Error may be in the eye of the beholder

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What’s the most famous quote from “Star Trek?”

If you were thinking, “Beam me up, Scotty,” you’re like most people. The problem is, that line was never uttered by Captain Kirk, or any other cast member. But, perhaps due to slogans on T-shirts or bumper stickers, people perceive that to be the most memorable quote.

Perception and memory do not always mirror reality, says Prof. Keith A. Findley, of the Innocence Project at the University of Wisconsin Law School. He offered the “Star Trek” example at the State Bar of Wisconsin Annual Convention in Madison, to educate about the dangers of excessive reliance upon eyewitness identifications.

It was one of many examples he gave, citing social science research conclusions supporting the notion that the human brain does not work like a video camera, accurately recording events and reproducing them exactly as they occurred. Therefore, the justice system needs to use extreme caution when relying upon eyewitness identifications in criminal prosecutions.

Findley cited a 1999 study that found that approximately 75,000 people become criminal defendants every year, largely on the basis of eyewitness identifications. Moreover, looking just at the cases of the 216 persons who’ve been exonerated of crimes by postconviction DNA testing alone from the work of Innocence Projects across the nation, the eyewitness identification played a role in almost 80 percent of these wrongful convictions.

Wrongful Convictions

No one can really know how many innocent people are in prisons, he observed. But one compelling estimate comes from a 2004 study from Virginia, which randomly selected 31 prisoners convicted of sexual assault for DNA testing and found that two were innocent.
“If that holds up across the board, and we don’t known that it would, that would be about a 6 percent error rate, and significantly, both of those cases involved eyewitness error. It’s a serious problem in the criminal justice system,” Findley said.

Apparently, the Wisconsin Supreme Court shares some of Findley’s apprehensions. In State v. Dubose, 2005 WI 126, Justice N. Patrick Crooks wrote, “The research strongly supports the conclusion that eyewitness misidentification is now the single greatest source of wrongful convictions in the United States, and responsible for more wrongful convictions than all other causes combined.”

The people making these misidentifications are not ill-motived; “These are not people who are liars, who are intentionally committing perjury; they are people who honestly believe in their eyewitness identifications, and they’re just flat wrong about them,” Findley said.

Psychologists have been studying human memory for more than 100 years, but it seems the criminal justice system is only now starting to pay closer attention to their findings, said Findley.

Recording Events?

Psychologists have concluded that what we perceive is not really what was happening, because our brains do not record, but rather, interpret data — and data can be misinterpreted. Human beings have expectations that can skew our perceptions. Not everything we see is recorded; there’s way too much data going on in the world at once.

Memory is essentially a reconstruction, and our brains fill in many gaps. And, memory decays rapidly; contrary to popular belief, much data is lost just within a day or two. In addition, memory can be tainted or changed, by post-incident events.

Sometimes “estimator variables,” or factors related to the incident itself, can affect memory, such as lighting. Notably, psychologists have found that cross-racial identifications have a higher rate of error — for example, Caucasians have trouble distinguishing between African-Americans. This works both ways, with all different racial groups, he said.

The presence of a weapon can also reduce the accuracy of an eyewitness identification, and this likely comes from stress. Findley spoke of a military survival training field study, where troops were left in the wilderness without food or water for 48 hours, and then captured and subject to mock interrogations. One group was interrogated very aggressively; the other very congenially. Twenty-four hours later, they were shown line-ups, or photos, and asked to identify their interrogators. The high-stress group was much more prone to error, with only one-third making the correct choices. Also significant was that they found that the sequential method — showing a photo and saying, “Was this the guy?” produced more accurate results than the line-ups of multiple people, or viewing multiple photos at once.

ID Practices

Then there are “system variables,” or ID procedure-related practices that can affect the reliability of an eyewitness ID. Among them are the “fillers,” or other individuals used by police in the identification process. Fillers should share some of the characteristics of a suspect. If the suspect has facial hair, and all the fillers are clean-shaven, the witness is bound to pick the one bearded person.

Police also need to pay close attention to the instructions they give in identifications.

Police should not say, “We’d like to show you some photos to see if you recognize the perpetrator.” The witness then believes the perpetrator is in custody and he or she must pick out someone, because the witness wants to be helpful.

Findley also spoke of a preference for “double blind” identification procedures, so that the officer administering the ID does not know who the suspect is, and he or she cannot unknowingly give off cues, or unintentionally interpret the witness’ responses one way or another.

A final system variable is the feedback that police give to witnesses. In an actual case, police clapped after a witness identified a suspect. This is bound to convey certainty in the witness’ mind that he or she got the right person, whether or not he or she did.

Reducing Mistaken ID

Looking at the national perspective, Findley noted that Wisconsin is among a handful of states that is taking the lead in making reforms.

Sec. 175.50(2), passed in 2005, requires law enforcement authorities to develop written guidelines for how police officers will conduct eyewitness identification procedures. In crafting those policies, agencies are to consider model policies and policies adopted by other jurisdictions.

Prominent among them are guidelines put together by the state attorney general’s office. They are available by clicking here.

The attorney general’s recommendations call for a double blind procedure. Some jurisdictions have objected to that, citing resource problems. That can be overcome, Findley said, by using the “folder method,” developed by Madison police, so that the officer who knows who the suspect is puts photos in folders and mixes them up, along with a few empty folders at the end. The officer then asks the witness to look at each one, one at a time.

The empty folders are there so the witness doesn’t know when he or she has comes to the last photo and fee
ls compelled to pick that person. Or, a computer, rather than an officer, can be used. The useful aspect of this method, noted Findley, is it can record how long it took for the witness to make the identification. The quicker an ID is made, more reliable it’s likely to be.

Findley has made an open records request to some 650 law enforcement agencies in the state, to determine what their witness identification procedures are. He and a number of law students are just beginning to analyze the results, but so far, it appears that the model guidelines are being adopted in large part. A few agencies, however, said they hadn’t heard about the change in the law, and got started in drafting them after receiving Findley’s request.

He urged criminal lawyers in cases involving eyewitness identifications to learn the social science regarding memory and perception, and prepare their cases with those findings in mind. It’s also helpful to know what the police in the jurisdiction involved in the crime have done with regard to their written eyewitness ID policies. In addition, experts can help prepare cases behind the scenes, or in court. And, be prepared to engage in some creative motion practice in the future regarding eyewitness IDs.

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Case Law Developments

Law Professor Keith A. Findley has discussed the chronology of recent cases addressing eyewitness identification procedures in Wisconsin. Findley and others from the Innocence Project at the University of Wisconsin Law School authored amicus briefs in the three high court cases listed below. State v. Dubose, 2005 WI 126. The Wisconsin Supreme Court held that a circuit court erred when it denied Dubose’s motion to suppress the victim’s out-of-court identifications of him, after determining that the eyewitness identification procedures used, including two showups, were not impermissibly suggestive. A showup is an out-of-court pretrial identification procedure in which a suspect is presented singly to a witness for identification purposes. However, the high court also declined to adopt Dubose’s proposed per se exclusionary rule regarding such evidence. Instead, the justices held that evidence obtained from such a showup will not be admissible unless, based on the totality of the circumstances, the showup was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array.

State v. Shomberg, 2006 WI 9. The Wisconsin Supreme Court held that the circuit court did not, at the time of its decision in 2002, erroneously exercise its discretion in excluding the expert testimony on eyewitness identification proffered by the defendant. The court additionally declined an invitation from the amicus brief filed by the Innocence Project to adopt a presumption of admissibility of expert eyewitness testimony in cases involving eyewitness identification.

Interestingly, however, the opinion also reads:

“… [A]t the time of the circuit court’s decision to exclude testimony from Shomberg’s expert, New Jersey was the only state to mandate sequential rather than simultaneous lineup procedures. In the intervening years, much has been learned about the processes and limitations of memory. There has been a wealth of information that has come to the public that has increased awareness of some of the inherent difficulties with eyewitness identification….Were this case to come before the circuit court today, given the developments that have occurred in the interim, it is highly likely that the judge would have allowed the expert to testify on factors that influence identification and memory.”

State v. Hibl, 2006 WI 52. Where there was an unplanned confrontation between an eyewitness and a suspect in the hallway prior to a court appearance, the Wisconsin Supreme Court allowed evidence of that incident because the police did not set it up — it was a “spontaneous” or “accidental” identification, where Dubose is not directly controlling.

However, the circuit court still maintains a limited gate-keeping function to exclude such evidence under sec. 904.03.

On the social science regarding eyewitness identifications, Justice Ann Walsh Bradley wrote:

“More recently, other phenomena that may affect the reliability of eyewitness identifications have been widely proffered or recognized. These phenomena may not be within the common knowledge of many jurors or judges. They include the ‘relative judgment’ process; the stressfulness of the event for the eyewitness; whether the event involved ‘weapon focus’; the cross-racial nature of an identification; and whether an eyewitness is given positive feedback during or immediately following the identification.”

State v. Drew, 2007 WI APP 213. The Wisconsin Court of Appeals held that Dubose only applies to showups, and not to line-ups or photo arrays. The Wisconsin Supreme Court did not accept the case.

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A prosecutor's perspective

Why can’t police agree to catch only the guilty people? Because in practice, that’s not always so simple. There are lots of gray areas. So says Brian Blanchard, Dane County District Attorney, who observes that Dane County law enforcement officials were among the leaders in the state to embrace procedural best practices designed to promote reliable eyewitness identifications. For example, Madison police were among the first to go to the double-blind procedure. “It’s been a positive step,” says Blanchard. “Of course, it’s always difficult to know exactly what impact the steps you take will have. But certainly, what everybody in law enforcement wants is to get the right people. And I think everybody realizes that pure eyewitness identification is one form of proof that we’re always going to rely upon to some degree, but that we have to be careful about it, and we are.”

Some of the newer eyewitness ID procedures are clearly an improvement, to Blanchard’s way of thinking. In the case of photo spreads, for example, doing them serially (instead of all together, also referred to as “six-packs”), he says that this reform was “unusual, in that there were studies clearly showing that you were going to get fewer false positives, and you shouldn’t lose too many in the way of false negatives. There’s a pretty strong argument there.”

The argument against the use of showups, however, is not as persuasive. There’s room for honest disagreement, he says.

“I think you can have a very substantial discussion on the merits as to the likelihood of it being misused to accuse an innocent person, versus the likelihood that you’ll be regularly letting people go. …

“You can always argue the merits of what witnesses should be told. But, the public needs to understand that there are trade-offs in some of these rules. A showup can be extremely valuable, and it’s a very regular occurrence. You have an event, whether it’s a sexual assault or an armed robbery, and you have someone on foot, and you have witnesses who know what someone looks like. That’s a very fluid and dynamic situation, and the stakes can be quite high, depending upon the nature of the crime.”

These are legitimate debates that need to happen within the legal community, he concludes.

“Just don’t lose sight of the fact that no one wants more than the police to get the right person.”