Monday, March 9, 2009
Those of you who watched 60 Minutes last night saw the interesting story, Eyewitness: How Accurate is Visual Memory? And the answer is, "Not very." The story detailed how Jennifer Thompson misidentified Ronald Cotton as her rapist, leading to his wrongful incarceration for 11 years, before he was exonerated by DNA evidence. The story then went on to note that 75% of prisoners exonerated based upon DNA evidence were convicted in part based upon incorrect eyewitness testimony and pondered why that testimony was inaccurate.
Readers of this blog know the answer. As I noted in reviews of articles by Sandra Guerra Thompson and Robert P. Mosteller, there are problems when an eyewitness is shown every individual in a lineup or photo array at the same time rather than one at a time, there are problems when the eyewitness is not told that the suspect might be absent from the lineup or photo array, and there are problems when the person conducting the lineup or photo array knows the identity of the suspect. These and other problems have led the innocence movement to set forth six recommendations:
(1) only one suspect should be in each lineup or photo array; (2) the suspect should not “stand out”; (3) the witness should be cautioned that the perpetrator might not be in the the lineup or array; (4) those in the lineup or array should be displayed sequentially rather than simultaneously; (5) the person who administers the identification procedure should not know whether the suspect is in the lineup or array and certainly should be ignorant of the identity of the suspect (“double-blind testing”); and (6) a statement regarding the witness's confidence should be collected at the time any identification is made.
And as the 60 Minutes story last night noted, North Carolina, the state where Cotton was wrongfully convicted, was actually "the first in the country to mandate reforms by law, showing victims lineup photos one at a time and emphasizing that the right answer may be none of the above, having lineups conducted by a person who doesn't know who the suspect is, or not by a person at all."
Indeed, that law is North Carolina General Statutes Section 15A-284.52 (effective March 1, 2008), and it provides in relevant part:
(b) Eyewitness Identification Procedures. Lineups conducted by State, county, and other local law enforcement officers shall meet all of the following requirements:
(1) A lineup shall be conducted by an independent administrator or by an alternative method as provided by subsection (c) of this section.
(2) Individuals or photos shall be presented to witnesses sequentially, with each individual or photo presented to the witness separately, in a previously determined order, and removed after it is viewed before the next individual or photo is presented.
(3) Before a lineup, the eyewitness shall be instructed that:
a. The perpetrator might or might not be presented in the lineup,
b. The lineup administrator does not know the suspect's identity,
c. The eyewitness should not feel compelled to make an identification,
d. It is as important to exclude innocent persons as it is to identify the perpetrator, and
e. The investigation will continue whether or not an identification is made.
The eyewitness shall acknowledge the receipt of the instructions in writing. If the eyewitness refuses to sign, the lineup administrator shall note the refusal of the eyewitness to sign the acknowledgement and shall also sign the acknowledgement.
(4) In a photo lineup, the photograph of the suspect shall be contemporary and, to the extent practicable, shall resemble the suspect's appearance at the time of the offense.
(5) The lineup shall be composed so that the fillers generally resemble the eyewitness's description of the perpetrator, while ensuring that the suspect does not unduly stand out from the fillers. In addition:
a. All fillers selected shall resemble, as much as practicable, the eyewitness's description of the perpetrator in significant features, including any unique or unusual features.
b. At least five fillers shall be included in a photo lineup, in addition to the suspect.
c. At least five fillers shall be included in a live lineup, in addition to the suspect.
d. If the eyewitness has previously viewed a photo lineup or live lineup in connection with the identification of another person suspected of involvement in the offense, the fillers in the lineup in which the current suspect participates shall be different from the fillers used in any prior lineups.
(6) If there are multiple eyewitnesses, the suspect shall be placed in a different position in the lineup or photo array for each eyewitness.
(7) In a lineup, no writings or information concerning any previous arrest, indictment, or conviction of the suspect shall be visible or made known to the eyewitness.
(8) In a live lineup, any identifying actions, such as speech, gestures, or other movements, shall be performed by all lineup participants.
(9) In a live lineup, all lineup participants must be out of view of the eyewitness prior to the lineup.
(10) Only one suspect shall be included in a lineup.
(11) Nothing shall be said to the eyewitness regarding the suspect's position in the lineup or regarding anything that might influence the eyewitness's identification.
(12) The lineup administrator shall seek and document a clear statement from the eyewitness, at the time of the identification and in the eyewitness's own words, as to the eyewitness's confidence level that the person identified in a given lineup is the perpetrator. The lineup administrator shall separate all witnesses in order to discourage witnesses from conferring with one another before or during the procedure. Each witness shall be given instructions regarding the identification procedures without other witnesses present.
(13) If the eyewitness identifies a person as the perpetrator, the eyewitness shall not be provided any information concerning the person before the lineup administrator obtains the eyewitness's confidence statement about the selection. There shall not be anyone present during the live lineup or photographic identification procedures who knows the suspect's identity, except the eyewitness and counsel as required by law.
(14) Unless it is not practical, a video record of live identification procedures shall be made. If a video record is not practical, the reasons shall be documented, and an audio record shall be made. If neither a video nor audio record are practical, the reasons shall be documented, and the lineup administrator shall make a written record of the lineup.
(15) Whether video, audio, or in writing, the record shall include all of the following information:
a. All identification and nonidentification results obtained during the identification procedure, signed by the eyewitness, including the eyewitness's confidence statement. If the eyewitness refuses to sign, the lineup administrator shall note the refusal of the eyewitness to sign the results and shall also sign the notation.
b. The names of all persons present at the lineup.
c. The date, time, and location of the lineup.
d. The words used by the eyewitness in any identification, including words that describe the eyewitness's certainty of identification.
e. Whether it was a photo lineup or live lineup and how many photos or individuals were presented in the lineup.
f. The sources of all photographs or persons used.
g. In a photo lineup, the photographs themselves.
h. In a live lineup, a photo or other visual recording of the lineup that includes all persons who participated in the lineup.
(Surprisingly, however, the story last night failed to mention possibly the biggest reason why Thompson's identification of Cotton was likely wrong: the general inaccuracy of cross-racial identifications)