Eyewitness Identification

Date Prepared:

/ 12/01/2012 /

Subject:

/

Eyewitness Identification

/

Prepared By:

/ Chief William G. Brooks
Norwood (MA) Police Dept.

Target Audience:

Specialized – detectives and patrol officers /

Pre-required Student Training and/or experience (if any):

Recruit academy and field training / Method of Instruction:
Lecture, PowerPoint, class participation, video, demonstration, exercise /

Time Allotted:

Classroom Hours: 5
Practical/range/scenario hours: ½
Continuing Education Credits:
Summary of Instructor Qualifications to teach the class: (100 word max.)
The instructor should be an experienced detective who has conducted both show-ups and photo arrays and at least one or two line-ups and/or voice line-ups. The instructor must be committed to the implementation of the reform procedures recommended by the DOJ and Innocence Project, and must be well-read on the reasons behind the reforms. / Number of Instructors required and their duties:
One
Materials:
Instructor: PowerPoint presentation,handouts, sample photos and photo array, line-ups number cards, show-up card.
Students: Note taking materials. / Audio Visual Needs: (e.g. electronic devices)
Computer, LDC projector, screen, DVD player, board and markers. / Videos:
60 Minutes, 2 segments from April 2009 with Jennifer Thompson
Simulated crime and two line-ups
MPI/New England Innocence Project video on Folder Shuffle
Instructional Goal: / The course will give officers an understanding of the fragility of eyewitness memory and the role it can play in wrongful convictions. They will learn reform procedures that improve their investigative ability and make them better witnesses in court. Adherence to modern reforms will enhance their departments’ reputation for justice and fairness with the communities they serve.

Objectives:

(Specify skills/information that will be learned.) / At the close of this module, the officer will be able to:
Describe a show-up and photo array, recall the instructions to be given to a witness, state the categories of eyewitness identification procedures, explain the guidelines for a voice array, list the three methods for blind administration, name at least three estimator variables and three system variables and discuss an example of unconscious transference.
Content/text: / Please begin the Content/text for this Lesson Plan on the following page.

Testing Procedures:

(Steps to check for student understanding) / Written exam.

Electronic (DVD) copy: The lesson plan submission must include electronic copies of the lesson plan itself, handouts, videos, and PowerPoint presentations used in delivery of the course, preferably contained on a single DVD.

/ Process for Review: / Bibliography References:
The Innocence Project
“Eyewitness Evidence: A Guide for Law Enforcement”, DOJ/NIJ 1999
“Getting it Right, Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts”, Boston Bar Assoc., 2009
U.S. v. Wade, 388 U.S. 218 (1967)
“Brockton Man Acquitted of Murder”, Boston Globe, August 13, 2010

Eyewitness Identification

Background and Introduction

Eyewitness Identification refers to the aspect of a criminal investigation where a witness who observed the offender attempts to identify him. For over a century, psychologists and researchers have questioned the reliability of eyewitness testimony and the accuracy with which an eyewitness attests that a particular person was the one they saw commit the crime. It was not until the advent of DNA, and its capacity to not only confirm the identity of a guilty suspect but to also exonerate an innocent one, that the criminal justice system began to take a careful look at the role eyewitness identification plays in the criminal justice system.

According to a review of DNA exonerations by the Innocence Project, approximately 75% of the people later exonerated by DNA were convicted after an eyewitness mistakenly identified them as the offender.

Some factors impacting the ability of an eyewitness to identity an offender are beyond the control of the police. So-called “estimator variables” such as lighting, the amount of time a witness observes an offender, whether the offender is of a different race, and the amount of stress felt by the witness during the crime are factors over which the police have no control. However, “system variables” such as the procedures used during the showing of a photo array can have significant impact.

Although researchers have questioned the reliability of eyewitness recall for more than 100 years, the DNA exonerations that began in the late 1980’s proved a basis for those reservations. In 1999, the National Institute of Justice convened The Technical Working Group for Eyewitness Evidence, a task force of criminal justice professionals including police. The group’s report, Eyewitness Evidence: A Guide for Law Enforcement called on the police to standardize operating procedures and served as an outline for police training.Ten years later, the Boston Bar Association published Getting it Right, Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts. The report was the result of work performed by a task force of Massachusetts defense attorneys, prosecutors and police officers that came to strongly support the adoption of reform in four general areas, including eyewitness identification.

  1. Definitions

Basic Terms

  1. Suspect – a person believed by the police to be involved in the crime. Suspects may be innocent or guilty.
  1. Offender – the person who committed the crime, whether the police yet suspect him or not.
  1. Filler – sometimes called a foil or distracter, a filler is a person whose photo is included in a photo array or who stands in a line-up not because he or she is suspected of involvement, but merely to provide a selection for the witness to choose from.
  1. Participant – a person whose photo is included in an array or who stands in a line-up. There are two types of participants, fillers and suspects.
  1. The Mind and Eyewitness Memory
  1. Researchers generally recognize three stages of memory
  1. Encoding – the witness’ observation of the offender and the witness’ perceptions about him or her.
  1. Storage – memory. The retention of the observation and perception information. It is widely accepted that memory can fade over time, and many researchers believe that memory fades at a quicker pace shortly after the event.
  1. Retrieval – the witness’ recall of information received during encoding and stored in the mind.

Information may be retrieved primarily in two ways, recall and recognition. Recall refers to the recitation of what the person recalls. Recognition refers to selecting the answer from a set of choices. In testing, it is similar to the difference between fill-in questions and multiple choice. Obviously, selecting the answer from a set of a few possibilities is easier for most people than recalling the answer from thin air and writing it down. In eyewitness identification, the witness may have an easier time spotting the offender in a photo array than describing his features to a sketch artist.

  1. Identification Procedures
  1. Show-up – In other states, may be called a curb-side or a bring-back, but show-up is the term most widely in use. In a show-up, the police show a single suspect to an eyewitness soon after the crime has been committed to determine if he is the offender.
  1. Field View – Officers take an eyewitness to a populated area on the off chance that the witness may spot the offender. Typically, this procedure is not target-specific. In other words there is no suspect. Even so, officers conducting a field view must be careful not to make remarks that may be suggestive.
  1. Photo array – a collection of photos, typically with one suspect and several fillers, shown to an eyewitness.
  1. Live array – formerly called a line-up, but conducted using the sequential rather than simultaneous system.
  1. Voice line-up – a procedure whereby a witness is permitted to listen to the voices of a group of people, typically one suspect and several fillers.

Classroom Demonstration – Experiment

Show the video of a crime being committed (“Crime”). Ask half the class (Team B) to leave the room for 5 minutes. When they are gone, tell the other half (Team A) that the investigation into the crime has yielded a suspect and you want to see how many of them recognize him.

Show a video of the first line-up (“Lineup 1”). (The offender is not in the line-up, but do not reveal this yet.) After the line-up has been shown, ask Team A to write down which one they believe to be the offender (the participants are holding numbered cards). Once they are done, walk around the room. If an officer has written down a number, tap him on the shoulder and move on. When done, announce that the people you tapped selected the correct man. Ask them to jot down how certain they are of their identification and how good a look they got of the offender during the video.

Ask Team B to step back into the room. Slowly read the instructions that are to be given to a witness who views a photo array or line-up as discussed below. Ask if anyone has any questions, and then show the video of the first line-up (“Lineup 1”). Do not walk among this group. Instead, simply ask them to write down what they think (NOT which one they picked). Then ask them to jot down how certain they are of any identification and how good a look they got of the offender during the video.

This experiment is intended to show the contrast between the old way of showing an array (no instructions, reinforcement comment if the suspect was selected, etc.) versus the new reform procedures. If the experiment works, the instructor should see that more people on Team B marked that the offender was not in the line-up. You should also see that statements of certainty are stronger among Team A (since the instructor reinforced their selection) and that they believe they got a better look at the offender during the video.

The instructor should explain the differences between the two showings. Alarmingly, though, there will be a significant number of people in Team B who, in spite of the reform measures, still picked someone from the array.

The instructor may then show the second line-up video (“Lineup 2”) depicting the actual offender.

  1. Admissibility of Eyewitness Identification Evidence in Court
  1. Techniques used by defense attorneys to counter the identification of the defendant by an eyewitness:
  1. Motions to suppress
  1. Expert testimony about memory and false identifications
  1. Cautionary instructions from the judge

(None of these work very often)

  1. Process for suppression of eyewitness identification testimony:
  1. Court must balance unnecessarily suggestive procedures of the police against indicia of reliability. Manson v. Brathwaite (USSC, 1977)
  1. Totality of circumstances test is used.
  1. Factors the court may consider in determining whether the identification is reliable are the so-called “Biggers factors” established in 1972. If the court takes into account the Biggers factors and finds that the identification is reliable, in spite of the use of suggestive practices by the police, the identification may still be admitted.

The Biggers factors are:

  1. Opportunity of the witness to view the criminal at the time of the crime
  2. Witness' degree of attention
  3. Accuracy of witness’ prior description
  4. Witness’ level of certainty
  5. Time between the crime and the confrontation
  1. The Role of Eyewitness Identification in Wrongful Convictions
  1. As of December 2012, 301prisoners in 35 states have been freed after DNA evidence proved they were convicted of crimes they did not commit. Alarmingly, 72% of these defendants were convicted after an eyewitness mistakenly identified them as the perpetrator. In other words, faulty identifications by witnesses account for more wrongful convictions than all other causes combined.
  1. Things may actually be worse than they appear. Most exonerated defendants had been serving time for homicides and sex assaults, crimes that frequently yield DNA evidence. If so many were serving time for these crimes, how many are in prison for crimes like robberies and aggravated assaults where DNA evidence is not as common?
  1. While erroneous convictions ruin the lives of innocent defendants and taint the reputation of the courts and the police, they also leave true perpetrators on the street to continue offending. The DNA that exonerated 111 defendants identified the actual perpetrators, and those 111 were eventually convicted of committing over 80 violent crimesin addition to the ones that sent innocent people to prison. Among those 80 crimes were 20 murders and more than 50 rapes, all committed while the wrong people sat behind bars.
  1. The Variables of Eyewitness Identification
  1. Researchers recognize three categories of variables present in eyewitness identification
  1. Estimator variables – when a test subject is asked to identify a choice, without actually knowing the correct answer, the choice is often called an estimate. Generally, the police have no control over estimator variables.
  1. System variables – these variables are within the control of the criminal justice “system”, hence the term system variables
  1. Post-diction variables – these variables exist but have no causal effect on the identification. They have more to do with assessing the accuracy of the procedure.
  1. Estimator Variables
  1. Lighting & Distance
  1. Cross-Race Identification
  1. Witnesses have more difficulty identifying suspects outside their own race.
  2. Studies have shown that the chance of mistaken identity is 1.5 times more likely where it is cross-racial.
  3. This does NOT just apply to whites identifying blacks, but also to whites identifying Asians, Asians identifying whites, etc.
  1. Weapon Focus

When the offender displays a weapon, the witness’ attention may be drawn to it weakening observations of the offender’s face.

  1. Exposure Duration
  1. Refers to the length of time between the witness’ observation of the offender during the crime and later during an identification procedure.
  2. Exposure duration is short with show-ups as they occur soon after the commission of the offense.
  3. It is generally recognized that long exposure duration can result in weaker memory and therefore a diminished likelihood of accurate identification.
  1. Stress
  1. Some research shows that a witness who is under stress may have a more difficult time later on identifying the offender.
  2. This can be difficult to simulate in lab experiments, but tests performed on soldiers by the military have borne this out.
  3. In a military experiment, some captives exposed to high stress interrogation for 40 minutes had difficulty later identifying the interrogator.
  1. Witness Intoxication
  1. Surprisingly, one study showed that it had no significant effect in identifying the guilty subject
  2. But it also showed that a witness who was intoxicated at the time of the crime was more likely to erroneously pick a filler in a target-absent line-up.

Show first segment of60 Minutesfeaturing Jennifer Thompson

Instruct the class to be thinking about the estimator variable as they watch the video.

  1. System variables
  1. Remember that the term comes from variables that can be affected by the criminal justice system, essentially the police.
  1. They can be more significant where the witness’ memory is weak.
  1. There are two categories of system variables.

a.Interview procedures, and

b.Identification procedures

  1. Interviewing Witnesses
  1. Dispatchers taking calls from witness should avoid leading questions.

“Did you see them getting into a red car?” (leading)

Versus “Do you know how they left the area?” (open, non-leading)

  1. It is important that officers at scenes separate witnesses

You don’t want them overhearing each other’s descriptions

You want each description to be unaffected by the opinions of other witnesses

Officers do NOT want witnesses to get together and come up with a “consensus description”

  1. Officers should use Cognitive Interview techniques when questioning eyewitnesses.

First, build rapport

–“Are you comfortable? Is there anything I get for you before we begin?”

–“Please provide as many details as possible, but don’t guess.”

–“I don’t know what happened. You hold all the information. Begin where you like and go at your own speed.”

–Do NOT interrupt the witness

“Close your eyes and place yourself back at the scene.”

–Allow for pauses. If necessary ask “then what?”

Encourage free, open-ended narration

Let the witness set the pace and order of the interview

Clarify with open-ended questions

–“Do you know how he left?" vs. “Did you see the car?”

Augment with closed-ended questions

–"What color was the car?"

Avoid leading and yes/no questions

–"Was the car red?"

Closing out the interview

–Provide your contact information.

–Encourage the witness to avoid contact with the media or exposure to media accounts.

–Instruct the witness not to discuss details of the incident with other potential witnesses.

–Document with a written report as soon as possible

Explain that you are going to skip the second set of system variables, the identification procedures, and return to them later.

  1. Post-diction Variables

Post-diction variables have no causal affect on identification procedures. The two most prevalent post-diction variables are level of certainty and response latency.

  1. Certainty
  1. There can be significant error rates when eyewitnesses make identifications, even with witnesses who believe they are certain.
  1. But jurors attach great significance to the testimony of a confident witness.
  1. Feedback to an eyewitness can artificially inflate the witness’ confidence in his or her identification. The best way to guard against this is to avoid comments like “good job” or “congratulations” after a witness has selected the suspect.

Instead, immediately ask “Without using a numerical scale, how certain are you?” and record the witness’ response.