STREET CRIMES, STRESS, AND SUGGESTION: HELPING

THE JURY SEE WHAT THE WITNESS DID NOT

***** Jonathan Rapping

CEO / Founder

The Southern Public Defender Training Center

Estimator Variables(characteristics of witness, perpetrator or conditions of

crime independent of investigators)

• Cross-racial I.D.• Exposure Duration• Hairline• Weapon Focus• Stress• Time between crime and I.D. - Brian Cutler, Ph.D, UNC

Police Investigation

• 9-1-1 call

• Investigating the scene

• Obtaining information from the witness

Identification Procedures

• Pre-procedure interview

• Effective Use of Fillers

• Double Blind Administration

• Cautionary Instructions

• Sequential Presentation (relative judgment)

• Documentation

Types of ID cases: Degree of Familiarity

Familiarity Continuum:

“Complete Came into store Mom stranger” twice before

Theories Along the Continuum:

• Complete Stranger pure mis-ID

• Seen client/picture before unconscious transference

• Mistaken witness becomes exaggerating/lying witness forced choice

• W lying about what happened drug deal gone bad

• W lying about client’s presence entirely

Why We Need a Theory

* Just generating inconsistencies is not enough;

have to be fit into a theory/story

* Jurors' common sense can lead them to embrace misguided propositions such asMemory is like a tape recorderConfidence = accuracyStress increases attention, which increases accuracyThe more peripheral details, the more accurate

A Successful Defense Theory Must:

• Explain for the jury why the witness picked your client (rather than picking a filler)

– This requires more than just making a case for a weak memory (e.g., poor lighting, cross racial)

– Guessing and coincidence are weak theories

– Prior exposure and suggestive procedures are stronger theories

A Successful Defense Theory Must:

• Explain for the jury why the witness is apparently certain

– This requires explaining that certainty is a belief that can be based on things other than memory

A Successful Defense Theory Must:

–Not blame the witness (usually)

Themes

FORCED CHOICE → ambivalent witness forced to make inevitable choice (Need for closure, to feel safe, catch bad guy)

NO VILLAIN → inadvertent taint by the police (need careful investigation to determine what the police didn’t do as opposed to what they did do)

CONTAMINATION OF TRACE EVIDENCE → explain why witness persists with her choice and is confident in doing so; focus not just on what happened before ID, but after

MEMORY SOURCE ERROR → familiar face; prior exposure through media

Investigation and Case Theory

• Investigation crucial to developing or bolstering your theory and theme

• Many facts not immediately apparent • Police reports will not answer most of

your questions• Can’t rely heavily on client interviews

(incomplete, mistaken, or untrue) Communicate your possible themes

and theories to your investigator --- can only decide on themes, theories, and narratives after uncovering enough facts to make informed decisions.

Litigating Your Case

• First things first -- investigate and get discovery/Brady

• Educate yourself about the science -- otherwise you won’t know what facts to look for or what facts are important

Discovery

Brady/Discovery Letter, which includes:

• Eyewitness’ opportunity to view• Physical/mental condition• Post-Incident circumstances, including

passage of time, confidence levels, descriptions,

• Identification Procedures: get as many details as possible. Everything said, persons present, speed of ID, etc…

Figure Out Your Local Police Procedures

• FOIA

• Internet

• General Orders

• Other Litigation

Contrast with Best Practices

• Eyewitness Evidence:A Trainer's Manual forLaw Enforcement

• Eyewitness Evidence: A Guide for Law Enforcement

October 1999

Jurors care about deviations from standards set by authoritative sources. James M. Lampinen, et al., The Reaction of Mock Jurors to the Department of Justice Guidelines for the Collection and Preservation of Eyewitness Evidence, Basic & Applied Psychology 27(2) (2005)

Admission of DOJ guidelines• Bases of Admission as admissible hearsay or nonhearsay

– Through expert testimony– Under learned treatise exception, FRE 803(18) (authorizing cross-

examination of experts based on treatises, periodicals or pamphlets established as reliable authority)

– Admission of party opponent– Kyles v. Whitley (discussed later)

• Relevance: The admission of the DOJ guidelines – which establish certain best practices and thus impose obligations on the police to conduct id procedures in a certain manner – will support an argument pursuant to Greer v. United States, 697 A.2d 1207 (D.C. 1997), that the police should have gathered eyewitness identification evidence in a certain way, and provides grounds to oppose a request from the government under Brown v. United States, 881 A.2d 586, 593 (D.C. 2005), for a no-duty instruction.

Motion to SuppressMaking Manson v. Brathwaite, 432 U.S. 98 (1977), Work For You:

1. Unnecessarily Suggestive; AND

2. Unreliable– The opportunity of the witness to view the criminal at the

time of the crime; – The witness’s degree of attention; – The accuracy of the witness’s prior description of the

criminal;– The level of certainty demonstrated by the witness at the

confrontation; and – The length of time between the crime and the confrontation.

Note: Challenge on 403 grounds too!!! (ID or parts of testimony)

Other Creative Motions

• Motion to Suppress Confidence Statements– See Brodes v. State, 279 Ga. 436 (2005)

(reversible error to instruct jury that confidence is a factor to consider in assessing accuracy)

Develop a Narrative

Eyewitness stories / strategies

• Tell the forced choice story:– Police never said that suspect not in array– Witness never saw a yes/no choice; saw a

best guess/ “most like” choice– Witness’ ID was product of comparison, not

recognition– Can expect the same wrong guy will look

“most like” to multiple witnesses, especially where fillers were matched to the suspect.

Eyewitness stories / strategy

• Tell the “trace evidence story”– Witnesses memories are subject to

contamination– Perception and Storing of Memory wasn’t

good to begin with.– Gaps got filled in; other details altered to fit– Confidence has changed– Police procedures are the “black box”

Tools for Telling the Story

• Expert

• Jury Instructions

• Cross Examination

EXPERT WITNESS

• State v. Clopten, 223 P.3d 1103 (Utah Sup. Ct. 2009)– When eyewitness identifies a stranger and

one or more factors affecting accuracy are present an expert should be admitted

– Jury instructions are not enough– But see Louisiana v. Young (La Sup. Ct., April

2010) (reversing trial court’s admission of expert testimony favoring jury instructions and cross examination)

JURY INSTRUCTIONS• Instruction regarding police failure to use

procedures that have been proven to decrease the risk of error. Kyles v. Whitley, 514 U.S. 419, 446 & n. 15 (1995) (approving of tactic of discrediting sloppy police methods and noting “When . . . probative force of evidence depends on circumstances in which it was obtained . . . indications of conscientious police work will enhance probative force and slovenly work will diminish it.”)

Other Potential Jury Instructions

• Cautionary instruction about the failure to provide proper directions to witness before an ID procedure (culprit may or may not be in the lineup, etc.) State v. Ledbetter, 881 A.2d 290 (Conn. 2005);

• Cautionary instruction about the police failure to contemporaneously document identification procedure in writing. State v. Delgado, 902 A.2d 888 (N.J. 2006).

More Potential Jury Instructions

• Removing the confidence factor from any instruction: Brodes v. State, 614 S.E.2d 766 (Ga. 2005); Commonwealth v. Santoli, 680 N.E.2d 1116, 1121 (Mass. 1997);

• Instruction about empirical research showing difficulties of cross-racial identifications. State v. Cromedy, 727 A.2d 457 (N.J. 1999).

JURY INSTRUCTIONS

• Research Has Found Cautionary Instructions Ineffective – Buried in overall charge– Too late to alter opinions already formed– Instructions tend to reveal factors that

influence perception and memory but do not explain how or to what extent

JURY INSTRUCTIONS

• Argue in opening and closing

• Ask judge to instruct during testimony

• Move to preclude prosecutor from arguing the alternative

CROSS-EXAMINATION

The Two Cross Examinations

• The clinical cross of the sloppy/sleepy/misguided police officer

• The gentle cross of the mistaken eyewitness

INTEGRITY OF INVESTIGATION

• Ask about

– Estimator variables

– Investigation

– Procedures

• Risk to procedure

• You use line-ups because it is one way to help ensure that you have the right person

• But you also understand that mistakes can be made

• There is always the risk that a witness will choose an innocent person

• That could potentially lead to a great injustice

• An innocent member of our community convicted of a crime he did not commit

• You have to do what you can to minimize that risk

• As a matter of fact, you don’t have every witness look at a line up

• If you conclude that a witness will not be able to make an identification you would not have that witness view a line up

• Because if they felt compelled to choose someone the risk is too great that that choice would not be reliable

• So it’s important that you first thoroughly investigate to determine whether you think having the witness view the line-up will be helpful in the case

• To do that you need to be familiar with the factors that cast doubt on a witnesses ability to make an accurate identification

• [go into estimator variables]• [go into failures to investigate]• [or, with a modified cross, go into failures to use

best practices in setting up procedure]

Crossing a mistaken witness

• Play it safe: It’s safe if – the question seems meaningless– You have a prior statement– The bad answer offends commonsense

• Don’t attack/invite rejection of defense theory

• Build your own commonsense

• So instead of asking: “you were looking at the gun not the face, weren’t you?” Ask

• You saw the gun?• A dark gun?• A revolver?• So, you could see the cylinder• the openings for bullets• the fact that man had a gun understandably made

you nervous• And the man seemed out of control• So you kept you eye on what he was doing with

that gun

Crossing the mistaken witness

• Instead of asking -- “you just chose the person who looks most like the robber, right?” – use the prosecution’s facts to build your story:

“Their” Facts, Your Story

• You got a call?

• From Det. Smith?

• Who had been at the scene?

• And interviewed you there?

• And showed some empathy for what you were going through?

• And tried to help?

• He wanted you to come to the station?• He picked you up?• And he drove you down?• And he sat you down at a desk?• And he had you look at some pictures?• He was polite?• He was concerned?

• He asked how you were?• He knew this was hard for you?• You didn’t think he brought you there to waste

your time?• You figured he had a reason?• You figured he had a suspect?• And you figured the suspect was probably in

these pictures?

• You knew this procedure was serious?

• You wanted to get the guy?

• Before he robbed again?

• So you were careful?

• And you took your time?

• And you studied all six pictures?

• No one ever pointed out my client to you?• No one ever said “The robber may not be here.”• No one ever said “We do this to clear the

innocent as well catch the guilty.”• No one showed you his picture alone?• Or showed you anyone’s picture alone?• You always saw them in a group?• You always had someone to compare with?

• Never saw the man wearing number 5 alone• And answered “Yes/No”?• Or saw the man wearing number 2 alone• And answered “Yes/No”?• You know now that my client was wearing

number 3?• Never saw his picture alone to answer

“Yes/No”?

• You carefully compared the pictures?• After you compared you made a choice?• Didn’t tell you to try again?• Didn’t tell you you made a mistake?• Two weeks later Det. Smith brought you in again

to compare another group?• Brought you to live line-up?• With another subpoena?• Same name on this subpoena?• Made you feel more confident?

• Det. Smith brought you here today?

• You’ve know him for a year?

• And met him many times?

• He knows you are nervous?

• That this is hard for you?

• Would he bring you here to make a fool of yourself?

Closing argument

• Show the jurors their advantages over the eyewitness

• Use the instructions

• Remind the jury of its role

• Commend the witness for trying

What’s At Stake

• “The vagaries of eyewitness identification are well-known: the annals of criminal law are rife with instances of mistaken identification . . . . The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of English and American trials.” United States v. Wade, 388 U.S. 218, 228 (1967).

• “Eyewitness misidentification is now the single greatest source of wrongful convictions in the United States, responsible for more wrongful convictions than all other causes combined.” State v. Dubose, 699 N.W.2d 582, 592 (Wisc. 2005).

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