Posts Tagged ‘eyewitness identification’

The International Association of Chiefs of Police (IACP) is one of the leading organizations for law enforcement professionals in the U.S. and around the world.  I regularly turn to their model policy and training documents when working on those issues for police agencies.  So it’s a big deal to see their new report, prepared in conjunction with their partner, the U.S. Department of Justice Office of Justice Programs, announcing that their new effort in which they will play a leading role in fixing the problems in police investigation that cause wrongful convictions.

The report, titled, “National Summit on Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions,” takes a full view of the issues that must be addressed to avoid convicting the wrong people, and announces a series of recommendations designed to bring the goal within reach.  It is based on work at a summit of people from IACP, DOJ, and a host of experts.  In a preliminary statement in the report, the President of the IACP and the Assistant Attorney General for the Office of Justice Programs, outlined how the report came to be and what it does.

This event gathered 75 subject matter experts from all key disciplines to address and examine the causes of and solutions to wrongful convictions across the entire spectrum of the justice system. Summit participants worked diligently during this one-day intensive event to craft 30 focused policy recommendations that guide the way to our collective mission to continually improve the criminal justice system. The summit focused on four critical areas: (1) making rightful arrests, (2) correcting wrongful arrests, (3) leveraging technology and forensic science, and (4) re-examining closed cases. The 30 resulting recommendations directly address these areas and lay a critical foundation for required changes in investigative protocols, policies, training, supervision, and assessment.

The report makes thirty recommendations on a number of topics: eyewitness identifications, false confessions, preventing investigative bias, improving DNA testing procedures, CODIS, correcting wrongful arrests, leveraging technology and forensic science, and re-examining closed cases with an openness to new information.

The report is absolutely essential reading for anyone interested in wrongful convictions and what can be done to correct them.  Readers of my book Failed Evidence will also recognize that the emergence of this consensus at the top of the law enforcement profession is exactly what I have called for: “Police and Prosecutors Must Lead the Effort” (pp. 158-159).

For those in the Chicago area, I’ll be speaking about my book “Failed Evidence: Why Law Enforcement Resists Science” on Wednesday, October 16, at 5 p.m. at Gage Gallery, 18 S. Michigan Avenue.  The event is free and open to the public.  The event is sponsored by Roosevelt University’s Joseph Loundy Human Rights Project, and is part of their annual speaker series.  The link to the event is here.

The next public event for “Failed Evidence” will be in Pittsburgh on November 6, at noon at the Harvard Yale Princeton Club, 619 William Penn Place, The talk will be sponsored by the Allegheny County Bar Association and the Pitt Law Alumni Association.  More details to follow.

It has been almost fifteen years since the National Institute of Justice (NIJ) recommended comprehensive changes to the ways that police conduct identification procedures for witnesses.  Yet USA Today reports that a new NIJ report reveals that 84 percent of U.S. police departments still have no policy to govern how live lineups are conducted.

Readers of Failed Evidence know that almost three quarters of wrongful convictions  overturned through DNA feature incorrect eyewitness identifications; it’s the single largest source of error in these cases.  Readers also know that a growing number of jurisdictions (for example here and here,) have adopted changes to eyewitness identification procedures to eliminate these errors, through blind administration of lineups, use of sequential lineups, and other procedures that decades of research has proven to reduce these errors greatly.

But the NIJ study concludes that most of agencies have no policies for how officers conduct these crucial procedures.  Eighty-four percent of the responding police departments said that they had no policy for live lineups, and sixty-four percent said they had no policy for conducting photo lineups.

The study was conducted for NIJ by the Police Executives Research Forum, “a police research organization and a provider of management services, technical assistance, and executive-level education to support law enforcement agencies.”   PERF surveyed hundreds of U.S. police agencies, large and small, to determine how many had at least taken the step of creating a policy to require officers to use at least some of the recognized best practices for eyewitness identification.  PERF researchers found larger police agencies more likely than smaller ones to have a policy in place, but even among the large agencies, fully twenty-five percent did not have a policy.

For those who follow these issues, as I do, the fact that so much of the law enforcement establishment has failed to make changes in basic investigative procedures is not entirely shocking; the resistance to science and the changes it points to is the central theme of my book Failed Evidence.  But the results of the study are nonetheless disappointing, if only because eyewitness identification reform is one of the areas in which there is the greatest consensus that basic changes are needed; there is also broad consensus one what those changes needed most are: blind lineups, sequential lineups, valid ways of dealing with witness confidence statements, instructions to witnesses, and the like.

On Thursday April 4, and Friday April 5, I’ll be in Cincinnati for two discussions of Failed Evidence: Why Law Enforcement Resists Science (2012).  Both are free and open to the public.

On April 4, I’ll be discussing the book at 7:00 p.m. at the Clifton Cultural Arts Center, 3711 Clifton Avenue, Cincinnati OH 43220.  The event is sponsored by the ACLU of Ohio.

On April 5, I’ll present at talk at the University of Cincinnati College of Law at noon.  The address is  2540 Clifton Ave, Cincinnati, OH 45221.  The event is in Room 114.  The event is sponsored by the Lois and Richard Rosenthal Institute for Justice/Ohio Innocence Project.  The event has been approved for CLE credit for attorneys.

The current issue of Science magazine contains a review of Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012).  Here is a brief excerpt from the review:

Although science has long been recognized as our most reliable pathway to truth, people are sometimes reluctant to accept scientific evidence, particularly when it challenges established practices or cherished beliefs. In Failed Evidence: Why Law Enforcement Resists Science, David A. Harris accuses police and prosecutors of unwarranted skepticism toward science and tries to explain their perspective. His provocative book will interest those concerned broadly with rejection of science as well as those interested in the U.S. criminal justice system.

Science is published by the American Association for the Advancement of 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.

This week, Jurist, a national and international legal reporting website, is featuring my commentary on Failed Evidence.   Here’s a quick sample:

[The] image of a deep alliance between police work and modern science is misleading at best. With the exception of DNA work and certain kinds of classic chemical analysis, law enforcement generally does not embrace existing scientific work. In fact, police and prosecutors in the US resist science. The scientific work I am referring to involves the testing of the more traditional techniques of law enforcement investigation and prosecution: not the high-tech sheen of the DNA lab, but scientific testing of eyewitness identification, the interrogation of suspects and the more traditional forensic methods such as fingerprint identification. This is the daily bread and butter of law enforcement, and scientists have found it wanting. The science on these basic police investigation methods has existed for years — some of it for decades. It is rigorous, and has undergone peer review, publication and replication. It tells us what the problems with traditional police work are, and also gives us some straightforward ways of solving these problems. Yet, most — not all, to be sure, but most — of American law enforcement continues to resist this science and refuses to change its basic tactics to reflect the best of what science has to offer.

Jurist mixes straight reporting and commentary from the U.S. and around the world; it’s a great source for anyone interested in issues of justice and how it plays out in domestic and international situations around the world.  (Full disclosure: Jurist is supported by my own institution, the University of Pittsburgh School of Law, and has been guided and run since the beginning by my esteemed colleague, Professor Bernard Hibbitts.)  Check it out.

Yesterday, I wrote about the November 13 article in the New York Times that described how police had turned to sophisticated science involving isotope analysis to determine the geographic origin of corpses.  The article focused on the case of a Jane Doe in a 41-year-old murder case in Florida.  The science is fascinating; it allows the authorities to pinpoint where the victim came from with startling precision.  The Jane Doe in Florida, who had been thought to be a white or Native American woman from North America, grew up in Greece and had probably been in the U.S. for less than a year.

Why, I asked, had law enforcement so heartily embraced the science that could do this work,  even as most of law enforcement continues to ignore or resist more basic science on traditional methods of investigation, like eyewitness identification, interrogation of suspects, and old-school forensics?  Here are a few possible reasons:

1) In the Jane Doe case and the others discussed, there was no real alternative.  The cases were old, and most ways of investigating that could be tried had been tried, with no results.

2) The colder a serious case gets,the more likely that police will be open to trying new or untested approaches.

3) The type of science used — hard science, chemical analysis, very traditional sorts of science work — is appealing, in a way that the sorter science challenging eyewitness identification, for instance, is not.

4) The science described in the article does not challenge what police already do and believe in.  Therefore, it does not disrupt the status quo or challenge existing ideas about police expertise, while science about eyewitness identification, interrogation and traditional forensics challenges those things very directly.

My gut is that answers 1) and 4) probably do the most to explain what we see here.  What do you think?

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.

In connection with my talk on Failed Evidence at U. Minnesota Law School Thursday, Nov. 8, take a look at my Commentary piece in today’s Minneapolis Star Tribune, “In Some Areas, Law Enforcement Still Resists Science.”  Here’s a sample:

Everywhere you look, law enforcement and science seem to have formed a partnership. Look at the headlines on any given day, and there’s something like “DNA convicts killer in 1992 cold case.” Turn on the television, and there are the police in “CSI” and its innumerable clones solving cases with high-tech gadgets and test tubes and computers. The message is clear: The bad guys don’t stand a chance against the police officer and the scientists working together.

There is some truth to this: DNA has become an identification tool of unequaled power. But look beyond DNA, and you’ll see something different: When the science concerns eyewitness identification, suspect interrogations, or more traditional, non-DNA forensic testing, law enforcement doesn’t embrace science. Most police agencies and prosecutor’s offices in the United States actively resist the scientific findings on these common types of police investigation.