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Univ. of San Diego School of Law

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Tuesday, September 27, 2005

Connecticut: Law Enforcement Agencies Propose New Eyewitness ID Procedures

Leaders in Connecticut's law enforcement community have devised changes to the State's eyewitness ID procedures.  These changes will offer more expansive procedural protection than the procedure the State's Supreme Court urged in a decision last week--that police tell future witnesses, who are about to view a suspect or a photo array, that the perpetrator of the crime "may or may not" be present.

From the Journal Inquirer on NACDL.com: "[T]he development of the new procedures has been going on for months and involves the 13 regional state's attorneys, the Connecticut Police Chiefs Association, and officials in charge of the state-police and municipal-police academies.

Even before the Supreme Court issued its decision [last] week in a case involving the knifepoint robbery of a pedestrian on an East Hartford street, the law-enforcement group had reached a consensus on a set of changes that includes the one urged by the high court...While refusing to overturn the robbery conviction of former Hartford resident Laquan Ledbetter, 22, the Supreme Court strongly suggested that police tell future witnesses who are about to view a suspect or a photo array that the perpetrator of the crime "may or may not" be present.

If police fail to do so, the court ruled, the trial judge must instruct the jury that the approach taken 'tends to increase the probability of misidentification.'  Psychological research has shown that witnesses tend to pick the person in a photo array who looks most like the criminal. The warning that the criminal "may or may not" be present is designed to reduce that tendency.

Morano, [the Chief State's Attorney,] said the 'may or may not' warning was one of the changes the law-enforcement group had decided on before the Supreme Court decision. If police follow the new procedure consistently, he said, there will be no need for any trial judge to give the cautionary jury instruction set out in the decision.

Standard instructions

Under the new procedure, Morano said, a police officer showing a suspect or photo array to an eyewitness will be expected to read a set of standard statements from a form, just as police read the famous Miranda warnings to suspects before interrogating them.

He said those statements will include reminders that it is as important to clear innocent people as to identify the guilty and that people's appearance can change due to changes such as hair styles -- and the statement that the perpetrator may or may not be present. In addition, the officer will say that police will continue to investigate the incident "whether you identify someone or not."

The form also will include a space for the officer to write down any statements the witness makes while viewing the suspect or the photo array. The witness will subsequently be asked to sign the form to confirm what was said.

In addition, the form will include instructions to the officer: not to use words, gestures, or expressions that indicate who the suspect is; to stand outside the field of view of the witness, if practical, in order to avoid giving even subtle, nonverbal feedback; and to avoid making any comment on an identification made by the witness.

The last instruction is designed to avoid the following problem, which has been uncovered by psychological research:

Witnesses who are told they have picked the suspect from a photo array tend to become more confident in the identification. Judges and juries, in turn, give great weight to the confidence of the witness in deciding whether to believe the identification."  Other proposed procedures were rejected. More... [Mark Godsey]

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