The Weakness of Police Lineups

A recent New Jersey Supreme Court case may change the rules for how juries (and judges) treat evidence from police lineups. The Court's decision applied many years of eye-witness identification research showing that eye-witness procedures are flawed and can result in mis-identifications. The decision went on to attached consequences for police, and other law enforcement, who fail to take necessary precautions to reduce the subtle pressures applied to eye-witnesses to make an identification. Such pressures often result in mistaken identifications, which send innocent people to prison. The most important aspect of the research mandated two practices: First, that lineups are blinded and administered by someone who is not familiar with the suspect and who is not one of the primary investigators on the case; and second, photo arrays should be presented sequentially rather than as a group. Both practices, studies find, decrease the pressure on witnesses to pick someone and guard against influence.

On Crossing The Eyewitness

Gideon posts here about an excellent article published by the Widener University School of Law concerning cross-examination of eyewitness testimony. I've posted here, here, and here about the subject and problems with these often flawed IDs. Gideon points out the paper gives us a roadmap to argue the admissibility of expert testimony. I agree with Gideon the article is a must read for criminal defense lawyers.

Excluded Testimony Leads to Reversal

Dr. Karen Franklin reported here that an Illinois appeals court overturned a robbery conviction because the trial court did not allow expert testimony regarding the fallibility of eyewitness identification evidence. Mr. Walter Allen was sentenced to prison for a 2001 robbery-shooting. The robbery was committed by two men wearing "hoodies" who entered a dry cleaning business, demanded money, and shot a woman employee in the back. From her hospital bed, the woman identified Allen from a photograph as the shooter. Dr. Franklin stated further:

At Allen's trial, the judge refused to allow an expert witness to testify for the defense about problems with eyewitness identification. The judge said that the testimony of Dr. Steven Penrod, a respected psychology-law professor at the John Jay College of Criminal Justice, was unnecessary and might confuse the jury.

In its opinion in People v. Allen, the appellate court pointed to research establishing that eyewitnesses are often wrong, and that jurors have misconceptions about eyewitness accuracy. It cited prior Illinois rulings stating that expert testimony can dispel myths and correct misconceptions, and that "the science of eyewitness perception has achieved the level of exactness, methodology and reliability of any psychological research."

These cases are grist for the College Station criminal defense lawyer's mill. Earlier this summer we examined some important issues regarding eyewitness misidentification here and here. Traditionally, trial judges are given wide latitude when deciding whether to allow expert psychological testimony. In Texas courts, the foundational cases regarding the admissibility of expert testimony are Daubert v. Merrell Dow Pharmaceuticals and Kelly v. State. These cases say judges can exclude such testimony in some cases, but first they must carefully scrutinize the proffered testimony and determine whether it is relevant. Further, judges must determine whether the expert testimony might be helpful to the jury. In the Allen trial the court said no such careful scrutiny took place.

The aggressive criminal defense lawyer should develop expert testimony to discredit the testimony of eyewitnesses. Even in cases where lawyers are court appointed, motions requesting funds for expert assistance should be an integral part of the lawyer's motions practice. With cases like Mr. Allen's to back us up, even the denial of our request for funds can lead to a reversal.

Eyewitness Misidentification (Part II)

The press accounts involving convicted cop killer, Troy Anthony Davis, have been focusing on the fallibility of eyewitness identification. In Davis' case there was no physical evidence and the entire case was built upon eyewitnesses to establish the killer's identity. However, seven of nine eyewitnesses who helped implicate Davis for the murder have since recanted their testimony. Grits for Breakfast has also noted the interest in eyewitness identification problems here.

Please review the original post in this series on eyewitness identification. There we stressed the importance of understanding the dynamics involved in these cases by the criminal defense lawyer. Since I promised to explore the nature of eyewitness testimony, its weaknesses, and how an experienced lawyer can use improper police procedures and expert testimony to discredit the testimony of an eyewitness, let's get to it.

There are many sources of error in eyewitness identification. Any identification results from a complex interaction of witness internal and external memory factors. The internal factors relate to the witness' ability to perceive and accurately remember an event. External factors are outside influences in the identification process itself that lead the witness to select a particular person as the perpetrator of a crime. This week we will explore the internal memory factors that affect eyewitness identification.

The human memory generally consists of 3 phases. First, there is the acquisition phase where the witness perceives the event. Second, there is the retention phase where time elapses before the witness must recall the event. Finally, there is the retrieval phase which occurs when the witness attempts to recall the stored event. Elizabeth F. Loftus, Eyewitness Testimony: Civil and Criminal 10 (3d ed. 1997)

During acquisition there are factors that may influence the witness' perception like their age, gender, influence of drugs or alcohol, witness expectations, stress, fear, weapons focus, duration of the event, and differences in race. See Gary L. Wells & Elizabeth F. Loftus, Eyewitness Memory for People and Events, in Comprehensive Handbook of Psychology 157 (A. Goldstein, ed., 2003)

During the retention phase the memory may be altered through the loss of information (forgetting) or the introduction of new information through media sources, conversations with other witnesses, and leading questions by the police.

Finally, at the retrieval phase the types of questions used to elicit the memory may further impact the witness' recollection. For example, questions which suggest the answer like: "Was the robber tall?" rather than "What height was the robber."

The next installment in this series will focus upon the external memory factors which may influence an eye witness identification. I'll try to get that posted soon.

Eyewitness Misidentification (Part I)

The ability of an eyewitness to take the stand and identify the accused as the perpetrator of a crime often provides the essential component of the prosecutor's burden of proof in a criminal case. However, an ever growing number of DNA exonerations have proved eyewitnesses indeed make incorrect identifications, even when procedural safeguards were followed. Even the Supreme Court of the United States recognized the dangers of eyewitness testimony when it stated: "The influence of improper suggestion upon the identifying witnesses probably account for more miscarriages of justice than any other single factor - perhaps it is responsible for more such errors than all other factors combined." U.S. v. Wade, 388 U.S. 218 @ 229.

The Court stated in later opinions the testifying witness must recount events with a total stranger under circumstances of emergency or emotional stress. The witness' recollection of the stranger can be distorted easily by the circumstances or by later actions of the police. Manson v. Brathwaite, 432 U.S. 98, 111-12.

From the Innocence Blog:

Eyewitness misidentification is the leading cause of wrongful conviction, and Iowa State Professor Gary Wells has studied the issue for three decades. In an article published this week on the website of the Nieman Foundation for Journalism at Harvard University, Wells writes guidelines for local reporters and activists to question whether their local law enforcement agency has enacted important identification reforms based on solid scientific research.

Click here to read the article. (Nieman Watchdog, Harvard University, 6/12/07)

It is critical for the Bryan/College Station criminal defense lawyer to understand the dynamics involved in eyewitness identification cases. In future posts we'll explore the nature of eyewitness testimony, its weaknesses, and how an experienced lawyer can use improper police procedures and expert testimony to discredit the testimony of an eyewitness.