Getting It Right: Eyewitness ID Interactive Guide from Innocence Project

Photo Line-Up Subject to Challenge

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The piece above ran on MSNBC this week on Rock Center. The program calls into serious question the reliability of the photo line-up, or "six-pack". The ten-minute segment focuses on Tim Cole, an African American Texas A & M student who was wrongfully convicted of aggravated rape in 1985. The only evidence against Mr. Cole was that he was chosen as a suspect in a photo line-up. He was placed in the photo line-up when a campus police officer decided that he resembled the composite drawing done by police. There was no other evidence against Mr. Cole yet he was convicted. Almost twenty years later, another man confessed to the rape which was confirmed by DNA but it was too late for Mr. Cole. He had passed away in prison as the result of a severe asthma attack after spending thirteen years of his twenty-five year sentence. He was posthumously exonerated by the State of Texas.

MSNBC has a photo montage test you can take on their website to get some idea of the reliability of a photo line up. Remember, however, that most people that are victims of crimes are undergoing an extremely stressful moment during the crimes which impacts the ability to recognize a person. Additionally, as noted in the MSNBC clip, the photo montage or any line up can be tainted by the police officers running the line up. If the officers have a certain "suspect" in mind, they may (accidentally or on purpose) project their preconceived notions on the victim. Eyewitness misidentification is the greatest cause of wrongful conviction and was at play in more than 75% of cases of individuals exonerated with DNA according to the Innocence Project. Both the MSNBC page and the Innocence Project have resources for challenging an eyewitness ID and suggestions on reform.

Options for investigating a case involving an eyewitness ID include getting an expert on reliability and memory including the reliability of the montage or creating your own montage. Additionally, it is important to get all discovery surrounding the montage including: why your person was selected to be placed in the montage to begin with, how the montage was created (software random selection or by officer selection), whether it was a "blind" montage meaning the officer conducting the show-up did not know anything about the "suspect" or the crime, and how many montages were shown to the suspect. Also if there is video or a recording of the victim selecting the suspect, that information is important. The circumstances of the line-up can be of critical importance including how long after the crime the line-up is happening, whether there has already been other "memory contamination", and whether there have been previous attempts of a line up before the "suspect" is picked.

In Mr. Cole's case, the victim tells MSNBC the horror she feels that she picked out the wrong person and she identifies the subtle police suggestion as a factor. The victim was highly motivated to pick out the correct suspect so that the horrible rape she experienced would not happen to someone else and her assailant would be punished. But it is exactly this pressure that can lead to a bad identification. Social scientists to study eyewitness identification issues note that there is tremendous pressure on the victim to pick the suspect and therefore they are extremely vulnerable to "clues" presented by law enforcement officers. Suggestions for reform include the "blind" test mentioned earlier and showing photos one at a time. Both of these methods have been shown to decrease the problems associated with eyewitness identification.

Barry Scheck Interview: Public Defenders, "Liberty's Last Champion"

Here is an interesting profile of Barry Scheck on New York 1 where he addresses Troy Davis's recent execution, DNA exoneration, the O.J Simpson case, his early career as a public defender in the Bronx and how it all led to the birth of the Innocence Project.

Changes Coming to Police Line-Up Procedures?

A new report released by the American Judicature Society has found that double-blind sequential lineups, which are lineups where the administrating officer does not know which person is the suspect and the witness only views one suspect at a time, produce fewer mistaken identifications that lineup procedures that present all of the suspect photographs at once or simultaneously. The report, “A Test of Simultaneous vs. Sequential Lineup Methods: An Initial Report of the AJS National Eyewitness Identification Field Studies,” has implications for reducing wrongful convictions in the United States criminal justice system. Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of the 273 convictions overturned through DNA testing. The report is released on the heels of a decision from the New Jersey Supreme Court cited this “troubling lack of reliability” in setting new rules for addressing those weaknesses in New Jersey courtrooms. The United States Supreme Court is scheduled to hear arguments, in November, in its first significant eyewitness identification case in 34 years. The case, Perry v. New Hampshire, is concerned with whether judges must take a hard look at all identifications arising from suggestive circumstances or only those involving official misconduct. Read more from New York Times or Innocence Project.

Texas Man Exonerated by DNA

A Texas man was freed Thursday after DNA exoneration in the latest Innocence Project victory and highlights the dangers of eyewitness misidentification. In 1984, two girls under the age of sixteen were on their way home from a store in their Dallas neighborhood when they were approached by a man wielding a gun. He took the girls to a nearby field and said he would shoot them if they did not comply and proceeded to tie them up and rape them. After the rape, the girls went to a nearby house where they called police. They were taken to the hospital and were later shown photo montages where they picked Johnny Pinchback out of the photos. Mr. Pinchback insisted he was innocent, however he was convicted in trial and was sentenced to 99 years imprisonment.

Mr. Pinchback never gave up and thanks to DNA evidence and the Innocence Project of Texas, he was determined to be innocent and will be released. Dallas County District Attorney had this to say:

"Thanks to the thorough investigation by our Conviction Integrity Unit and the continuous advances in DNA technology, Johnny Pinchback will regain his freedom as we have concluded that he did not commit this crime," Watkins says in a prepared statement. "As always, we seek justice on legitimate post-conviction claims of innocence to ensure we get to the truth, and when the truth reveals that an individual was wrongfully convicted, we take action to correct that injustice."

Pinchback, who is now 55, will become the 26th wrongfully imprisoned Dallas County man given his freedom in the past decade -- and the 22nd cleared by DNA evidence since 2001.

Full story here

Eyewitness Identification - Getting it Right

Root Causes of Wrongful Convictions: Interview with Peter Neufeld

On August 17, 2010, Peter Neufeld, co-founder of the Innocence Project along with Barry Scheck, was interviewed by Slate about the causes of wrongful convictions and where reform is needed. Here in an excerpt (full article here):

How do most wrongful convictions come about?

The primary cause is mistaken identification. Actually, I wouldn't call it mistaken identification; I'd call it misidentification, because you often find that there was some sort of misconduct by the police. In a lot of cases, the victim initially wasn't so sure. And then the police say, "Oh, no, you got the right guy. In fact, we think he's done two others that we just couldn't get him for." Or: "Yup, that's who we thought it was all along, great call."

It's disturbing that misidentifications still play such a large role in wrongful convictions, given that we've known about the fallibility of eyewitness testimony for over a century.

In terms of empirical studies, that's right. And 30 or 40 years ago, the Supreme Court acknowledged that eyewitness identification is problematic and can lead to wrongful convictions. The trouble is, it instructed lower courts to determine the validity of eyewitness testimony based on a lot of factors that are irrelevant, like the certainty of the witness. But the certainty you express [in court] a year and half later has nothing to do with how certain you felt two days after the event when you picked the photograph out of the array or picked the guy out of the lineup. You become more certain over time; that's just the way the mind works. With the passage of time, your story becomes your reality. You get wedded to your own version.

And the police participate in this. They show the victim the same picture again and again to prepare her for the trial. So at a certain point you're no longer remembering the event; you're just remembering this picture that you keep seeing.

Other than misidentifications, what other factors play a role in wrongful convictions?

The second most common cause is the misuse of forensic science other than DNA. In most of our cases, DNA [identification] didn't exist at the time of the conviction, so prosecutors relied on other types of forensic science. It could be serology, which was the old A/B/O blood typing. It could be bite marks. It could be fingerprints. It could be other forensic disciplines: tire marks, shoe print comparisons, fiber comparisons. None of these is bulletproof—some of them aren't even credible—so we see a lot of wrongful convictions stemming from those.

And there are several other very common causes as well. You have police and prosecutor misconduct. You have incompetent defense attorneys. You have jailhouse snitches, who as you can imagine are not the most reliable sources. And you have false confessions. Twenty-five percent of wrongful convictions involve false confessions. Most people can't imagine why anyone would ever confess to a crime they didn't commit, unless they were beaten into it. But these people weren't beaten. They wouldn't even meet the legal definition of coercion. It's just that the [interrogation] methods that are effective for getting confessions from guilty persons are so powerful that they net innocent people as well—particularly innocent people who are juveniles or have some kind of intellectual impairment or mental health problem.

I'm curious about police and prosecutor misconduct. I assume that most people in these jobs aren't actually trying to convict innocent people. So how does such misconduct come about?

I think what happens is that prosecutors and police think they've got the right guy, and consequently they think it's OK to cut corners or control the game a little bit to make sure he's convicted. The thinking goes, "God forbid a guilty guy go free because of smart lawyering by the defense" or what have you. They're so convinced that they are right that they feel exempt from behaving right. They don't realize that it's wrong to be unethical. And not just because it could convict an innocent person. It's simply wrong to be unethical.

A Celebration of Freedom & Justice -- May 18, 2010 -- The Exonerated

DNA Tests Vindicate Ohio Man Convicted of Rape

AP - An Ohio man who spent nearly 30 years in prison is being released after new DNA tests showed he didn't rape an 11-year-old girl.

Raymond Towler had been serving a life sentence for the rape of a girl in a Cleveland park in 1981. Cuyahoga (ky-uh-HOH'-guh) County Common Pleas Judge Eileen Gallagher choked back tears as she vacated the conviction on Wednesday and left the bench to shake Towler's hand at the defense table.

Prosecutors had asked the court to act immediately after receiving the test results Monday.

The Ohio Innocence Project, an organization that uses DNA evidence to clear people wrongfully convicted of crimes, says Towler has served the second-longest amount of time among prisoners in the U.S. who were eventually exonerated by DNA.

Eyewitness Misidentification

Misidentification is the number one cause of wrongful convictions. Whether by perjury or eyewitness/victim error, innocent people are spending time behind bars for crimes they did not commit. The criminal justice system puts a lot of faith in eyewitness testimony, but there is no way to guarantee their testimony is fact. Only after innocence is proven is it made evident that eyewitness testimony was erroneous. Due to this fact, it is not possible to know the number of wrongful convictions by mistaken identity, because many who are mistakenly identified will never have a chance to prove their innocence. Furthermore, the scope of the problem cannot be known because of instances where prosecutors drop the case or in cases where people are acquitted after reversals on appeal. While appellate decisions are published and readily available online, the problem with trial acquittals or dropped cases, is that they are not systematically catalogued and made public, so there is no way to be sure of the role of eyewitness testimony in those cases.

The Facts
In June of 2000, an analysis by the Center on Wrongful Convictions found that of 51 exonerations by DNA testing in the United States and Canada, 76.1% had been based in whole or in part on eyewitness identification testimony.
Another study of 86 exonerated capital cases by the Center on Wrongful Convictions found:

- Of the 86 cases, eyewitness testimony played a role in 46 (53.5%).
- In 33 cases (38.4%), eyewitness identification was the only evidence.
- Of the 46 cases that involved eyewitness testimony, 32 cases only had one eyewitness (69.6%), while the remaining 14 cases had multiple eyewitnesses (30.4%).
- In 19 cases (41.3%), the eyewitnesses were strangers, in 9 cases (19.6%), they were non-accomplice acquaintances.

Remedies
There are multiple remedies to minimize the number of wrongful convictions by mistaken identification. The most important remedy is to reform eyewitness identification procedures.


Methods of Reform
Sequential lineups is one technique that has been increasingly used in eyewitness identification procedures. In a sequential lineup, the witness is shown lineup members one at a time. The witness has to identify whether or not the person is the perpetrator before they can move on to the next person. This method differs from the traditional procedure of the witness viewing all members at once (simultaneous lineup). The sequential lineup procedure has proven to be more accurate because it forces witnesses to use an absolute judgment strategy rather than a relative judgment strategy (where they compare all the members and simply choose the best match from the group). After all, it is certainly possible that the perpetrator is not in the lineup at all.

Double-blind is another technique in lineup procedures. In double-blind procedures, neither the administrator nor the witness know who the suspect is. This prevents the administrator from influencing the witness by unintentional or intentional clues to the identity of the suspect.

Specific instruction to witnesses includes spoken instructions from the administrator to the eyewitness. These instructions are meant to deter the witness from feeling forced to make a selection from the lineup. Specific instructions also prevent the witness from looking at the administrator for feedback during the procedure; they are made aware that the administrator does not know who the suspect is and that he or she will not be able to assist the witness during the procedure. One recommended instruction is that the suspect may or may not be in the lineup.

Composing the lineup: Photographs of the suspect should be selected that do not bring unreasonable attention to him or her. In addition, it is vital that non-suspect photographs and lineup members are chosen by their resemblance to the description provided by the witness, not by their resemblance to the suspect. The suspect should also not really stand out from the other photographs or lineup members.

Confidence statements: Immediately following the lineup procedure, the witness should provide, in his or her own words, a statement regarding his or her confidence in making the right identification.

Recorded lineup procedure: Where possible, the lineup procedures should be video-recorded. Audio or written records should be made where this is not possible.

Courtesy of Innocence Project of Minnesota (©2007)

Innocence Project of Iowa

The Innocence Project of Iowa is a nonprofit organization that seeks to prevent and remedy wrongful convictions in the State of Iowa through education, advocacy, and litigation. The Project's volunteers provide representation to inmates with viable claims of actual innocence.

Their website provides information about the Innocence Project of Iowa, their work, and the national innocence movement. Learn about them, including their history, structure, and organization. Persons seeking assistance from the Project should follow the instructions in information for inmates. They encourage you to support them financially or to get involved as a volunteer. Check out the latest news and the many resources they have available. Finally, feel free to contact them if you have any questions.

Prosecutor Turns On Crusading Journalism School

From NPR:

Northwestern University professor David Protess has made life hard for Illinois prosecutors for decades, as he's routinely and often successfully challenged the evidence for their convictions of murder defendants.

Protess' Medill Innocence Project has been credited with helping to exonerate and free 11 men unjustly convicted of murder.

Now, the chief prosecutor for the Chicago region is turning the tables. She is demanding unusual evidence of her own from the professor and his students: their grades, e-mails, notes and course evaluations from a project in which they're championing the cause of yet another murder convict.

Cook County State's Attorney Anita Alvarez says her office has evidence his students' research is skewed. On Monday, a hearing is scheduled in which lawyers for Protess and Northwestern will submit arguments for why they shouldn't have to comply.

Protess' Take

"Legally, what I take from it is that the prosecutors are on a fishing expedition," Protess says while eating in one of his favorite restaurants in the Chicago suburb of Oak Park. "Practically, I think they have an interest in paying back for years of embarrassment — and paying forward to deter us."

Protess, now 63, got his start in the legendary world of Chicago journalism with undercover exposés of corruption. One of them was the legendary and controversial Mirage Bar story, in which he helped the Chicago Sun-Times buy and run a bar in North Chicago and recorded city building inspectors demanding bribes.

Since the early 1980s, however, Protess has also been training students at Northwestern's Medill School of Journalism by having them re-report murder convictions where claims of innocence seem plausible.

"They bring a fresh perspective to an old case — they bring an energy and zeal — and they're disarming interviewers," Protess says. "When they knock on someone's door — [people] don't see someone like me standing there, they see some young idealistic college kids who want to find the truth. And often, that's the first step toward getting it."

Freeing The Wrongly Convicted

Take the Ford Heights Four. Four black youths from the housing projects were arrested and convicted of abduction, rape and murder in the killing of a young white couple on Chicago's South Side in 1978.

Over several months in the mid-1990s, students turned up evidence that police had intimidated a key witness and prosecutors had buried another eyewitness account that implicated four other men.

A disclosure: one of those Northwestern students is now my colleague, NPR correspondent Laura Sullivan.

Protess' students even got a confession from one of the people involved in the killing. Among those freed was Kenneth Adams — who had served 18 years in prison. He shared in a $36 million settlement for wrongful imprisonment.

Adams now lives in an affluent development south of Chicago. Even now, 14 years later, Adams says he often gets up at night to stare at the stars or wander around to make sure he is not constrained by a prison cell the size of a small bathroom.

Five times Adams was offered the chance to walk free as long as he testified against his equally innocent co-defendants, and five times he refused. It is not an ordeal Adams enjoys reliving — but he does it, he says, in order to defend the professor.

"Without them stepping in and doing what they did, what chance would we have had?" Adams said as he sat in his spacious living room. His wife, Norma, stood nearby. "How much evidence would not have been uncovered? How many witnesses would not have been questioned and you get the truth about it?"

Protess' students' actions, Adams said, also put pressure on the state of Illinois to allow for DNA testing.

Full article here.