Eyewitness Identification

1. Eyewitness Identification \identification\photospread.wmv\identification\\witness and lineup.wmv\wrongful arrest, conviction\ronald cotton.wmv...\after innocence lkl.wmv...\ruben cantu, executed.wmv...\james giles.wmv...\diaz.wmv...\calvin johnson.wmv...\arvin mcgee.wmv...\doswell.wmv...\larry peterson.wmv...\Alito on wrongful execution.wmv...\Barry Scheck Colbert.wmv\Technology\video in court.wmv...\hollywood cameras.wmv\DNA\Timothy Ennis.wmv

2. Witness factors • Opportunity to view the suspect • Elapsed time during viewing and time passed since viewing • Physical proximity • Weather, obstructions to view, etc. • Physical and psychological factors • Drives, interests, emotions, prejudice • Past experiences and conditioning • Physical abilities/infirmities (vision, alertness, drug use, age, etc.) • Difficulty of cross-racial identification • Memory is not static -- it is cumulative, can change • Memory can be influenced by prior, concurrent and later events • Was a weapon displayed? (“Weapon Focus Effect”) • Did witnesses view photos? Participate in drawing a sketch? • Have others suggested who the perpetrator might be? • Stakes in the outcome -- relationships, ax to grind

3. Witness interviewing –techniques • Keep witnesses separate • Suggestibility • Peer pressures • Convey that suspect may not be present • Maintain absolute neutrality – avoid coercion or suggestions • Do not reinforce witness decisions (leads to overconfidence) • Do not allow witness to see the suspect’s photograph

4. Beware the “usualsuspects” trap! • Many people have criminal records • According to the FBI, in 2005police in the U.S. made 14,094,186 arrests for non-traffic violations • 603,503 were for violent crimes and 1,609,327 for property crimes • Having committed crimes in the past is a good predictor of committing more crime in the future, BUT only in a general statistical sense • Statistics CANNOT yield probabilities that someone will commit a certain act • Even for the same kind of offense, criminal record is NOT a reliable indicator that someone was involved in any specific event • Piling up indicators like criminal record, presence in an area, membership in a gang, etc. can lead to overconfidence in identifications and increase the risk of arresting and convicting innocent persons

5. Investigative ethics • Null hypothesis • Type I error - reject a null when it is true • Type II error - accept null when it is false • Duty to avoid mistaken arrest and wrongful conviction • NIMBY -- it IS everyone’s responsibility • Misplaced loyalties • Agency and public pressures • Desires to promote • Peer pressures • “Usual Suspects” trap

6. Field Identification – “Showup”

7. Field ID – “showup” • Suspect usually brought back to scenefor viewing soon after a crime • Must occur soon after an incident,usually within twenty or thirty minutes • Assumption that witness memories will be at their best • Issues • Nature of the event is inherently prejudicial • Problem of suggestibility, peer and police pressure • If there is no evidence beyond someone’s presence in an area there may be a large probability of error

8. Showups – NIJ recommended procedures 1. Determine and document, prior to the showup, a description of theperpetrator. 2. Consider transporting the witness to the location of the detained suspect to limit the legal impact of the suspect’s detention. 3. When multiple witnesses are involved: a. Separate witnesses and instruct them to avoid discussing details of the incident with other witnesses. b. If a positive identification is obtained from one witness, consider using other methods (e.g., lineup, photo array) for other witnesses 4. Caution the witness that the person he/she is looking at may or maynot be the perpetrator 5. Obtain and document a statement of certainty for both identifications and non-identifications.

9. Live and photographic lineups

10. Live and photographiclineups • “Suspect” – the person in the lineup whompolice believe committed the crime • “Filler” – others in the lineup • Characteristics of a good lineup • Random placement • Suspect should not stand out • Reasonable number of qualifying participants – those whose facial and other characteristics resemble the suspect. Six is a good minimum (suspect plus at least five non-suspect “fillers”) • Major problems in lineup identification • Bias – suspect photo differs considerably from the fillers • Picking out someone because they look most like the person observed. Can be partly avoided by showing photos one at a time (see later slide) • Picking out someone suggested by the officer, verbally or through body language. Can be avoided by “double-blind” procedure (officer doesn’t know who the suspect is – see later slide) • Choice is reinforced by an officer, leading to overconfidence later, when a witness is asked to identify the suspect in court.

11. Photographic lineups –NIJ recommended procedures (partial list) 1. Include only one suspect in each identification procedure. 2. Select fillers who generally fit the witness’ description of theperpetrator....fillers should resemble the suspect in significant features. 3. If multiple photos of the suspect are reasonably available to theinvestigator, select a photo that resembles the suspect descriptionor appearance at the time of the incident. 4. Include a minimum of five fillers (nonsuspects) per identificationprocedure. 5. Consider that complete uniformity of features is not required.Avoid using fillers who so closely resemble the suspect that a personfamiliar with the suspect might find it difficult to distinguish the suspectfrom the fillers. 6. Create a consistent appearance between the suspect and fillerswith respect to any unique or unusual feature (e.g., scars, tattoos)

12. Photographic lineups –Other recommended procedures • Suspect in lineup should be selected by police based on information tying him/her to the crime, not through the use of mug books, accidental “spotting” of look-alikes on the street, and similar procedures. This greatly reduces the possibility of error. • Officer displaying lineup must tell viewers that suspect may or may not be in lineup • “Please tell me if you recognize any of these persons. The suspect may or may not be one of them.” • “Thank you for your help. Good-bye!” • Officer must not tell viewers whether they successfully identified the known suspect • Interview and show lineups to witnesses one at a time, never when other witnesses may be nearby

13. Witness ID procedures -North Carolina State Law • Double-blind or automated equivalent • Sequential • Written pre-administration admonishment • At least five fillers resembling witness description of perpetrator • All eyewitnesses separated • Suspect to be placed in different position for each eyewitness • Signed witness statement denoting certainty of identification • Video or audio record of administration, or if cannot, a detailed written account by administrator

14. UTEP – testing lineupswith mock (make-believe) witnesses • A “mock witness” is someone who never actually observed a suspect but is trying to identify him/her based only on a physical description. • If a lineup is unbiased, mock witnesses should not pick any certain member of a lineup significantly more than another • Bias indicated when suspect is identified at a rate exceeding chance • In a 6-pack, mock witnesses should not ID the suspect at rates beyond 17% (1/6). If there are 24 mock witnesses, ID’s should distribute: • “Fillers” (members of a lineup other than the suspect) should be selected to fit the witnesses’ description, not because they “look” like the suspect

15. Sequential, double-blind lineup • According to the Innocence Project, of thefirst 130 DNA exonerations 111 (almost 80percent) were due to mistaken ID • Photospreads allow “comparison shopping” • Drawings may not reflect the real suspect • Sequential, double-blind process (NIJ Eyewitness Guide) • Show photos one at a time, in random order • Encourages witnesses to focus on individual photos • Detective doesn’t know which one is the “real” suspect • The more photos the better • As always... • Tell witness that criminal may or may not be in any of the photos • Do not reinforce a witness decision

16. Texas Injustice:The Prosecutor Didn’t Care In 1983 James Giles was arrested for the gangrape of a woman who lived 25 miles away.Police focused on him because of an anonymoustip and the fact that he was on probation forattempted murder. Giles did not come close to the suspect description.But after some difficulty the victim identified him. He was convicted on that alone. In prison, purely by chance, Giles met the man who called in the tip. The man realized this was the wrong “Giles.” The James Giles who actually raped the woman lived across the street from her. Police and prosecutors had learned of this years before but buried the report in their files. DNA finally proved that the imprisoned James Giles didn’t do it. The DNA belonged to a friend of the man who committed the rape. The victim’s ex-husband picked the friend from a lineup. The victim now admits she might have been mistaken Giles was paroled in 1993 after doing 10 years. The new Dallas County D.A. accused the old one of not caring who got convicted as long as his conviction rate held up. Giles, who helped three of his fellow prisoners win releases through DNA testing, was the 13th. prisoner from Dallas County to be exonerated through DNA.

17. Freed after twenty-six years On August 3, 2005, Luis Diaz walked out afree man after DNA conclusively proved thatsemen found in two of the seven victims of aserial rapist was not his. Between 1977 and 1979 seven womenmotorists were brutally raped by a man whopulled them over by flashing the lights of his car. Diaz was arrested when one of the victims, a gas station attendant, told police that one of the patrons looked like the rapist. Although several victims initially described their attacker as a large, Hispanic man, every one identified Diaz (a little guy) from a photo lineup, then in court. There were other inconsistencies as well. In 1993 two victims recanted their ID and those charges were dismissed. But Diaz remained in prison on the remaining counts. Prosecutors declined to say that Diaz was “innocent” of the assaults that had no DNA to compare but decided not to retry him.

18. Thomas Doswell On August 1, 2005, nearly 20 yearsafter being imprisoned for rape,Thomas Doswell was freed after beingexonerated by DNA. Doswell, whowas identified by the victim and awitness, claimed all along he wasinnocent, leading parole boards torepeatedly refuse to release him.Doswell was first ID’d from an8-picture photospread in which hisphoto was the only one prominently labeled with an “R”, signifying a prior arrest for rape (he had been acquitted of raping a girlfriend.) The victim also reported that her attacker had a beard, but Doswell only had a mustache. Pittsburgh Post-Gazette, 7/30/2005

19. Calvin Johnson, cleared by DNA of rape and burglary after serving 18 years “The Usual Suspect”: In 1983, two years after being convicted of burglary, Johnson was picked out of a photo spread by a rape victim who admittedly did not get a good look at her assailant. Eighteen years later a swab from the rape kit positively eliminated him as being the assailant. Interestingly, in 1984, while in prison, he was acquitted of a 1982 sexual assault (his name came up because of the arrest).

20. Security cameras

21. Security cameras • Ubiquitous • In many public and semi-publicareas • May be useful when there are noleads • Suspects can be developed by police and the public • Can track suspect movements • Limitations • Images may be grainy and indistinct • Viewing can contaminate witness memories and lead to overconfidence in the identification

22. Remember Efren Cruz? Here’s another security camera case: In November 2004 a Federal court jury convictedWilliam Cottrell, a Cal Tech doctoral student, of arson andconspiracy. Fifteen months earlier Cottrell and two associates,Tyler Johnson and Michie Oe, allegedly firebombed andvandalized vehicles at four L.A.-area auto dealerships, causing$5 million damage. They acted in the name of the “EarthLiberation Front” to protest environmental damage caused bySUV’s. At trial Cottrell admitted he was present but said he didnot personally set the fires. Cottrell’s claim was countered bystudents who said he bragged about the deed. Cottrell was tiedto a Cal Tech computer that was used to send e-mails to themedia claiming responsibility for the attacks. Soon after the attacks the FBI and West Covina police arrestedJoshua Connole, an anti-war protestor who lived in the area andsupposedly resembled a person depicted on the dealers’ security cameras. Within days an unknown person informed the L.A. Times that police had the wrong man and gave details that only those responsible could know. Connole was released but police kept insisting he was still a suspect until it became painfully obvious that he had nothing to do with the crime.

23. Composite images – “sketches”

24. Composite images –“sketches” • Especially useful when there are fewinvestigative leads • Can help suggest or narrow downthe range of possible suspects • Limited accuracy • Cannot be the sole basis of probable cause • Issues • Operator intervention in process • Limited flexibility • Witness endurance • Planting of false memories can affect future identification

25. Composite images –NIJ recommended procedures 1. Assess the ability of the witness to provide a description of theperpetrator. 2. Select the procedure to be used from those available (e.g.,identikit-type, artist, or computer-generated images). 3. Unless part of the procedure, avoid showing the witness anyphotos immediately prior to development of the composite. 4. Select an environment for conducting the procedure that minimizes distractions. 5. Conduct the procedure with each witness separately. 6. Determine with the witness whether the composite is areasonable representation of the perpetrator.

26. In July 1984 in Burlington, NC an assailant twice broke into apartments, severed phone wires and sexually assaulted two women. On August 1, 1984, Ronald Cotton was arrested forthese crimes. Evidence included a photo IDand lineup ID by the first victim, a flashlight foundin his home that resembled the one used bythe assailant, and rubber from Cotton's tennis shoethat was consistent with rubber found at one scene. In January 1985, Cotton was convicted by a jury of the second rape. On appeal, the conviction was overturned because the second victim had picked another man out of the lineup and the trial court did not allow this evidence to be heard. In November 1987 Cotton was retried, this time for both rapes because the second victim also decided that Cotton was her assailant. Cotton was convicted of both rapes and two counts of burglary and received life plus fifty-four years. Before the second trial, another prisoner convicted for similar crimes told another inmate that he was responsible for the crimes for which Cotton was convicted. A superior court judge refused to allow this information into evidence. (sources: Innocence Project and Truth in Justice.org)

27. Words of second victim, Jennifer Thompson: “In 1984 I was a 22-year-old college student with a grade point average of 4.0.... One night someone broke into my apartment, put a knife to my throat and raped me....I studied every single detail on the rapist's face. I looked at his hairline; I looked for scars, for tattoos, for anything that would help...identify him....I was going to make sure that he was put in prison and he was going to rot. I worked on a composite sketch to the very bestof my ability. I looked through hundreds of nosesand eyes and eyebrows and hairlines and nostrilsand lips. Several days later, looking at a series ofpolice photos, I identified my attacker. I knew thiswas the man. I was completely confident. I was sure. I picked the same man in a lineup. Again, I was sure. I knew it. I had picked the right guy, and he was going to go to jail. If there was the possibility of a death sentence, I wanted him to die. I wanted to flip the switch. When the case went to trial in 1986, I stood up on the stand, put my hand on the Bible and swore to tell the truth. Based on my testimony, Ronald Junior Cotton was sentenced to prison for life. It was the happiest day of my life because I could begin to put it all behind me.” (Source: Truth in Justice.org)

28. “In 1987, the case was retried because an appellate court had overturned Ronald Cotton's conviction....Another man had supposedly claimed to be my attacker and was bragging about it in the same prison wing where Ronald Cotton was being held. This man, Bobby Poole, was brought into court, and I was asked, "Ms. Thompson, have you ever seen this man?" I answered: "I have never seen him in my life. I have no idea who he is." Ronald Cotton was sentenced again to two life sentences. [Eight years later] I was standing in my kitchenwhen the detective and the district attorney visited.They told me: "Ronald Cotton didn't rape you. Itwas Bobby Poole." The man I was so sure I had never seen in my lifewas the man who was inches from my throat, who raped me, who hurt me, who took my spirit away, who robbed me of my soul. And the man I had identified so emphatically on so many occasions was absolutely innocent.” (Source: Truth in Justice.org) Ronald Cotton was released after serving 11 years. Bobby Poole pleaded guilty to both rapes and was imprisoned.

29. Jennifer ThompsonSpeaks Out AboutWitness ID Jennifer Thompson, the rapevictim whose misidentificationsent Cotton to prison for a crimehe did not commit, now talks about the problem of mistaken identification around the U.S. In the process, she and Cotton have become good friends. Ronald Cotton & Jennifer Thompson Pittsburgh Post Gazette, 5/8/05

30. More Problems With Composite Sketches... Gary Dotson spent nine years in prison for a rape he did not commit. He was identified after a woman tried to explain away her pregnancy by claiming she was raped. Based on her description, a police artist drew a sketch. The woman was then pressured to pick out a like person from a mug book. DNA finally cleared Dotson, and the woman admitted that she was impregnated by her boyfriend. Kirk Bloodworth spent ten years in prison for the rapeand murder of a nine-year old girl. He was identified byone of his neighbors who recognized him from a compositedrawing of the suspect that was circulated by police.Authorities were so certain they had the right man thatthey ignored the fact that a mentally ill person confessedto the crime to employees of a mental health clinic. DNAeventually proved that this person was the one responsible. Pittsburgh Post Gazette, 5/8/05

31. Mug books and photo collections

32. Mug books andphoto collections • Books and collections ofphotographs • Sorted by type of crime,gang, etc. • Can be useful when there are few leads • Issues • When there is no independent evidence pointing to a suspect there is a much greater probability of error • Picking out someone who “looks like” or “looks most like” the suspect • Can contaminate memories and lead to overconfidence in the identification

33. Sometimes there’s a happy ending...or is there? On December 11, 1980, a man held up the BurgerKing restaurant in Orange, California and shot andkilled the manager. Suspecting that gang memberswere involved, Orange police obtained numerousphotos from the LAPD. A Burger King employeeidentified a photo of Dwayne McKinney as the killer.Mc Kinney was considerably shorter than the original witness description and walked with a limp. Police arrested McKinney, who had a record for violence and armed robbery. Four witnesses identified him at the trial. Although the prosecutor asked for a death sentence, McKinney got life imprisonment. Nearly nineteen years later McKinney was freed when two inmates admitted they committed the robbery and identified another prisoner as the shooter. Two of the four witnesses who sent McKinney up the river looked at this man’s photograph and said that, indeed, he was the killer – not McKinney. McKinney sued the Orange police, claiming suggestive interviewing. The lawsuit was settled for $1.7 million. McKinney later became a successful entrepreneur in Hawaii. In 2007 he appealed for compensation from the State of California. He was opposed by the Calif. Attorney General, who said that the two inmates, who were already doing life terms, were lying to help McKinney.Los Angeles Times, 7/19/05, 1/31/07, 9/22/07

34. Delayed identifications

35. Federal Jury: L.A. County Sheriff to Pay $18 Million (L.A. Times, 2/16/06) In 2002 a 16-year old girl was kidnapped and driven away by a man who demanded sex. She was able to get away. Months later the girl and her mother spotted a car that resembled her attacker’s. Sheriff’s detectives arrested the driver, Raul Ramirez, a Compton middle-school teacher. Although Ramirez differed in key respects from the description initially provided by the girl, she identified him as the assailant and he was prosecuted. At trial the defense produced cell-phone and bank ATM records indicating that Ramirez was many miles away when the attack took place. Fortunately, jurors found Ramirez NOT guilty. Ramirez later sued the Sheriff’s Dept. for violating his Federal civil rights, claiming that the detective had known about these records all along but purposely held them back. Jurors agreed with him again. The Sheriff’s Dept. sharply contested the civil verdict. "This was a 16-year-old girl who said she was kidnapped and duct-taped by Mr. Ramirez," said Sheriff's Chief Bill McSweeney, who oversees litigation involving the department. "When two deputy [district attorneys] and a 16-year-old kidnapping victim believe in our case, so do we."

36. Federal Jury: Tulsa to Pay $14.5 Million (L.A. Times, 3/31/06) In 1989, after three trials, Arvin McGee wasconvicted of raping a woman two years earlier. The woman had failed to pick him out of a photo lineup, but picked him out of another lineup four months later. This identification, along with a serological report that “did not exclude” McGee as the sperm donor, were used to convict him. Thirteen years later, DNA testing positively excluded McGee’s sperm. A positive match was made for another prisoner, Edward Alberty. Alberty has been charged with rape and forcible sodomy. McGee sued police for violating his civil rights. He alleged improper investigative techniques, including a bad photo lineup and ignoring serious inconsistencies in the victim’s description. In March 2006 a Federal jury agreed and awarded McGee $1 million for each year he spent in prison.

37. Legal decisions

38. People v. Jerry Noble Kennedy(Calif. Sup. Ct., no. S037195, 7/25/05) You be the judge • A witness in a car parked at a rest stop hears a gunshot. The defendant exits a restroom and passed by within 5-10 feet. They lock eyes and the man leaves. The victim stumbles out of the restroom, mortally wounded. Police are called. • The witness describes the defendant as a curly-haired white adult male, about five feet eight or nine inches, 150 pounds, no facial hair. She later helps a police artist prepare a composite sketch but is unsatisfied with the results.

39. Arrest, identification and trial . . . • Based on other facts the defendant is arrested. He is 37, six feet tall, with a full mustache and goatee covering the lower half of his face. • Defendant's appearance does not resemble the composite sketch. • Police have a LOT of physical and other evidence that the defendant was the shooter. • Days later the witness later sees a photo of the defendant in a newspaper, notices the beard and fears it’s the wrong man. But when she views a videotape of the defendant's arrest and sees his eyes her opinion dramatically changes: “Oh, my God, that's him, and I don' t know how I missed that beard.“ • The witness positively identifies the defendant at a pretrial hearing and again at the trial, where she testifies: "I just kept saying, ' I don't believe I missed the beard, I don' t believe it,' "and "Oh, my God, that's the man."

40. Conviction and appeal . . . • The defendant is convicted and sentenced to death. Other than the identification, the evidence against him is overwhelming. There is really NO doubt he was the shooter. • In an automatic appeal, the defendant objects that the identification process was unduly suggestive. How did the court rule as to the identification? Why?

41. The Court’s decision . . . • Considering the totality of circumstances test of Neil v. Biggers and noting that the lapse between the crime and the identification was “only three weeks” the California Supreme Court concluded that the identification was sufficiently reliable to be admitted at the trial.

42. Neil v. Biggers(U.S. Sup. Ct., 409 U.S. 188, 1972) • Even if the police use a suggestive procedure, one must look to the “totality of the circumstances” to determine if a witness identification is sufficiently reliable to be admitted as evidence • Factors to consider include: • Opportunity of the witness to view the criminal at the time of the crime • Witness' degree of attention • Accuracy of the witness' prior description of the criminal • Level of certainty demonstrated by the witness at the confrontation (viewing) • Length of time between the crime and the confrontation

43. Twists and turns

44. Freed after 18 years, then busted again –the strange case of Leonard McSherry • In March 1988 Long Beach police arrested Leonard McSherry for kidnapping and raping a six-year-old girl. McSherry was identified by the victim and a neighbor from a photospread, in a line-up and in court. A detective testified that the victim identified McSherry’s car and his grandparent’s house. McSherry, a previously convicted sex offender, was convicted and got 48 years. • In 1992 McSherry appealed for a new trial because of DNA tests that supposedly cleared him. Prosecutors said the tests were inconclusive. Because of conflicting opinions between defense and prosecution experts the court denied the motion. • In 2001 DNA tests proved that George Valdespino, already in prison serving time on a 1997 kidnapping/molestation conviction, was the one responsible. McSherry, who had served 13 years, was declared factually innocent, released and given $481,000. • In 2005 McSherry was arrested for loitering around schoolyards and annoying children. He was convicted and got 25 years to life because of his prior convictions. • Meanwhile McSherry’s suit against Long Beach police drags on. The victim’s description of him and the place she was taken were inconsistent with McSherry and his grandparent’s house. But police included him in the photospread anyway. The victim testified that she was impatient during her interviews with police and just wanted to play. She said that she did not identify McSherry’s car or his grandparent’s home. • In September 2005 the 9th. Circuit Court of Appeals denied the LBPD detectives qualified immunity and ordered the lawsuit to proceed because there was "a disputed issue of fact” whether fabricated evidence was used to gain McSherry's conviction.

45. Freed after 18 years, then busted again –the strange case of Steven Avery • In 2003 Steven Avery, 43, wasfreed from a Wisconsin prisonafter new DNA tests proved hehad been wrongly convicted ofrape. Avery received $400,000compensation. His convictionwas based on eyewitness ID bya single person – the victim – andon inconclusive DNA evidence. • Avery’s freedom was due to theWisconsin Innocence Project ofthe University of Wisconsin LawSchool. Avery became a high-profile symbol of “flawed-justice”. • In November 2005 Avery was arrested when police found the burned remains of a 25-year old woman in his family’s salvage yard. DNA testing (oh, the irony...) revealed the presence of blood from Avery and the victim in her SUV. Avery’s DNA was also found on the vehicle’s ignition key, which had been hidden in Avery’s room. He was later convicted of the woman’s murder. In May 2007 he was sentenced to life without parole.

46. Sometimes a witness mayhave been right all along... • In 1985 a soldier, Timothy Hennis, wasarrested for brutally murdering a woman andher two children the evening after buyingtheir dog. The victim was also raped. Henniscould not account for his whereabouts.A passer-by helped police draw a sketch and later identified Ennis as being in the area that night. • Hennis was convicted and placed on death row. His conviction was later overturned because overly grisly crime scene photos were shown to the jury. There was too little DNA available for comparison. • Hennis was acquitted in a retrial. Elizabeth Loftus, a UCI professor and expert on mistaken identification challenged the witness ID. The defense also showed that a man who looked like Hennis regularly walked his dog in that neighborhood at night. • Twenty years later new DNA techniques allowed a comparison, and a positive match was made between semen from the woman victim and Hennis. Hennis could not be retried in civilian court. However, he had retired from the Army, so he was arrested by military authorities and is pending court-martial for murder.