Transcript Identification Procedures

Identification
Where legal assumptions conflict
with empirical evidence
Another Delicate Balance
• Eye-witnesses are essential to obtain
convictions in many high profile cases
• Goal – prevent inaccurate eye-witness
testimony in “stranger cases”
• SCOTUS tries to provide protection to
innocent suspects from faulty eye-witness
testimony without unduly interfering with the
jury’s fact-finding role
Current Standard
• Over the course of many years and decisions
the SCOTUS has ruled that identification
evidence gets in unless there is a “very
substantial likelihood of irreparable
misidentification”
• Lots of confidence in the ability of juries to
figure things out.
Out of court Identifications
• Before witnesses id defendants in court, they
do so during the investigation
• There are two types of pretrial identification
procedures:
1) Lineups – picking the suspect out of a
group (live lineup) or a number of photos (a
photo array)
2) Show-ups – witnesses pick out suspect
standing alone, live or through photos
The SCOTUS weighs in
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For a long time the SCOTUS kept silent
Wade-Gilbert-Stovall (1967) changed this
Wade - no line-up without attorney present
Gilbert – line-up ids w/out attorney present
can’t get in evidence
• Stovall – due process applies to pretrial showups before trial
A difficult burden
• To exclude an identification the suspect must
establish:
1) that the procedure was unnecessarily
suggestive, and
2) the procedure also created a very
substantial possibility of misidentification
• both need be proven by the preponderance
of the evidence
With a burden like that ….
• The whole admissibility question turns on –
reliability – was the wrong person fingered?
• In practice, courts rarely exclude eye witness
identifications
• Juries are free to weigh the identification as
they see fit
The Five Factors
In assessing the witnesses’s id’s reliability, 5
factors are considered:
1) chances to view defendant during crime,
2) witnesses’ degree of attention
3) witnesses’ accuracy of description
4) witnesses’ certainty during procedure, and
5) length of time between id and crime
Manson v Brathwaite
• Undercover cop buys heroin from an
unidentified “colored man”
• Two days later he identifies Brathwaite after
being furnished one photo
• No line-up, of any type
• On appeal, state concedes that this scenario
was both suggestive and unnecessary
• Defense argued such ids be always excluded
Manson cont.
• SCOTUS rules that a per se rule is
inappropriate
• Instead the totality of the circumstances
should be assessed
• Rules that the per se rule wrongly keeps
relevant evidence from the jury without
exception
• Dissent – procedure was both suggestive and
unreliable
“Accidental Show-ups”
• What happens when witnesses make ids outside
formal line-ups or show-ups?
• If law enforcement didn’t have anything to do
with the id, then due process doesn’t apply – no
state action.
• However, in some cases the id takes place
inadvertently, but while the suspect is under the
control of police, such as when the witness sees
the suspect in custody at the station or crthse.
Court’s forgiving view
• Even though law enforcement is in control of
the situation, and could limit such “accidents”,
courts are very reluctant to throw them out.
• Perry (2012) – witness sees someone break
into a car, later she points him out, standing
next to an investigating officer
• A month later, she can’t id him in photo line-up
• SCOTUS ruled jury can figure it all out since
they were given a special instruction – let it in
Startling Empirical Evidence
• Psychologists have explored the strengths and
weaknesses of human perception & memory
• Much, maybe all, of what we might assume
about our memory in general and ability to
reliably identify people in the course of crimes
is wrong
• People who witness the same event recall it
differently, no one sees it all, and many,
despite great confidence in their id, are wrong
Bottom line?
• Many eye witnesses make big mistakes
recalling the events and iding who was there
• Even in ideal settings mistakes are made
• In-station line-ups and show-ups aren’t ideal
settings so reliability is questionable
• Mistaken ids of strangers “is the single
greatest cause of the conviction of the
innocent” – 75% of DNA exonerations!
Why so inaccurate?
• Memory involves three phases:
1) acquisition – the initial perception of the
event as it is encoded by the brain
2) retention – the process of storing
information before recall
3) retrieval – pulling out the memory when
needed
• Things can go wrong in any of the three
Acquisition
• We don’t remember things like a photo or
movie records info
• Our memories are shaped by our expectations
and unique cognitive processes
• Also, we can’t attend to everything during an
event, what we attend to shapes our memory
Eyewitness accuracy depends on:
1) how long the witness observes the stranger
– but most crimes take only seconds, and
witnesses mistake even basic items
2) the presence or absence of distractions –
things like weapons cause witnesses to make
crucial errors
3) witnesses’ focus – bad lighting makes ids
very difficult
More acquisition hazards
4) amount of stress on witness during event –
stress greatly impairs accuracy even in cases of
rape and robbery with good chances to observe
5) race of witness and stranger – attempts to id
strangers of another race are especially sketchy
and lots of familiarity with the other race
doesn’t help
Retention concerns
• Memories fade rapidly but the rate of decay
slows as time goes on
• Strangely, as the memory fades, our
confidence in the memory increases
• Worse yet, juries and judges are very
impressed by this specious confidence
• New items can be added to the memory – it
can change as well as decay
Retrieval
• Every time we recall a memory, it can change
based upon what’s happened since retention
• Eyewitness recognition – witnesses asked if
shown people were involved in crime
• Errors can occur through either:
a) errors of omission – failure to recall vital
details or recognize the perpetrator, or
b) errors of commission – falsely iding an
innocent person
The Power of Suggestion
• Besides the previous memory problems, we
are also quite vulnerable to suggestion
• Especially troublesome during both retention
and retrieval
• How third parties describe what happened
influences how we remember, adding things
Defense attempts to combat faulty ids
• Defense futilely contest ids on several grounds:
1) show-ups instead of line-ups
2) suspect too distinctive in line-up
3) witness not told perp might not be in line-up
4) witness primed by being shown photo of
suspect before line-up
5) uncertain witness told they picked “right guy”
6) two lineups w/ only suspect in both
It doesn’t matter
• The Courts use the reliability test of
eyewitness evidence from Manson for ids
• This despite the fact that research shows that
the underlying reliability is often not so good
• And the 75% figure for the exonerated, is just
the tip of the iceberg
• If there’s no DNA to test the id, it ill go
unchallenged
30 years of research reveals …
• Big problems with eyewitness testimony
• J Marshall had predicted this in Manson
• Experiments provide control – the ability to
monitor the setting to eliminate other factors
• Experiments are criticized because the witness
doesn’t experience similar stress, but that
makes the experiment more impressive
Psychologists diss Self-Reports
• Eyewitness retrospective self-reports are
viewed with much skepticism by the
psychologists who study memory
• Memories can “change” due to
1) the desire to look good – social desirability
2) the need to appear consistent, and
3) reinterpreting the past due to new events
Specifics
• Empirical research provides valuable insights as to
the reliability of various id techniques
• Reliability suffers due to:
1) line-up composition
a) only one suspect in each
b) “fillers” shouldn’t vary widely from description,
should be of same race, skin color, age, height
c) juries can’t look past bad ids
More problems
• Pre-lineup instructions
a) witnesses feel pressure to id the perp, to pick
someone
b) witnesses don’t consider that the perp might
not be there
c) very vulnerable to suggestion
d) need might-or-might-not-be-present
instruction – ok to say you don’t see the perp
Administrator’s behavior
• Cues from the line-ups administrator can exert
heavy influence on witness
a) if witness picks a filler, admin says, “make
sure you look at all the suspects”
b) admin approves pick of suspect
c) filler picked and admin shakes head, frowns
d) suspect picked, admin smiles and nods
• No intention to mislead, unconscious actions
Problems with Show-ups
• By their very nature, show-ups are less reliable
since they only involve one person
• But ruled admissible, especially when:
1) view suspect accidentally in courthouse
2) had to bring witness to hospital (emergency)
3) view suspects in course of pursuit or arrest
Looking at the Manson factors
• Lots of work re three
• Witness’s opportunity to view suspect
1) distance is key – too far away and we can’t
make out faces
2) length of time isn’t as crucial as stress on
witness and whether view was obstructed
3) if admin approves id, witnesses exaggerate
the quality of their view
Another Manson factor - Confidence
• Very important – charges won’t likely be
brought if the witness is not confident of id
• Can be heavily influenced by suggestion
• If witness receives approval, they are more
confident, even if wrong
• Certainty can grow over time
• Increase in confidence can effect testimony in
many ways
How do we fix this?
• Both psychologists and defense attorneys
have tired to get id procedures changed.
• Recommendations include:
1) excluding all suggestive procedures
2) allowing expert testimony re the
limitations of eye witness testimony
3) requiring corroboration – especially for
cross-racial ids
As for legislation …
• Legislatures and law enforcement agencies
have made changes
1) more appropriate fillers
2) use a double blind – admin doesn’t know
who the suspect is
3) use might-or-might-not- be instruction
4) present suspect and fillers sequentially
5) test confidence immediately., and
6) avoid multiple views of suspect
State Court measures
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Some court systems have taken action
Utah has recognized the problem
Uses a cautionary instruction to explain
Requires expert witnesses to explain the limits
of human perception and memory and how
that influences eyewitness testimony
Forensic Science and IDs
• Forensics deal with the use of scientific
methods and techniques to investigate
criminal activity
• While forensics are used to understand
anything from handwriting samples to
computers, we’ll look at DNA and when
forensics are misused.
DNA as identification
• Do convicted criminals have a constitutional
right to review DNA evidence?
• Could well decide between guilt and
innocence.
• What could be wrong with releasing the
innocent from prison?
• Is it a due process right?
Osborne (2009)
• SCOTUS says no (5-4) to a constitutional due
process right to forensic evidence.
• Majority – it’s up to the legislature to figure out
how to balance certainty in convictions v the
need to protect the innocent from wrongful
convictions.
• Since the defendant has been convicted, the
presumption of innocence no longer attaches,
nor does the “proof beyond a reasonable doubt”
Osborne cont.
• Also, defendant must first fully pursue any
remedies allowed under state law.
• No “freestanding” right to DNA testing.
• And, in this case, the defendant declined the
chance to check DNA evidence at trial.
• Dissent – since the test can conclusively
establish guilt or innocence, why not use it?
When forensics fail.
• Forensics can go wrong either by accident, or
through fraud. But how?
• 1) Exclusivity – only one lab tests, so whatever
it says, even if based on sloppy work, goes.
• 2) Bias – most labs are set up and funded by
law enforcement, can’t bite the hand that …
• 3) Info sharing – examiners are often privy to
info that can increase their bias.
Forensic flaws explained
• 4) uneven playing field – state has access to all
sorts of forensic experts to perform and
interpret data, defense has little, if any.
• 5) good enough for government work –
government employees are not motivated
enough to work against the interests of those
that pay them.
• 60% of bad verdicts rested on flawed forensics.
Are forensic reports hearsay?
• In many cases, forensic evidence gets in
without any testimony – ipse dixit – through a
certificate.
• Establishes both chain of command and the
underlying ‘conclusion” pointing to
defendant’s guilt.
• Do defendant’s get the right to cross examine
these findings?
Melendez-Diaz (2009)
• Defendant arrested for dealing cocaine
• At trial the state puts seized powder into
evidence based upon a certificate
• Defendant demanded the right to cross
examine the analyst who made the certificate
• Denied at trial, conviction followed.
• Holding – certificates are testimonial
statements and thus subject to cross re
confrontation clause of 6th Amendment.