By Peter A. Modafferi, Chief of Detectives, Rockland County District Attorney’s Office, New City, New York, and Chair, IACP Police Investigative Operations Committee; Mike Corley, Assistant Chief, Richardson, Texas; Ron Green, United States Secret Service, retired, and Executive, eChannels and Customer Solutions Division, Bank of America, Charlotte, North Carolina; and Chris Perkins, Deputy Chief, Roanoke, Virginia
Chicago, Il, August 17, 2009 — A federal district court judge has ruled in favor of three retired Chicago police officers who were sued by Jerry Miller in a federal civil rights lawsuit. Miller was convicted in 1982 of raping a woman at a parking garage in the Gold Coast section of Chicago.
Miller was identified by two employees who worked at the parking garage and stopped a man — later identified as Miller — as he was attempting to drive the rape victim’s car out of the parking garage, with the victim locked in the trunk.
After spending 26 years in prison, Miller was released after DNA testing from the crime scene proved that Miller was not the rapist. Shortly thereafter, Miller filed a civil lawsuit, alleging that several now retired Chicago police officers had framed him for the crime by conducting a suggestive lineup and failing to disclose material exculpatory evidence.
Judge Suzanne B. Conlon rejected all of Miller's claims against the officers and granted their motion for summary judgment in its entirety, finding as a matter of law that the officers did not engage in any misconduct.
|Chair’s Note: This article is distinct from the articles normally published in the Police Chief magazine. Traditionally, the magazine’s articles are pragmatic, giving police executives practical advice on how to handle issues and problems. Lessons learned from successful processes and procedures for police leadership and management are the trademarks of the Police Chief magazine. However, in this article, actual firsthand accounts from members of the IACP Police Investigative Committee will raise more questions than are answered. Eyewitness identification is the subject of much debate, and there are many strong and divided opinions on the subject. The purpose of this article is to register a firsthand accounting of some of the issues directly from the trenches by the law enforcement executives involved and to continue the debate. In the view of the IACP Police Investigative Operations Committee, the debate is not finished. Peter A. Modafferi, Chair, IACP Police Investigative Committee.|
yewitness testimony is an important investigative tool and extremely compelling in court. Unfortunately mistaken eyewitness identification is the single greatest cause of wrongful convictions nationwide. Mistaken eyewitness identification has been reported to play a role in more than 75 percent of the convictions that have been overturned by DNA testing.1 At the time of this writing, just over 240 convictions have been overturned because of DNA testing since these tests began in 1989.
The issue of mistaken eyewitness testimony is now under the microscope. In lawsuits and courtroom procedures, this valuable tool of law enforcement is being tested and reviewed as the criminal justice system seeks to protect citizens against wrongful convictions.
Is the answer a procedural one—namely, allowing expert witnesses to testify in trial courts before a jury on the topic of mistaken eyewitness identification? Should police officers be held civilly liable for obtaining and acting on what later is determined to be mistaken eyewitness identifications? Are the prosecutors placing too much reliance on eyewitness identifications? These are issues currently before federal and state courts.2
As the issue evolves, one thing is certain: police officers are and will continue to be in a difficult position. While no police officer wants to see the conviction of an innocent person, eyewitness identification, though a thorny issue, is vital to an investigation.
Studies have identified two key factors that play into a witness making a mistaken identification—improper suggestion by the officer and others, and inaccurate perception by the witness.3
Improper Suggestions: Police officers with detailed knowledge about the case may inadvertently communicate an identification suggestion to the witness. Usually this is transferred by body language or some other inadvertent nonverbal communication. The implementation of solid procedures, investigator training, and process monitoring should provide improved accuracy and establish a concrete foundation to work cases.
Witness Inaccurate Perception: Inaccurate perception by the witness is difficult to address because it is derived from the average person’s lack of training in observation compounded by a stressfull situation. The victim may just be unable to identify a suspect even after coming into close face-to-face contact.
Cross-Racial Identification: The Innocence Project further suggests that there is also a third factor related to misidentificationcross-racial identification. The perceived issue of cross-racial identification suggests that people of one race have a difficult time recognizing facial attributes of other races. The science on the cross-racial identification factor is still undergoing a great deal of discussion. As a factor, it is one that police executives and officers should come to understand, but this factor will not be discussed in this article.
Confronting the Key Factors
Most witnesses have little training or experience in observing their environment. The added stress of a criminal encounter can distort a witness’s perception of events. As officers conduct their investigations, the mental images that remain with the witness may become a critical factor in completing a successful investigation. After a crime has been committed, it is too late to teach a witness techniques he or she could use to capture the events as clearly as possible. Investigators are left with the recollection of the witness that is as accurate or as inaccurate as the witness’s memory can be. Just as investigators will evaluate a videotape to see if it will be beneficial to their investigation, they should invest a good deal of effort in evaluating a witness to determine the level of perception that the witness may have regarding the event. After conducting their interviews to establish how good the witness’s perception of the event may be, they must decide whether to allow the witness to attempt identification.
The IACP Training Key 597, “Assessing Witness Credibility,” describes an assessment of witness credibility that goes beyond just the witness’s perception of the event. The Training Key suggests that to assess the credibility of a witness, officers should consider such factors as the witness’s demeanor, capacity, opportunity to perceive, character, bias, prior inconsistent statements, recollection, and background and training. Of those factors, the ones that are critical to the witness’s ability to provide visual identification are the witness’s capacity and opportunity to perceive.
Views From The Front Lines
As chair of the IACP Police Investigative Operations Committee, I have discussed the wrongful conviction issue in police meetings during the last several years. In these discussions a central attitude is usually present: “It won’t happen on my watch.” I applaud the dedication and determination of the officers, but I also know that well-trained, educated, determined, and dedicated investigators can make mistakes. Obtaining a perspective from law enforcement leaders is important to a holistic understanding of the issue. Three leaders have stepped forward to provide their experience and thoughts and to help provide a better understanding of the issue within the law enforcement community. Following are their firsthand accounts from the trenches.
Mike Corley, Assistant Chief, Richardson, Texas
Mike began his law enforcement career in 1976 in Midland, Texas. After being hired by the Richardson Police Department in 1980, Mike moved up through the ranks to his current position as assistant chief in charge of the Operations Bureau, which encompasses the Patrol and Investigation Divisions. He is an honors graduate of Midland College and Midwestern State University, where he obtained his bachelor’s degree in criminal justice. Mike is a graduate of the Texas Command College and the FBI National Academy and a member of the Texas Police Association (TPA), the Texas Police Chiefs Association (TPCA), and the North Texas Police Chiefs Association (NTPCA). He currently serves on the Police Investigative Operations Committee of the IACP. Mike’s perspective on eyewitness identification is based on many years of training and expertise in law enforcement.
Mike Corley - I believe that I bring a unique perspective to this debate. I was the lead investigator in a brutal rape case that occurred in 1985. A suspect was identified via a photo lineup. He was convicted and sentenced to two life sentences that the judge ordered to run consecutively. Last year, DNA evidence cleared the suspect, and he was released from prison after serving 23 years of his life sentence. Further DNA testing identified the actual offender, who was already in a federal prison on an unrelated charge.
The investigation of this case was thorough and complete. The witness (the victim) was intelligent and an excellent observer (she is currently employed as a paralegal at a prestigious law firm). The suspect did not cover his face, and the victim got a good, long look at the suspect’s face. The victim’s identification of the suspect was positive. She did not hesitate at all. All of this seemed to add up to a legitimate, legal suspect identification. A rape kit was performed on the victim, and evidence was obtained from the swabs. But at the time, I was told that the actual evidence was so minuscule that it did not have evidentiary value (keep in mind, these were 1985 standards). A complete review of this case is not practical in this forum, but I will say that along with some limited circumstantial evidence, the criminal case almost completely relied on the victim’s identification of the suspect. This by no means is ideal, but the witness was strong and the identification was good—or so I thought.
The district attorney ended up filing a burglary charge and a sexual assault charge against the suspect, and he pled not guilty to both charges. He was tried by a separate jury on each charge. Two different juries listened to the testimony about the identification of the suspect and the identification procedure. Both juries considered the witness and the procedure credible. Both juries were confident enough to sentence him to the maximum sentence allowed by law, life in prison.
I have always taken great pride in my work, and that was especially true when I was an investigator. My supervisors recognized something in my work also, as I was given the big cases quite often. My work on this case was no different. As I stated before, it was thorough and complete. So when I first learned of the Innocence Project’s interest in the case, I was not concerned. I was confident that the new DNA test would confirm what I already knew. But I was wrong. When I learned of the actual test results exonerating the suspect, it was like being kicked in the stomach. How could this happen? The victim in this case was also crushed. Not only did she have to cope with the guilt of knowing a man was wrongly imprisoned for 23 years, she basically had to relive the entire experience that she thought was so far behind her.
In another bizarre twist, it turns out that the actual offender was indeed included in the original photo lineup. In 1985, I had placed seven pictures in the photo lineup. All of the suspects had similar physical features and some type of connection to crime (criminal records) and the location of this offense. As it turns out, the photo of the actual suspect was placed right next to the photo of the suspect the victim originally identified. The photos were side by side.
Since the exoneration, and after countless discussions, the victim and I met with the exonerated suspect. We met face-to-face at the district attorney’s office. It was a very moving experience and provided much closure for all of us. If you had suggested anything like this to me just a few short months ago, I would have called you crazy. But I am glad to say that all three of us have come to grips with what has happened. The only issue lacking closure is the true suspect. He is scheduled for federal parole in a few years. Even though the DNA evidence is solid, the statute of limitations has expired. We cannot charge the actual offender with this crime.
I cannot explain how a good witness made a bad identification. My point in making this example is simply to say that it can happen to any witness and any police department. Witness identification is not a science, but it is certainly a vital part of suspect identification. As leaders, we must challenge ourselves and our subordinates to use the best procedures. The consequences are too high.
Mike’s Recommendations: The dilemma faced by law enforcement today is the vast amount of conflicting information related to witness identification; we all want to ensure that innocent persons are not identified, but what procedure is best? There is a relatively new method of photo lineup identification called the sequential, double-blind procedure. This procedure involves presenting suspects’ photographs one at time (as opposed to an array of simultaneous photos), and the photographs are presented by an officer who does not know the identity of the actual suspect. Is this new, contemporary procedure the best method? Is the old procedure (photo array) a thing of the past? The answer to this question is problematic.
Research in this area has been initiated but for the most part the findings are neutral at best and inconclusive at worst. The first problem associated with this research is identifying the variables. How do researchers measure false identifications? How do researchers conclude that fewer false identifications resulted from a particular method? Solid, accurate data from this research is difficult to obtain (through no fault of the researchers). Initial research has indicated that the sequential, double-blind method results in fewer false identifications. Subsequent research revealed that this method produced fewer accurate identifications than the old photo array method.
Many concerns have been expressed by proponents of each method that will not be addressed here. We will simply acknowledge that (1) there is much controversy concerning the two methods and (2) there are no concrete conclusions that can be drawn from the research currently available. But the plain and undeniable fact is that DNA exonerations tell us that there are problems with photo lineup identification procedures. The answer is not easy and the answer is not clear. While we do not have all the answers, it is imperative that law enforcement leaders stay abreast of this issue and provide appropriate research, resources, and energy. The consequences for inaction are not acceptable; decisions and protocols will be decided for us by state or federal legislators and private interest groups.
The worst thing that we can do as leaders is stick our heads in the sand and hope that the problem will go away. It won’t. As leaders, we need to confront this issue head on.
Ron Green, United States Secret Service, Retired
Ron is the prevention and response executive for the eChannels and Customer Solutions Division at Bank of America. Before taking this position, Ron spent more than nine years as a U.S. Secret Service agent. His time with the Secret Service included roles in the field and in the Criminal Investigations Division at Secret Service headquarters. He is a graduate of the United States Military Academy and has a graduate certificate from George Washington University. Ron is providing his perspective as a former federal agent.
Ron Green - A wrongful conviction is such an appalling event that even one instance of it is too many. The beyond-a-reasonable-doubt requirement for a conviction is an established and purposeful control to protect the innocent. Mistaken witness identification is a significant threat to the working of the criminal justice system.
Taking the time to assess witnesses and deliver lineups and photo reviews properly is critical to an investigator’s success. Investigators must understand their goal is to uncover the facts and find the truth and not merely to catch the crook. We want a perpetrator found, but not at the expense of the truth.
While I was still a Secret Service agent, one of my investigations resulted in a shooting event. I was no longer just an investigator; I became a witness in the event. Another agent was required to conduct the investigation of the shooting. What was very revealing to me was the remarkable difference in the details of the event that each of the participants had, especially the recollection of the three agents working on the investigation. While the larger pieces of the story and timelines were the same, the little details were very different. The intensity of the stress created by this incident made a profound impact on my memory. The investigating agent talked me through the process of preparing to view the photo array he put together. The agent provided me with a speech that I had given time and time again to witnesses in cases I investigated, but its meaning was much different to me now as the witness. As an investigator on the case leading to the shooting I wanted to say that without a doubt I could identify the suspect. I had the best vantage point, but in the chaos of the event and listening to the instructions I knew that I could not accurately identify the suspect. I remembered looking directly at the suspect as the incident unfolded. Unfortunately, all I could remember were his eyes, and they appeared to me to be larger than his entire face. I remembered more of a cartoon caricature than an actual person. I didn’t remember anything else about the way his face looked. As I looked at the photo array I saw no one who had grossly enormous eyes, and while I initially felt like I had an obligation to make an identification I knew I could not. The way the other agent provided the instruction and then the time I took to actually consider it helped to make a difference under the circumstances.
There is a lot to be said for the training we provide to investigators on the use of identification tools like photo arrays or lineups. Easy reminders embedded in the tools reinforce that learning and provide a checklist approach to delivering the orientation to witnesses. The U.S. Secret Service photo array tool at the time had a witness briefing directly on the document. It’s a little thing, but embedding directions on the tools used during an investigation can be very helpful to investigators.
Taking the time to assess the witness and not cause undue pressure on the witness–the importance of those things needs to be imparted to investigators. Using the powerful examples where witness misidentification has led to wrongful convictions can help to show where failing to be thorough in what we do actually revictimizes the witnesses we strive to protect.
Ron’s Recommendations: It is better to be proactive and ensure that we create the right training and set the right tone before standards and directives are forced upon us by individuals who do not know or understand what investigators do. To this end, robust training on the execution of photo and live lineups is a necessity.
Careful instruction should be formalized and used in written and spoken form with witnesses. The person viewing a lineup should be told that the perpetrator may not be in the lineup and that the investigation will continue regardless of the lineup result. They should also be told not to look to the administrator for guidance.
Fillers (the nonsuspects included in a lineup) should resemble the eyewitness’s description of the perpetrator. The suspect should not stand out (for example, he should not be the only one with facial hair). Eyewitnesses should not view multiple lineups with the same suspect.
Immediately after the lineup procedure, the eyewitness should provide a statement, in his or her own words, articulating his or her level of confidence in the identification.
Chris Perkins, Deputy Chief, Roanoke, Virginia
Chris Perkins graduated from the University of Tennessee in Knoxville, Tennessee, in 1991. Chris has been a police officer for 17 years with the City of Roanoke Police Department. Presently, he is the deputy chief in charge of the Operations Division, and his responsibilities include supervision of the Criminal Investigations Bureau and the Patrol Bureau. Chris is an alumnus of the Professional Executive Leadership School and the National Criminal Justice Command College. He currently serves on the Police Investigative Operations Committee of the IACP. Professional memberships include: International Association of Chiefs of Police, Virginia Association of Chiefs of Police, and Virginia Homicide Investigator’s Association.
Also contributing to his account are Captain Curtis Davis, Criminal Investigations Bureau, Roanoke Police Department, and Captain Phil Patrone (retired), Roanoke County Police Department and accreditation manager, Roanoke Police Department, Virginia.
Chris Perkins, Curtis Davis, and Phil Patrone - In law enforcement, the needs of the one must carry equal weight to the needs of many. Therefore, a single incident of misidentification, even through no fault of our own, is still unacceptable. If it takes more work to ensure the integrity of the process, then we owe that extra time and effort to society. No matter how professional we may be, there is some predisposition to believe eyewitness identification. We must consider how this predisposition may influence our investigative procedures.
“Eyewitnesses play a vital role in the administration of justice in this country. Indeed, in some cases, eyewitness evidence may be the only evidence available.”4 We never want to convict an innocent person. As police officers, we work diligently so we never have to face the reality of a wrongful conviction. As managers, we must provide officers with strong procedural guidelines that protect everyone involved. We recognize that eyewitness identifications have drawn criticism in recent years. We do not want to enter the fray as to which identification process may be superior to the other. Rather, considering the legitimate scrutiny directed toward eyewitness identifications, the Roanoke Police Department decided it was important to review all available literature and through the guidance provided by the Commission on Accreditation for Law Enforcement Agencies, Inc. (CALEA), to adopt a policy that would minimize to the greatest extent possible eyewitness misidentification.
Revising our policy on eyewitness identification involved a review of numerous studies, articles published by the Innocence Project, articles published by the National Institute of Justice (NIJ), model eyewitness identification lesson plans, model policies, and numerous state and federal cases relating to eyewitness identification. Although the recommendations for improving eyewitness identifications do not all share the same conclusions, they do share many of the same suggestions for eyewitness identification procedures.
The methods used to construct and conduct lineups may increase the risk of eyewitnesses making misidentifications. Research indicates that a reduced likelihood of misidentifications occurs when the eyewitness is informed that the suspect might not be in the lineup, when the lineup administrator ensures that the suspect does not stand out in the lineup, when the lineups are administered by someone who does not know who the suspect is, and when witnesses are asked how certain they are of their choice before any other conversations occur between the administrator and the eyewitness.5 The NIJ further recommends that only one suspect be included in each lineup, along with a minimum of five fillers who generally fit the eyewitness’s description of the suspect. NIJ recommends that the officer assure the eyewitness that the investigation would continue regardless of whether an identification is made.6
Chris’s, Curtis’s, and Phil’s Recommendations: We decided to revise our policy to incorporate the research findings that served to best protect against misidentifications. There is good empirical evidence to indicate that eyewitnesses engage in relative judgment when making identifications.7 One of the critical decisions we made was to select a procedure that limits the impact of relative judgment in eyewitness identifications. In an effort to reduce the opportunity for relative judgment to occur, we adopted the sequential lineup procedure. In a sequential procedure, the eyewitness views one lineup member at a time, and the eyewitness must decide whether that person is the suspect prior to moving on to the other members of the lineup. The sequential lineup has the ability to shift the eyewitness’s judgment process from one of comparisons between lineup members to one of comparisons between each lineup member and the eyewitness’s memory of the suspect’s appearance.8
We also decided to incorporate the double-blind lineup procedure out of concern that the lineup administrator could influence the eyewitness if the administrator knew the identity of the suspect. In a double-blind lineup procedure, the administrator does not know the identity of the suspect.9 This procedure serves to eliminate any such influence that some experimental studies have shown to exist.10
We are quite willing to revise our policy and training in any way that serves to limit the opportunity for an eyewitness to make a misidentification. For departments who are considering a revision to their eyewitness policies or for those departments drafting their first policy, we would strongly recommend a review of your state’s pertinent laws and court rulings.
The Chair’s Charge
Today’s law enforcement executives must face the issue of wrongful convictions. Regardless of how convinced an executive is that it cannot happen on his or her watch, it is essential that the procedures, processes, and understandings are in place to minimize the possibilities. Today’s executive must stay current with developments on the issue and revise the department’s training and procedures to ensure that we put the right person in jail. ■
1The Innocence Project, “News and Information,” fact sheet, Eyewitness Identification Reform, www.innocenceproject.org/Content/165.php (accessed August 27, 2009).
2The Empire State Prosecutor (Summer 2009), Albany, New York.
3IACP Training Key 600, “Eyewitness Identification.”
4Beth Schuster, “Police Lineups: Making Eyewitness Identification More Reliable,” NIJ Journal 258 (October 2007): 1.
5Gary L. Wells and Eric P. Seelau, “Eyewitness Identification: Psychological Research and Legal Policy on Lineups,” Psychology, Public Policy, and Law 1, no. 4 (1995): 765.
6United States Department of Justice, National Institute of Justice, Eyewitness Evidence: A Trainer’s Manual for Law Enforcement, Sample Lesson Plan: Identification (Washington, D.C.: 2009), 1.
7Gary L. Wells, Mark Small, Steven Penrod, Roy S. Malpass, Solomon M. Fulero, and C. A. E. Brimacombe, “Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads,” Law and Human Behavior 22, no. 6 (1998).
8Gary L. Wells and Eric P. Seelau, “Eyewitness Identification,” 772.
9Beth Schuster, “Police Lineups,” 2.
10Gary L. Wells’s comments on the Mecklenburg Report, http://www.psychology.iastate.edu/faculty/gwells/Illinois_Project_Wells_comments.pdf (accessed August 27, 2009).
|“Assessing Witness Credibility,” Training Key #597|
|During the course of an investigation, assessing witness credibility becomes an essential function in determining how reliable and trustworthy a witness will be. It is the investigator’s responsibility to property analyze a witness’s credibility in order to complete a thorough investigation.|
|“Eyewitness Identification,” Training Key #600|
|Recent research findings have prompted development of new guidelines and protocols for using eyewitness identification—whether it be through photo arrays, showups, or lineups.|
|Available from the IACP: Training Keys, International Association of Chiefs of Police, 515 N. Washington Street, Alexandria, Virginia 22314; 800 THE IACP; e-mail: firstname.lastname@example.org|