Oregon Supreme Court: On Eyewitness IDs, Law Enforcement Must Follow the Science

A decision by Oregon’s Supreme Court on eyewitness identification procedures has re-set the way that juries and courts in that state will think about eyewitness identification.

According to the New York Times editorial on the case, the ruling shifts the burden of proof to prosecutors to prove that eyewitness identifications are reliable before they can be admitted in court.  Before last week’s decision, the rule had been that identifications were generally admitted; it was up to the defense in individual cases to prove that an identification was not reliable.

But at least as important as the new rule itself was the reason that the Oregon court abandoned its old precedent:  the court had concluded that the old rule was based on assumptions about eyewitness testimony no longer supported by the science.  Thus the new case represents a textbook case of a court forcing law enforcement away from the failed evidence of discredited methods, and toward methods that accord with what science teaches us now.

Under the old rule, Oregon judges looked at five factors when evaluating an eyewitness identification: opportunity to view the alleged perpetrator, attention to identifying features, timing and completeness of description given after the event, certainty of description and identification by witness, and lapse of time between original observation and the subsequent identification.  Looking at these factors from the vantage point of the present day, the Oregon court found them “incomplete and, at times, inconsistent with modern scientific findings.”  Given the science on eyewitness identification that is by now well established, the court prescribed a new approach, including the change in the burden of proof.

That’s what the Oregon Supreme Court did, but here is why they did it:

…[W]e believe that it is imperative that law enforcement, the bench, and the bar be informed of the existence of current scientific research and literature regarding the reliability of eyewitness identification because, as an evidentiary matter, the reliability of eyewitness identification is central to a criminal justice system dedicated to the dual principles of accountability and fairness.

It’s hard to imagine a better summing up of the ideas behind Failed Evidence, and why the fight to overcome law enforcement’s general resistance to science is so important.

Eyewitness identification and Other Failed Evidence Issues on Minnesota Public Radio

In connection with my talk today, Nov. 8, on Failed Evidence at the University of Minnesota Law School, I’ve been interviewed by Minnesota Public Radio.  The interview is posted today as part of The Daily Circuit program. You can get to it here.

Failed Evidence on WYPR Public Radio’s “Midday” Program

I was a guest on WYPR Public Radio’s “Midday” program today, discussing Failed Evidence.  Today was the monthly “Midday on Science” show, and host Dan Rodicks and regular science contributor John Monahan asked great questions on everything from DNA to more traditional forensic sciences to eyewitness identification and false confessions.  Listeners asked terrific questions too.

You can hear the whole show by clicking here and clicking on the audio button.

Why Does LAPD Resist Science on Eyewitness Identification?

Why has the LAPD chosen to remain resistant to science-based eyewitness identification practices?

The title of an August 24 LA Times article says it all: “LAPD Reluctant to Change Its Handling of Photo Lineups.”  Having lineups conducted by someone other than the detective assigned to the case, who knows which photo shows the person they suspect, is backed by decades of science, but the LAPD opposes it.

The reason for having someone other than a person who knows the “right” answer administer the lineup is based on a well-established scientific protocol to avoid unconscious human bias.  Researchers long ago established that when the administrator of an experiment gives the subject choices from which to pick, the subject picks the right choice more often when the administrator knows which choice is the right answer.  This is called the experimenter-expectancy effect.  It is a form of cognitive bias, in which the person running the experiment who knows the preferred answer gives the subject making the choice subtle but unmistakable cues, without either intending to or realizing it.  To avoid this, scientists :”blind” the person administering the experiment and communicating with the subject.  The administrator therefore does not know the right answer, and therefore cannot communicate it.

Blind experiments are among the most basic requirements of science; we would never take an over-the-counter medicine if we knew that it hadn’t been tested this way.

And yet, with jurisdictions as different as New Jersey, Connecticut and Texas going with eyewitness procedures based on science, including blind lineup administration, LA Police Chief Charlie Beck continues to resist.  According to the Times,  Beck said ”if you don’t adhere to the rules, either process is flawed. It’s more important to do them correctly than it is which process you use.”

No — wrong.  I’m an admirer of Chief Beck (and his predecessor, William Bratton), after seeing the transformation of the formerly-broken  LAPD into one of the better large police departments in the country.   But in this instance, Chief Beck is wrong.  What’s important is to move to a process that produces measurably fewer errors.  Sure, people can screw up anything by doing it wrong.  But the evidence is not in doubt: putting a person not involved in the case in charge of lineups eliminates bias — not because police are bad or unfair, but because they are human beings, subject to the same cognitive errors all  human beings are.

News Flash: Wrongful Convictions Problem Is “Obscenely Exaggerated”

Here’s a new take on wrongful convictions.  According to Frank Sedita III, the District Attorney of Erie County (Buffalo), NY, “their rate of occurrence has been obscenely exaggerated.”  The real problem, Sedita says, is wrongful acquittals.

Sedita apparently took exception to an editorial in the Buffalo News on August 15, highlighting a considerable number of recent wrongful convictions in New York State.  The paper chastised the state legislature for failing to make basic changes in eyewitness identification procedure and and for failing to require the recording of suspect interrogations.

This was apparently too much for Sedita, who had his own say in an August 26 op-ed.  In his office, he says, he has many layers of review to assure that no innocent defendant ever faces punishment.  And he calls the “obscenely exaggerated” problem of wrongful convictions a  “deliberate deception heaped upon an unsuspecting public.”

Really?

Let’s review.  According to the Innocence Project, there have been 297 people have been exonerated nationwide,  as of today.  The National Registry of Exonerations, which uses broader criteria, puts the number at 945.  For the sake of argument, let’s stay with the lower, more conservative number, which counts only DNA-based exonerations.  The fact is that testable DNA is available in only five to ten percent of all cases.  This means that the 297 cases over the last two decades represents only the tip of the proverbial iceberg.  There are undoubtedly many times more cases of wrongful convictions, but no DNA evidence to test in those crimes.

What about “wrongful acquittals” which Sedita says far outpace wrongful convictions?  Sedita uses “wrongful acquittals” to mean one of two things: 1) cases in which defendants were acquitted, “despite overwhelming evidence”  of guilt; or 2) dismissals following indictment, “because of technical procedural issues or because the court suppresses key prosecution evidence at the request of the defense.”  But wait: if there was “overwhelming evidence,” why did the judge or jury acquit?  Perhaps not everyone viewed the evidence the way Sedita did.  And those “technical procedural issues” or the suppression of key prosecution evidence: we also call those things rulings based on the U.S. Constitution and on state and federal law, made by our elected representatives.  In other words these wrongful acquittals are not actually wrongful at all.  It is the way our constitutional legal system is supposed to function.

 

 

 

 

What Do Texas and Connecticut Have In Common?

What do Texas and Connecticut have in common?  No, New Englanders have not suddenly taken to wearing cowboy hats and boots.  As of August 23, both states are among those recently moving toward better practices in handling eyewitness identification and testimony.

In my last post, I discussed how a new Texas requiring some science-based identification practices would take effect on September 1.  This had, of course, happened in a state in which uncovering wrongful convictions seemed almost routine.  Now, Connecticut’s Supreme Court has moved that state a little closer to the proper ways to use and think about eyewitness identification.

As reported in an article in the August 23 Hartford Courant, the state’s Supreme Court announced that based on the current state of science in eyewitness identification, it was throwing out old precedents and would now allow the defense to call an expert witness in any case in which eyewitness identification played a significant role.  The expert’s testimony would be appropriately limited.

An expert should not be permitted to give an opinion about the credibility or accuracy of the eyewitness testimony itself; that determination is solely within the province of the jury. Rather, the expert should be permitted to testify only about factors that generally have an adverse effect on the reliability of eyewitness identifications and are relevant to the specific eyewitness identification at issue.

Basing its decision on what it called “a near perfect scientific consensus,” the court said that the research “convincingly demonstrates the fallibility of eyewitness identification testimony and pinpoints an array of variables that are most likely to lead to a mistaken identification.”

Allowing expert testimony does not mandate a change to police procedures, the way that Texas and some other jurisdictions, like New Jersey, have.  But it is a step in the right direction.

Tell me again: why can’t other states and police departments do these things?  Why do they continue to resist the science?

 

 

If Texas Can Make Some Eyewitness ID Reforms, Why Can’t Other States?

Texas leads the nation in wrongful convictions.  That’s why it’s interesting to find some of the state’s law enforcement leaders no longer mouthing the tired old tropes about why they can’t change eyewitness identification procedures.  The state mandated some changes with a new law, which takes effect on September 1.    So now some members of law enforcement in Texas say: it’s important, and we’re going to get it done.

A bit of background: last fall, two state senators introduced a bill requiring some basic science-based reforms in eyewitness identification procedures.  The bill passed, and on September 1, police agencies conducting eyewitness identifications must do so using a sequential process (showing members of a lineup or photos of a lineup to a witness one person at at time).  Police also must hold “blind” lineups, by having the lineup or pictures shown to the witness only by someone not involved in the investigation.  And each agency must adopt a written policy on eyewitness identification. The bill requires other reforms, too.

When changes like this are proposed, there is usually wide resistance by police and prosecutorial leadership: these things will cost too much, be too logistically complex, and will be far too difficult for small agencies.

This is what made an article I saw in the Corpus Christi Caller-Times so striking.  The piece concerned training for law enforcement on the new eyewitness procedures, conducted by Nueces County District Attorney Mark Skurka.  According to the article, Mr. Skurka told about eighty officers  that “the changes came about because of an increase in exonerations due to DNA evidence.  Law enforcement and prosecutors previously relied mainly on eyewitnesses, he said, but that practice caused many wrongful convictions.”  This made the reforms necessary, Skurka said, and “whether you have a two-man agency in Driscoll or a 150-man agency in Corpus Christi,” every agency will have to get on board.

Perhaps there’s nothing more to this than the fact that the legislature required the changes.  I have no idea whether D.A. Skurka  believed or articulated these ideas about wrongful convictions and eyewitness testimony before the legislation or not.  But maybe that isn’t the point.  Once there is a requirement in the law, he has to move his people toward science-based best practices.   So, for advocates of change, making allies in the state legislatures to move these practices into law means everything.  (See Chapters six and seven of Failed Evidence, available next month.)

Disagreeing With a Giant: Gary Wells Gets It (Almost) Right

There’s a very interesting post on the Innocence Blog by Gary Wells, one of the giants in the field of eyewitness identification.   “A Short History of Police Lineup Reform” is well worth reading.  And so I feel great trepidation when I say: Professor Wells, I do have to disagree with you, just a little bit.

About Professor Wells: his more than four decades of research has been among the most influential work in explaining what goes wrong in eyewitness identification.  And this work has gone beyond pointing out what goes wrong to suggesting how to do these things better, often at little or no cost.  All in all, his body of work is a remarkable contribution.

Professor Wells’ post charts the history of his own work and the changes in the field, especially how DNA-based exonerations changed everyone’s thinking.  Post DNA, the possibility of wrongful conviction was no longer just theoretical, and work on the causes of such errors became much more consequential.  As a result, he says, “a number of jurisdictions began to take note of these findings and make reforms to how they conducted lineups.”  Change was slow, he acknowledges, and “some”  jurisdictions showed “some reluctance.” But now, he says, with additional work confirming earlier findings, police agencies are much more receptive:

Once law enforcement investigators are exposed to the research, they are quite receptive to it. The more lineups they’ve done in their career, the more they can appreciate the idea that there are limitations to eyewitness evidence, which they’ve observed in their own professional experience. Once they know there’s a problem, they’re eager to find a solution.

This is where I have to disagree.  It’s true, more police departments are turning to better procedures — some on their own, more because of new state laws and other types of mandates.  New Jersey is the best example, and I’ve highlighted that both here in the blog and in Chapter 7 of my new book Failed Evidence, which will be published next month.  But, from where I sit, the great majority of states and police agencies at all levels still show what Professor Wells calls “reluctance” and what I call “resistance” to science-based identification practices.  They have refused to change, regardless of the scientific evidence.

Here’s hoping that many more law enforcement agencies change their practices based on the work of Professor Wells and his colleagues in the field.

Why NJ Is Ground Zero for Science-based Eyewitness Identification

Readers know that New Jersey requires its police and prosecutors to follow the best-research-based practices for identification procedures.  My book Failed Evidence, due out in  September, presents the story of how New Jersey started down this path and became ground zero on eyewitness evidence.  And in a recent post here, I described how the New Jersey Supreme Court began to require comprehensive jury instructions based on the same science.

Here’s a related question: What’s the motivation at work here?  Why do New Jersey criminal justice officials think the new, science-based  procedures are important enough to require them?

One answer seems to be the frame of mind with which folks in New Jersey approach their duties in the justice system: they believe we should do the best that science allows us to do to get it right.  In an article entitled “NJ Courts View Witnesses Skeptically,”  published August 4,  officials articulate this idea eloquently.  According to retired New Jersey Superior Court Judge Dennis Braithwaite, New Jersey’s “landmark” jury instructions originate with what we know from decades of research.  “This is all based on deep review of the scientific research on eyewitness identification, and courts in other states will look to see how our Supreme Court processed that research.”

But there is also a heavy dose of pragmatism at work: officials also believe that all of the new procedures will save the state money by avoiding costly wrongful convictions that could bleed the state treasury for years and erode the integrity of the criminal justice system.  And the costs of implementing the new procedures — such as having lineups administered by officers not involved in the investigation of the case — turn out to be relatively easy to manage, even for small agencies.

As we explore why law enforcement resists science, jurisdictions like New Jersey that have taken the bold steps necessary to bring their practices into alignment with the best the research has to offer, become examples of why resistance is less and less tenable.  If you’re moved to comment, please tell us about other jurisdictions that have made similar leaps.  (Hello, North Carolina?)

Do Your Police Know Where You Are? If You’re Driving, Yes.

Yesterday’s article in the Pittsburgh Post-Gazette that residents at several Pittsburgh intersections are unknowing participants in an experiment on mass surveillance.  “Cameras Record License Plates in a Snap” revealed that at several intersections, police had mounted high-speed camera systems that took images of the license plates of every car that passes through, and retains those images for up to five months.

These very capable systems will give a wealth of data to police, and will instantaneously make various checks on every vehicle.  According to the article:

The devices snap photos of every passing car, “read” their license plates and log them in a searchable database.  The system is also equipped to run every passing plate with national, state and local “hot lists,” compilations of cars wanted by authorities because they’ve been stolen or associated with crimes or missing persons. The federal database, called the National Crime Information Center, also includes license plates associated with suspected terrorists.

The camera systems are funded through the Port Security Grant Program.  This strikes me as odd, because the main camera post featured in the article is just a mile or two from where I live, and I can tell you for sure that there is no port there to secure.

The article quotes skeptics, such as attorneys for the American Civil Liberties Union of Pennsylvania, who express privacy concerns about retention of and access to months worth of data on the activities of law-abiding citizens.   But the law enforcement people quoted in the article are almost all big believers.  And the mayor of nearby Braddock, Pennsylvania, was unequivocal.  The only rights that matter is “the right not to get shot.”  The small chance that the system could be abused by police or others “is infinitesimal  compared with the public safety and the public good.”

I agree that there is a place for surveillance technology like this, but I want to see proper consideration given to equally valid concerns like privacy and the right not to be tracked everywhere we go.  If regulations on the proper use and retention of these images is too much to ask, we ought to take another path.  Forgive me, but I’m not satisfied when my government officials give me assurances that it won’t be abused, and if I’m not doing anything wrong, it shouldn’t be a problem.