Posted by Edmond Geary | Posted in Criminal conviction, Wrongful Convictions | Posted on 20-10-2011
New Jersey’s Supreme Court has recently ordered an overhaul in the procedures judges and juries use to treat evidence from a police lineup. Police have always resisted encroachment on their own rules for lineups.
The Court recognized decades of research that shows the traditional procedures used for lineups have problems. The result has been that innocent people convicted and sent to prison. The problem has been that police, often unconsciously, give subtle hints as to which person the witness should identify. These hints never show up in any record, so they cannot be questioned. Both the police and the crime witness even deny that such hints exist, yet they do exist, and they have influenced the identifications of suspects in court. When that identification is the sole or strongest evidence of a suspect’s guilt, the flawed identification can be the basis for the conviction of an innocent person.
Finally there are consequences for police who refuse or fail to follow proper procedures. Courts have always been reluctant before to sanction such careless or deliberate conduct by the police. New Jersey is one of the fifty states, but there are more than 16,000 law enforcement agencies in the country that deal with suspect identification. Many remain skeptical about the research that faults their present procedures. Many resent the suggestion that they could be having an affect on the accuracy of the responses of witnesses in the identification. This resentment is no less because, research shows, the influence is unintentional.
Most police identifications are conducted the same way they have been for years and years. Most use photos rather than an array of actual persons because photos are much easier to assemble. The standard requirement is that all the suspect photos are supposed to be of similar race, facial hair, age so as not to make one of them obviously prominent.
More than 2,000 scientific studies have shown problems with witness accounts. Add to that at least 190 people who were convicted by eyewitness testimony and later proved to be wrongly convicted by that gold standard of science, DNA evidence. Those who have studied the field estimate that there are about 75,000 witness identifications each year, and some studies suggest about a third are incorrect.
Larger police departments are taking the lead in adopting the new procedures which the the New Jersey court has mandated in its jurisdiction. In Dallas, elaborate precautions are taken to keep out any taint that might cause a question later in the courtroom or on appeal. Witnesses are sent to a special unit of the police department that is dedicated to lineups and the detectives there have no other relationship to the case or the witnesses. The witnesses are read instructions and shown the photos by specially trained police officers. The photos are shown one at a time, rather than all at once. At each photo, the witness is asked to indicate how confident he or she is about their reaction to that photo. The entire process is recorded by videotape in case any questions later arise during the judicial process about what happened in that identification.
Naturally, the police in Dallas resented new procedures at first. They felt their integrity was being challenged. But after thorough training that included explanations of memory functions and the psychology behind the dynamics, the procedures began to gain some believers in the police department. Veteran detectives notices over the years that during lineups that police gave small facial cues when a witness picked a suspect the police had in mind.
Police departments rarely make any changes until wrongful convictions become an issue, and there have been many DNA exonerations of death row inmates from convictions in Dallas.
Denver Police Department is another one that has adopted some of the new procedures about six years ago. When they really looked at the procedures they were using, they concluded their practices were suggestive. They have found that the new procedures help, rather than hurt, their investigations. Only 15 miles away in Aurora, Colorado, police are doing things the same old way. Specifics may be hard to come by since there are is no written policy on lineups. They do not follow the National Justice Institute guidelines because state law does not require them to do so. Ordinarily, the investigating officer in the case conducts the lineup, and it is important to him to see that the witnesses are careful in their identifications. However, no particular consistent steps are taken to prevent influencing the identification.
For years judges have disallowed evidence of studies that explained these problems in lineups, so the juries never heard any evidence that offered the least question to the emotionally powerful testimony of an eyewitness. The juries never got a chance to see anything behind that testimony, what did or might have suggested or tainted that testimony that was now so positive and unshakable in the courtroom.