives exposed to high stress interrogation for 40 minutes had difficulty identifying the interrogator

Estimator Variables (cont. ) • Disguise – Video of a robbery. • 45% could identify the robber later • Only 27% if he wore a knit hat during the robbery • Retention Interval – Lapse in time between crime and array.

Estimator Variables (cont. ) • Witness Intoxication – One study showed that it had no significant effect in identifying the guilty subject – But witness intoxicated at time of crime was more likely to erroneously pick a filler in target -absent line-ups

Own Race Bias • Studies have shown – May be stronger among whites – Less so for FL convenience store clerks – May increase with longer retention interval • 49% of first 250 DNA exonerations were cross-racial • Own Age Bias

Part One 23

System Variables • 2 Types – Interview & Initial Contact Issues – Identification Procedures

Patrol • Separate witnesses • “Please provide details, but don’t guess. ” • Don’t repeat what other witnesses tell you. • Avoid leading questions • Block radio transmissions

Cognitive Interviews • Establish rapport – “Are you comfortable? ” – “I don’t know what happened, you do. Begin where you like and go at your own speed. ” – You want free, open-ended narration

• “Close your eyes and place yourself back at the scene. ” – Do NOT interrupt. – Allow for pauses. – To prompt the witness, ask “then what? ” • Clarify with open-ended questions – “Do you know he left? “

Closing the Interview “Please avoid contact with the media or exposure to media accounts. ” “Don’t discuss details of the incident with other witnesses. ” “Don’t undertake your own investigation. ”(Facebook, etc. ) “From time to time I may need to show you photos. ”

Part Two 29

Terminology • • • Show-ups Field views Photo arrays Line-ups Voice identifications • Offenders • Suspects

General Best Practices • • Every PD must have a written policy. Separate witnesses. Avoid leading questions. Get a description first. Read to witnesses from cards and forms. Report every identification attempt. Composites, sketches & mug shots disfavored. Avoid successive identification attempts.

Show-ups • • • Soon after the crime (w/in 2 hrs) Thought to offset suggestiveness Efficient capture of the subject OR, if innocent, let him be on his way. Must still strive to be non-suggestive. – Never in a cell or rear of a cruiser – Turn suspect so cuffs don’t show

Perhaps this is not a good time

Procedure • Transport witness to the subject (preferred), OR • Bring the subject back to the scene, BUT – You may incite the crowd – You might not be able to control multiple witnesses – You may taint the crime scene

Multiple Witnesses • Conduct separate show-ups. • If a positive identification is obtained from one witness, use other identification procedures (e. g. , lineup, photo array) for remaining witnesses.

Mass. Rules of Crim. Procedure • Mandatory automatic discovery: • (viii) “A summary of identification procedures, and all statements made in the presence of or by an identifying witness that are relevant to the issue of identity or to the fairness or accuracy of the identification procedures. ”

Show-up Instructions 1. You are going to be asked to view some people. 2. The person you saw may or may not be among the people you are about to view. 3. It is just as important to clear innocent persons from suspicion as it is to identify the guilty.

4. Regardless of whether you identify someone, we will continue to investigate. 5. If you identify someone, I will ask you to state, in your own words, how certain you are. 6. If you do select someone, please do not ask us questions about the person you have selected, because we cannot share that information with you at this time. 38

7. Regardless of whether you select a person, please do not discuss the procedure with any other witnesses in the case or the media. 8. Do you have any questions about the procedure before we begin? 39

Procedure 1. 2. 3. 4. 5. 6. 7. Stop the cruiser prior to arrival. Read the witness the instructions. Ask if he/she has any questions. It’s a show-up, not a drive-by! Note the witness’ reaction. Ask how certain he/she is. Note the statement of certainty.

Inanimate Objects (Whether during show-up or not) • First present suspect as you found him. • Don’t ask him to wear items found nearby. • Then, an inanimate object may be presented. • An array is not required, but don’t be suggestive.

• Document item description first. • This may or may not be the item you saw. • “Tell me how certain you are. ” • Can you tell if this is the specific item or one that looks like it? • Video or audio record if practicable.

Making ID’s with DMV Photos • Don’t allow it! • Too suggestive. • It’s a photo array with only one photo.

Showing A Single Photo • ONLY to confirm the identity of a known suspect. • Treat police witnesses same as other witnesses. • Undercover officers.

Best Practices: Arrays, Line-ups • Use a current photo of the suspect. • Fillers should fit the offender description, not look like the suspect. • At least 5 fillers and only 1 suspect. • Blind administration required. • Must be shown sequentially. • No more than a second lap.

Arrays & Line-ups (cont. ) • • Statement of certainty. Shuffle between witnesses. Submit array instruction form with report. Whenever practicable, video or audiotape a photo array or line-up.

Assembling the Array • Fillers should it description of the offender • But none should stand out • If there’s no description of the offender, use the suspect’s appearance as a guide.

• Backgrounds & photo types should match • Block out any mug shot markings. • Have another detective view the array to ensure that the suspect does not stand out. • Preserve the array as evidence.

Uriah Courtney (San Diego)

• Don’t use fillers shown in a previous array. • Number the back of each photo. • Put suspects in different positions if there is a time gap between witnesses. • Mitigate unusual features.

Blind Administration “Double Blind” Use of a second officer “Blinded” Folder Shuffle Not an accusation of misconduct. In an experiment, when administrators were told who the suspect was, erroneous identifications AND confidence levels rose.

Double-Blind • Detective AND patrol officer meet witness. • Detective explains procedure & introduces officer. • Reads instructions and leaves the room. • Patrol officer shows array, records response and asks about certainty. • Results not discussed in front of the witness.

Photo Array Instruction Form 1. You are being asked to view a set of photographs. 2. You will be viewing the photographs one at a time and in random order. 3. Please look at all of them. I am required to show you the entire series. 4. Please make a decision about each photograph before moving on to the next one. 5. The person you saw may or may not be in the set of photographs you are about to view.

6. You should remember that it is just as important to clear innocent persons from suspicion as to identify the guilty. 7. The officer showing the photographs does not know whether any of the people in the array are the person you saw. 8. The individuals in the photographs may not appear exactly as they did on the date of the incident because features such as head and facial hair are subject to change. 9. Regardless of whether or not you select a photograph, the police department will continue to investigate the incident.

10. If you select someone, the procedure requires the officer to ask you to state, in your own words, how certain you are. 11. If you do select a photograph(s), please do not ask the officer questions about the person you have selected, as no information can be shared with you at this stage of the investigation. 12. Regardless of whether you select a photograph(s), please do not discuss the procedure with any other witnesses in the case or the media. 13. Do you have any questions before we begin?

Sequential vs. Simultaneous • Relative Judgment (simultaneous) • Absolute Judgment (sequential) Is simultaneous really the “traditional” way of showing a photo array?

Relative Judgment 3% 13% 3% 3% From: What Do We Know About Eyewitness Identification? Wells, American Psychologist, 1993. 54% 3% 21% No choice

What happened? 3% 6% 3% 12% No choice = 32% 13% 3% 3% 38% 7% 5%

Postdiction Variable • Level of Certainty – There can be significant error rates – BUT, jurors attach great significance to a confident eyewitness. – Feedback to an eyewitness prior to documenting certainty will contaminate the confidence statement.

Post-ID Statement of Certainty • Ask witness how certain they are immediately after the identification. • “Without using a numerical scale, how certain are you? ” • Obtain certainty prior to providing any information about the subject or case.

Response Latency Witnesses who make accurate identifications tend to do so quickly Automatic processing - recognition Deliberative processing – thought If practicable, record the showing of an array (National Academy of Sciences Report)

Those pesky questions: • What if she stops the array and makes an ID part-way through? – Ask her, “Without using a numeric scale, how certain are you? ” – Then, “Remember, I’m required to show you the entire series. ”

• What if she wants to see the array again? • Or asks to see one photo again? “I can show you the entire array one more time. ”

Folder Shuffle (8 Photos) • • • Each photo in a file folder Top folder contains a filler Two empty folders on the bottom Shuffle the middle 7 Have witness open folders so that the cover blocks your view • If second view is requested, shuffle all 10 in front of witness

Lineups (Live Arrays)

Why Do a Live Array? • Captures the suspect as he looks today. • Ability to look him in the eye. • Witness may recognize mannerisms.

The Downsides • Must have a cooperative suspect. • OR a court order to compel him. • Finding fillers can be challenging. • Obviously, your suspect will know you’re looking at him.

Location – Two entrances, out-of-sight from each other – Or stagger arrival of witnesses and suspect – 2 gathering spaces – Security if suspect is in custody – One-way glass?

W X

Conducting a Live Array • • • Involve the DA’s Office Video. Run procedures by his attorney. Instruct the participants. Use a B Team inside both rooms. Present participants sequentially.

Voice Line-ups 1. 2. 3. 4. The witness is blind, It was dark, The offender was masked, or There was something peculiar about the offender’s voice. In some states, view and voice are bifurcated. If so, tell witness the numbers of the people she hears are not the numbers of the people she viewed.

Mass Case Law • Tell witness the numbers have been changed. (Comm. v. De. Maria, 1999) • Do not allow the witness to view the participants as they speak. • Words read by participants should not be those spoken during the crime. (Comm. v. Marini, 1978)

Composites & Sketches

Composites & Sketches • People tend to remember faces, not features • “Building a composite significantly lowered the accuracy for identifying the original face. ” (Prof. Gary Wells)

Mug Books • Non-suggestive mug book may produce a lead. • But flooding a witness’ memory with hundreds of random faces is not a good idea.

ID’s from Surveillance Cameras • If you don’t know the subject, don’t make the ID. • No 1 to 1 matches! • Show the photo to someone who knows the suspect.

After the Array • The pick is not the eureka moment! • Continue with your investigation – Search warrant for clothing worn – Establish the whereabouts of the suspect when the crime occurred – Examine and submit forensic evidence

Police Reports • File a report on every identification attempt, even if unsuccessful. • Unsuccessful identification attempts: – Document your thoroughness – Show that you did not “rush to judgment” – Demonstrate that the witness is not predisposed to pick just anyone. • Always report exactly what was said.

Photo Arrays & Line-Ups Caution • Unconscious Transference – an identification is made because the suspect looks familiar to the witness, not because he committed the crime • Risk is created by successive attempts • And by showing mug files

Transference Experiment • 15% of witnesses picked a filler • But 37% picked one if they had previously seen his photo in a mug book.

From this day forward, our Department will use only best practices supported by science and research, and recommended by the U. S. Department of Justice, the Innocence Project, the National Academy of Sciences and the International Association of Chiefs of Police, designed to prevent the arrest of innocent people.

Visit our Website

Norwood. Police. com • Go to: About the Chief • Then to: MPTC Training Materials – Massachusetts Lesson Plan – Videos (including link to IACP series) – Handouts – Witness instruction forms

IACP Roll Call Videos Go to IACP. org Search for: eyewitness videos

Chief Bill Brooks, Norwood PD wbrooks@norwoodma. gov 781 -440 -5150 Norwood. Police. com @Chief. Brooks. NPD