by Michelle Calderon, staff writer for AnaiRhoads.org
Criminal misidentifications that lead to wrongful convictions due to recognition problems are not unique in the criminal justice system of the United States. In fact, based on crime figures for 1986, figures has been estimated that “77,000 persons were suspects in a crime resulting predominately from eyewitness identification” (Yarney, 2003, p. 181). “Approximately 4,500 innocent people are convicted” each year because of mistaken eyewitness identification (Clark, 2001). In reality the identity of the perpetrator that committed the crime reported is not usually known. In turn the police are not certain that their suspect is actually the perpetrator.
When a crime committed by an individual is witnessed, law enforcement personnel obtain a description of the perpetrator and often begin an immediate search within the vicinity of the crime for someone matching the description. If within a couple hours a suspect is apprehended, the witness is usually taken to this individual for what is referred to as a show-up identification. This procedure is usually a one-on-one confrontation between the witness and the suspect. Other forms of preliminary identifications include corporeal lineups, photographic lineups, mug shot books and in some cases photographic show-ups. These identification procedures are often followed by a lineup procedure at a later date and a court room identification (Yarney, 2003, p. 181).
Show-ups are used when police catch a possible suspect fleeing from the scene of a crime and they are returned to determine if they can be identified by the victims or witnesses. The show-up is considered to be suspicious for its highly suggestive procedure. The witness is looking at only one person who is obviously in police custody (Lamson, 1997, p. 538). Being asked to pick someone in a face-to-face situation is more personal than in a lineup. On the other hand, show-up witnesses are required to answer only yes or no on a suspect, making people more cautious about making an identification, the researchers concluded. Such an identification method often reveals that those who had viewed a show-up photo misidentified the innocent suspect in both the perpetrator-absent and perpetrator-present lineups, presented one week later.
Lineups are used to help build evidence in a case, usually well after the crime because the suspect was not arrested right away. During the process of investigations, foils are usually chosen to match-to-suspect rather than match-to-description (perpetrator). “The same-foils design is not necessarily a good simulation of description based foil selection either. The reason for this is that foils are chosen to match a picture or very accurate representation of the perpetrator, rather than based upon the description of witnesses which are often lacking in detail or inaccurate.” (Yarney, 2003, p. 181). When suspect-matched lineups are produced, basically the innocent suspect has the most in common with the description of the perpetrator while the foils have less in common. This increases the likelihood that the suspect will be identified as the perpetrator. This is called the “backfire effect” (Yarney, 2003, p. 181). This effect may also be produced by the fact that foils will have more in common (more traits) with the suspect than they do with each other.
So with respect to the flaws within the show-up procedure, it has been said that the lineup procedure can be more incriminating because it requires a relative judgment due to the “foils” (or “fillers”- other suspect choice included in the lineup) whereas the show-up is more of an absolute judgment. It is also believed that police places great value on identifications and pressures themselves to come up with an answer in lineup situations. “Research shows that when people look at a lineup, the tendency is to quickly home in on the one person who looks most like their attacker even if the real perpetrator isn’t in the lineup” (Arthur, 2005). Both systems with two different methods for different incidences to arrest seem to only prove that there needs to be a better system for identifying suspects as to minimize if not eliminate altogether the possibility of convicting the wrong man. The obvious showing of only one suspect to the witness during a show-up and the reasoning that lineups may be encouraging witnesses and victims to incorrectly identify criminal suspects needs remedy. Research is crucially needed or in this case, accepted within the criminal justice system.
… the identification procedure has to be preceded by a comprehensive interrogation of the witness, wherein he is to describe the characteristic features which could facilitate recognition of the persons or objects to which his testimony or statements refer. Thereafter, in the identification procedure itself, he is, whenever possible, to be confronted with several persons or objects resembling the one to be identified. He should be urged to point out, for example, the identified object, without hesitation, and also to give the reasons why he had identified this one as the real one instead of any of the others … On the one hand, the investigator has to take care, to the best of his ability, to remove any changes that may have occurred in the object to be recognized and that may thus impair recognition: therefore, for example, he must not present the accused in his prison clothes, or with a distorting beard, etc. On the other hand, the investigator must beware of drawing the witness’s attention to the correct object through facial expressions, gestures, or external signs that differentiate the object in question from others. (Henke, 1838, pp. 705-706; translation by Sporer, 1982).
Although research interest in eyewitness testimony and identification increased throughout the 1980s and 1990s, the empirical evidence and recommendations made by these eyewitness researchers on how lineups should be designed and administered has had very little if not limited impact on the practices and decisions of the police and the courts until very recently. Eyewitness misidentifications have been recognized as the single most common cause of wrongful convictions (Huff, 1986). Therefore, the goals of science (description, understanding, explanation, and prediction) were recognized as the goals of expert researchers on eyewitnesses.
The most important contemporary advancement in eyewitness memory perhaps was the theoretical distinction made by Wells (1998). Police officers have little control over predicting variables such as witness characteristics, suspect characteristics, and environmental conditions. “The effects of lighting and distance on the accuracy of eyewitness memory, for example, could only be estimated and not controlled” (Yarmey, 2003, p. 181). In contrast, the criminal justice system does have control over system variables such as how a lineup is constructed and presented. So the focus was on finding a remedy through this more practical but difficult approach.
In 1967, the Supreme Court of the United States: United States vs.. Wade, Gilbert vs.. California, and Slovall vs.. Denno, recognized that the lineup is a critical stage in the constitutionality of police practices and procedures in obtaining eyewitness identifications. The problematic nature of eyewitness reports was explicitly addressed and acknowledged by the U.S. Supreme Court (Brigham,1999). But there were very little research evidence on eyewitness memory to contribute to the higher court’s deliberations, if, in fact it was even interested in justifying its decisions with scientific citations. The Wade decision granted the suspect the right to counsel during a live lineup, due process, and fairness. However, in Kirby vs.. Illinois (1972), the Supreme Court reversed itself, limiting the right to counsel during identification proceedings only after charges had been laid. As a consequence, police conducted their identification procedures before arresting suspects without the presence of counsel. One year later in United States vs.. Ash (1973), the U.S. Supreme court ruled that there was no right to counsel at any identification procedure, including photo identification. The Court reasoned that because the identification procedures could be reconstructed at trial and analyzed for suggestibility, there was no need for counsel at the identification stage.
Following Wade, regulations for the conduction of lineups, which conformed to the guidelines established by the Court to meet the criteria of “due process” and “fairness,” were developed both by police agencies and by different groups of lawyers (Levine, 1973). However, the guidelines were general such as advising that lineup members (fillers or foils) be similar in age, sex, height, weight, race, and clothing to the suspect. There was also no existence of a consistent guideline across American police jurisdictions and legal groups. Therefore, the quality of these guidelines in terms of fairness could be described as minimal at best.
In addition, although the problems involving suggestibility and identification were noted in Neil vs.. Biggers (1972) and Manson vs.. Brathwaite (1977), the pervasiveness of these problems was not appreciated (Loftus, 1975, 1992). During the Neil case reaffirmed in Manson, the Court established that five factors should be used to determine the reliability of an identification: “1) the witness’s opportunity to view the criminal during the crime; 2) the length of time between the crime and the subsequent identification; 3) the level of certainty demonstrated by the witness at the identification; 4) the accuracy of the witness’s prior description of the suspect; and 5) the witness’s degree of attention during the crime” (Yarmey, 2003, p. 181) These criteria were to be used in evaluating the admissibility of the identification even though the identification procedure may have been suggestive. Again, these criteria were established with little or no consultation with psychological experts on perception and memory. Subsequent research has shown that only two of the factors listed in Neil are related to the estimation of the accuracy of identification (opportunity to observe and the length of the retention interval; Brigham, 1999).
Perhaps the major breakthrough that emphasized the prominence of the psychology of eyewitness evidence to legal decision-making was the application of DNA technology to forensic issues. “Of the first 40 cases in the United States in which individuals were shown to have been falsely convicted, 36 of these cases (90%) involved one or more eyewitnesses who misidentified the innocent suspect” (Wells, 1998).
Attorney General Janet Reno in the mid-90’s, recommended that the the U.S. Department of Justice practice uniform collection and preservation of eyewitness evidence. Reno included evidence based on the scientific findings of applied psychology. In 1999, a national guidelines handbook was created by the Technical Working Group for Eyewitness Evidence. Technical Working Group of Eyewitness Evidence included members of police departments, prosecutors, and defense lawyers. The guide covers all aspects of a criminal investigation: eyewitness evidence, starting with the emergency call from a witness/victim to a call-taker or dispatcher, preparing and using mug books and composites, instructing and interviewing witnesses, documenting the procedure, recording witness recollections, assessing the accuracy of individual elements of a witness statement, conducting showups, composing lineups, instructing the witness prior to viewing a lineup, and conducting simultaneous and sequential lineups.
In order to “minimize potential problems such as justification, feasibility, and independence of rules, a proposal for the conduction of lineups and photograph arrays be limited to only four recommendations: double-blind lineup testing, nonbiased instructions, the matching of fillers to the witness’s description, and the immediate assessment of confidence” (Wells, 1998).
Furthermore, Kassin (1998) has recommended that videotapes be made of all lineup and witness identifications. Scientific psychological research on those factors that influence eyewitness testimony clearly has influenced policy-makers in the United States.
Currently, these eyewitness memory researches have made significant impacts on legal observers and have influenced how police conduct their present-day investigations. Of course a leading factor to more efficient methods of conducting investigations and identification can be attributed to the rise of technology and its purpose in forensics investigation. But this should not lessen the emphasis on good police investigation which would in this case involve a type of line up to identify suspects. While expert testimony is still being excluded in some parts of the United States, police departments have taken a different approach to solving this issue of costly errors to human beings wrongfully accused. The old methods of using show-up and line-up are being replaced now mostly via photo lineups. Normally, the witness is shown a suspect’s mug shot along with mugs of five other people who look similar. The lineups are supervised by detectives involved in the cases who know who the suspect is. Investigators present mug shots one at a time to witnesses. “Researchers say that when witnesses are shown all six photos at once, rather than one at a time, a natural tendency kicks in to compare faces and judge which looks most like the one they remember” (Arthur, 2005). As a result the witnesses tend to make a relative judgment as opposed to a true recognition. Obviously some thought was put into the process of changing and implementing these new procedures. Police now mainly use photo lineups in 99% of criminal cases. Finally, research findings and psychological factors are being inter-twined into our criminal justice system constructively.
Arthur, L. & Weaver, J. (2005, August 4). Police Reforms: Police lineup methods often flawed, experts say. Herald.com. Retrieved November 6, 2005 link
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