Posts Tagged ‘eyewitness’

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.

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.

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: Why Law Enforcement Resists Science will be the subject of two public forums this week, one in Washington, D.C., and the other in Baltimore.  Both events are free and open to the public.

On Wednesday, October 3, I’ll discuss the book at noon at American University’s Washington College of Law, 4801 Massachusetts Avenue N.W. (6th floor).  My talk will be followed by a panel discussion featuring former Assistant U.S. Attorney Dan Zachem and Professor Paul Butler of Georgetown University.  Full details are here.

On Thursday, October 4, I’ll lead a discussion of the book at 5:30 p.m. at the University of Baltimore School of Law, 1401 Charles Street.  The panel to follow will include Gregg Bernstein, the elected State’s Attorney for Baltimore.  Full details are here.

Today, September 20, at 5:30 p.m., I’ll discuss Failed Evidence: Why Law Enforcement Resists Science (NYU Press) at an author’s talk and panel discussion in New York City at John Jay College of Criminal Justice today, September 20, at 5:30 p.m.  Full details are here.  The talk is free and open to the public.  The talk will be followed by a panel discussion by four members of John Jay’s faculty:  Margaret Bull Kovera (Psychology), Nicholas D. K. Petraco (Forensics and statistics), Lawrence Kobilinsky (Forensics and DNA), and Eugene O’Donnell (Police Science and Criminal Justice Administration). The panel will be moderated by Zachary Carter, former U.S. Attorney for the Eastern District of New York.

Today Failed Evidence: Why Law Enforcement Resists Science is published by NYU Press.  I’ll present a discussion of the book, followed by commentary from a panel of local officials, today at the University of Pittsburgh  School of Law, 3900 Forbes Ave. (Forbes and Bouquet), Pittsburgh, at 5 pm.   The event is free and open to the public.  Events will follow over the coming two months in New York City (Sept. 20), Washington DC (Oct. 3), Baltimore (Oct. 4), Boston (Oct. 24 and 25), Minneapolis (Nov. 1), and Toledo (Nov. 7).  Details for the events can be found on the events page.

WESA FM, Pittsburgh’s Public Radio station, did an interview with me about the book; you can find the audio file here.

This morning the Pittsburgh City Paper, our local alt weekly, ran a long feature story on the book.  Here’s a sample:

Failed Evidence argues that reforms will “benefit not only innocent persons … but also those police and prosecutors.” Recording an interrogation, Harris says, can also prevent a defense attorney from making jurors believe a confession was coerced.

It’s not an easy case to make. Back in 2011, a state panel on wrongful convictions urged that interrogations be recorded, among other reforms. But dissenters argued that police needed “flexibility” to devise their own rules.  Harris says…”My pitch has been that these reforms do good things for you.” But often police “just disregard it.”

…”We’ll never have a perfect system,” Harris allows. But if obvious problems go unsolved, trust in the law itself erodes, and everyone suffers.

“With the justice system,” Harris says, “we’re all in it together.”

You can read the City Paper article here.

You can purchase the book here.


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.

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?



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.)