When believing isn't seeing
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Chicago Tribune
Editorial
September 30, 2002
Our minds don't work like video recorders, and yet the moment we put an
eyewitness to a crime on the stand suddenly we treat his memory like
truth from the mountaintop.
Thanks to a generation's worth of research, we know an awful lot about
the fickleness of memory. We know eyewitness accounts of crimes are
fragmented and suggestible. We know they're apt to go from shaky to
confident between the time a cop confirms a witness' lineup choice ("You
picked the right guy") and the start of trial.
The live lineup is a staple of modern-day police work in many station
houses, Chicago in particular. Anyone who has watched police dramas on
film or television knows how it works. And yet erroneous eyewitness
testimony is the single greatest contributor to wrongful convictions in the
United States.
Since the U.S. Supreme Court restored capital punishment, 86 Death Row
inmates across the nation have been exonerated based on claims of innocence.
The convictions in more than half of those cases depended at least in
part on eyewitnesses, according to a 2001 study by the Center on Wrongful
Convictions at Northwestern University School of Law. In 33 of the cases,
eyewitness testimony was the only evidence used against the accused.
Take the experience of Chicagoan James Newsome. His was not a capital case,
but the lessons apply to all felony prosecutions. Newsome was driving
with a friend on Halloween in 1979 when police stopped them, guns drawn,
as possible suspects in the robbery of a prostitute.
One of the officers thought Newsome resembled a composite sketch of a
suspect in a murder that occurred a day earlier. Next thing he knew,
Newsome was being marched into a live lineup at the police station, where
three eyewitnesses fingered him as the man who gunned down South Side
convenience store owner Mickey Cohen.
Newsome, who had never before been arrested, spent 15 years in a
rat-infested prison serving a life sentence. That's how long it took for
fingerprint technology to develop that would prove the prints left at the
scene by the killer weren't Newsome's. For five years police
knew, but didn't divulge, that the prints belonged to Dennis
Emerson, a career criminal.
Newsome and Emerson didn't even look alike.
Newsome was nearly three inches taller.
Newsome had a mole on his nose. Emerson didn't.
Newsome had short-cropped hair. Emerson had more of an Afro.
Decide for yourself from the photos included in this editorial.
James Newsome | Dennis Emerson
Last year, a federal jury awarded Newsome $15 million for being framed
by Chicago police for the murder.
False identifications don't simply represent the failure of a single
witness. It's not uncommon for multiple witnesses to make the same bad ID.
In Newsome's case, at least one of the witnesses was shown a photograph of
Newsome before he viewed the live lineup, and one was instructed by police
to "take another look at No. 3" when he twice picked someone else in the
lineup.
In Newsome's case, at least one of the witnesses was shown a photograph
of Newsome before he viewed the live lineup, and one was instructed by
police to "take another look at No. 3" when he twice picked someone else
in the lineup.
Of course, most police departments don't follow such egregiously bad
practices. But there are myriad ways officers conducting photo spreads or
live lineups can send subtle clues to steer eyewitnesses to identify the
person who police believe is the real suspect.
Gary Wells, a professor of psychology at Iowa State University, has
spent more than 20 years studying police "sixpack" lineups and photo
spreads, as well as the memory of eyewitnesses to a crime. Through repeated
experiments with staged crimes in front of college students, he has found
that the practice of lining a bunch of suspects up at once has a higher
error rate than if suspects are shown to witnesses individually, in
sequence. The same is true with photo spreads.
Why? Because when all suspects are viewed at once, the eyewitness is
tempted to make a relative judgment (Who most resembles the suspect among
those present?) rather than an absolute one (Is this the person who
committed the crime?).
When the real perpetrator is not in the sequential lineup, witnesses tend
not to pick anyone. In group lineups, witnesses are more likely to pick
somebody in the interest of being helpful.
"I would see the need for expert testimony [on problems with eyewitness
identification] declining if everybody accepted sequential lineups," Wells
said. "So it might turn out to be a net money-saving thing."
To make these techniques work, however, sequential lineups have to be
conducted by an individual who has no idea who the actual suspect is. This
precaution ensures that officers don't give even inadvertent signals--through
eye contact, lifted eyebrows or any other kind of unintentional body
language--that would steer an eyewitness.
Years of research shows that even the most well-intentioned, conscientious individuals who conduct lineups can still send unintentional body cues to eyewitnesses when the administrator knows the identity of the actual suspect.
Sequential lineups are now urged by the U.S. Department of Justice in its
Eyewitness Evidence Guidelines. Still, the practice draws plenty of
resistance from police and prosecutors who worry that suburban or rural
police departments with small staffs will have trouble finding someone
who is unfamiliar with a case to conduct a lineup.
There are two answers to this.
One is that most neighboring jurisdictions are no more than 20 minutes
away; it wouldn't be that hard to find someone who didn't know about
suspects in a case. The second is that there are automated ways of
administering such lineups. A Canadian researcher has created a software
program that administers lineups via laptops, asking the witness at the end
for a statement about his or her level of certainty. One New Jersey
assistant prosecutor designed a wooden board with six openings, each of
which can slide open, one at a time. Drug forfeiture funds were used to
pay a carpenter to make one for each of Union County's 23 police agencies.
Another complaint is that this technique is untested, based on university
research rather than real police practice.
"It all struck me as theoretical," said Tom Needham, former chief of
staff to the Chicago Police Department, who served on the Governor's
Commission on Capital Punishment, which included sequential lineups
among its 85 recommendations. "Why don't we wait and see how it goes out
there in New Jersey."
New Jersey started doing sequential lineups a year ago, by order of the
state attorney general, with little fanfare and, so far, little complaint.
"I'm pleased to tell you we're not experiencing any difficulties," said
Richard Rodbart, Union County's deputy first assistant prosecutor. Rodbart
said it's too early to tell whether the new procedure has increased the
credibility of eyewitness testimony in court.
Michael Mastronardy, chief of the Dover Township, N.J., police department,
said the new procedures haven't cramped the style of his 150 officers. His
only concern is about the state providing sufficient funding to train
them. "In my 10 years as chief and 28 years on the force, I've experienced
situations with identifications where people are sure, though all the
evidence says, no, that's not the person," Mastronardy said. "I'd rather
have fewer overall identifications than a false identification."
That is the expectation. Sequential lineups don't necessarily heighten
the probability of positive identifications, but they reduce the chance of
false ones.
Of course there will be instances where a formal police lineup is not
possible. If a lineup has to be conducted, say, outside the station house.
But there are ways state legislation could accommodate those exceptions.
The governor's commission has recommended one more protection, that lineup procedures be videotaped, including a witness' confidence statement. At the very least, they should be audiotaped.
Statements made by a witness during the course of a lineup can be
essential information to demonstrate later the confidence level of the
witness at the time of identification. Too often, witnesses who were
somewhat uncertain about their lineup selection suddenly become confident
once trial rolls around because their decision has been confirmed by
investigators.
Given the cost--virtually nothing--these changes should be easy for
Illinois lawmakers to adopt this fall during the veto session, despite the inevitable thunder and lightning they will hear from some law enforcement
groups in opposition.
"Police are just resistant to change," said Sgt. Paul Carroll, a retired
former Chicago police sergeant who estimates he administered more than
1,000 photo and live lineups, and who now travels the world as a
consultant and trainer on sequential lineups. "But cops know as well as
anyone, it does no good to clear a crime and have the wrong guy in jail."
Copyright (c) 2002, Chicago Tribune