Download - Eye Witness Identification
Eye Witness Identification
Policy and Guidelines
Chief James McLaughlin, Jr. (Ret)Texas Police Chiefs Association
Phillip Lyons, Jr., J.D., Ph.D.Sam Houston State University
June 5,2012
The Innocence Project reports out of 254 DNA exonerations 75% were misidentified by eye witness.
Innocent by Trial (jury-error) Actual Innocence
There have been over 2000
studies of eye witness procedures and results in the last 30 years. Many of these are “laboratory” but a significant number were conducted in the field.
Studies have shown misidentification rates to be between 35-50% at times.
“Memory does not function like a video tape but rather is a constructed, dynamic and selective process that can be distorted, contaminated, and even falsely imagined”.
Mason v BrathwaiteU. S. Supreme Court 1977
Opportunity to view the criminalWitness’s degree of attentionThe accuracy of witness’s
description of criminalLevel of certaintyThe time between the crime and
confrontation
Tillman v. StateTexas Court of Criminal Appeals 2011
Home invasionMurderSeveral eyewitnesses“Suggestive” photo line upsExpert witness
Legislative History
81st. Session (2009)– SB 117 & HB 3583– TCLEOSE
– HB 498– Timothy Cole Advisory Committee on
Wrongful Convictions
Texas Court of Criminal Appeals Criminal Justice Integrity Unit
House Bill 21582nd. Texas Legislature
Amends Chap. 33 of the Code of Criminal Procedure by adding Art. 38.20
Photograph and Live Lineup Procedures—each LE agency shall adopt and implement and as necessary amend a detailed written policy regarding the administration of photograph and live lineup procedures
LE agencies may adopt the model policy developed by the Law Enforcement Management Institute of Texas (LEMIT) or
create their own as long as they properly address the following issues:
LE Agency policy must address
Selection of photographs
Instructions given to witness before conducting lineup
Documentation and preservation of the results of lineup, including witness statements
Procedures for administering the lineup to the illiterate and persons with limited English
In a live lineup, if practical, assign an administrator who is unaware of who the suspect is
For photo lineups, have procedures for assigning an administrator who is capable of administering a photo lineup in a blind manner, or
In a manner consistent with other proven or supported best practices, designed to prevent influencing the witness
LEMIT
In consultation with large, medium, and small LE agencies and LE associations, and with scientific experts in eyewitness memory research shall develop, adopt, and disseminate to all LE agencies a model policy and training materials.
LEMIT shall review the model policy and modify as necessary every two years
LEMIT must complete development of model policy by December 31, 2011
Each agency must adopt appropriate policy by September 1, 2012
Perry v. New Hampshire
Decided January 11 2012 Suspect committing BMVs Officer asked eyewitness to describe
suspect She pointed out her kitchen window
to a man in the parking lot Perry said court should do a judicial
review of reliability of eyewitness identification
Supreme Court held “no need for judicial inquiry into reliability of eyewitness ID if not procured under unnecessary suggestive circumstances arranged by law enforcement.”
“Due process concerns arise only when law enforcement use identification procedure that is both suggestive and unnecessary.”
Only when such conduct creates a substantial likelihood of misidentification is suppression of evidence required.
“Defendant must establish improper police conduct. “
POLICIESLEMIT
Texas Police Chiefs AssociationTexas Police Chiefs Association
Foundation “Best Practices”
HoustonDallas
Advice is like castor oil - easy enough to give but dreadfully uneasy to take
Josh Billings
Estimator variables:
Variables affecting eyewitness reliability that are beyond the control of the justice system.
Estimator VariablesEye witness stress levelWeapon focus effectCross-racial identificationDuration of the witnessed eventDistance and lightingMemory decay
System variables:
Variables that affect eye witness identification accuracy over which the justice system has control such as line-up procedures.
System variables
Line up administration Instructions to witnessConstruction of line-up arrayMultiple identification proceduresShow up proceduresFeedback to witnessPre identification stage setting
Accuracy
Yes No
Yes TruePositive
FalseNegative
No FalsePositive
TrueNegative
Predicted
Actual
Sensitivity (low false negative) vs. specificity (low false positive)
Improve the specificity of our techniques over existing ones to lower the rate of false positives, without unduly sacrificing sensitivity, that is, while maintaining our true positives.
Goal
Focus group at Sam Houston State University on 9-23-11– Advocacy, Attorneys, Law Enforcement
Public Comment Public Hearings in Austin on 12-1-11
Policy Development
Definitions
Blind Administration Blinded Administration Double Blind Administration Witness/victim
Simultaneous vs. Sequential (decreases false positives by 33% with little, if any, sacrifice to true positives)
Blind vs. Blinded vs. Standard Selection/placement of fillers and
blanks
Policy
Instruct witness:–Suspect may or may not be
present–Administrator does not know the
identity of the suspect Multiple Identification Procedures Post identification feedback Procedures for Persons with LEP
Policy
LEMIT is delivering four training of trainers sessions, two of which have been completed already
Texas Police Chiefs Association is delivering seven trainings.
Judge Barbara Hervey of the Texas Court of Criminal Appeals provided financial assistance in the form of a grant to facilitate LEMIT’s implementation of this unfunded mandate.
Policy Dissemination
And maybe answers.
Questions