Benjamin N. Cardozo School of Law, Yeshiva University MEMORANDUM

Transcription

1 Benjamin N. Cardozo School of Law, Yeshiva University MEMORANDUM To: Participants in NACDL conference call (5/10/06) Fr: Rebecca Brown, Policy Analyst, Innocence Project Re: New Strategies for Reforming Eyewitness Identification Post-Illinois Report Date: May 11, 2006 In the wake of publication of the Illinois Pilot Program evaluation, which called into question the sequential presentation of lineup photographs as a plausible reform to curb misidentifications of the innocent, a national teleconference was hosted by the National Association of Criminal Defense Lawyers to strategize eyewitness identification reform moving forward. The Illinois Pilot compared the traditional (non-blind, simultaneous) lineup procedure to a sequential procedure with blind administration across three Illinois jurisdictions, Chicago, Evanston and Joliet. Academic Perspective: Dr. Nancy Steblay Dr. Nancy Steblay, a professor of psychology at Augsburg College who has researched eyewitness memory for 15 years and has recently worked with the Hennepin County (Minnesota) Attorney s Office to evaluate its pilot program for blind-sequential procedures, discussed her findings which will soon be published in the Cardozo Law School s Public Policy Law and Ethics Review and will be available on her website: The Minnesota field study was initiated by the County Attorney s Office, which was already convinced that the blind-sequential procedure was superior to the traditional (non-blind and simultaneous) lineup protocol. Four cities comprising Hennepin County participated in the field study and a total of 280 lineups were evaluated. The qualitative outcomes were quite favorable and law enforcement officers were confident that they were retaining good suspect identifications, while reducing filler identifications. This suggested that fewer eyewitnesses were guessing about the lineup members they identified. The quantitative results supported the anecdotal evidence provided by law enforcement. [N=280; suspect identifications = 54%; filler identifications = 8%; and no choice identifications = 38%]. On the basis of the Minnesota experience, Dr. Steblay noted a number of lessons learned : There is not absolute level of integrity in any field study The suspect identification rate may include false identifications A high filler rate suggests weak identifications and a high likelihood of guessing which indicates a risk for innocent suspects [Filler picks were not prosecuted in Hennepin County, so this was not dangerous for those whose photos were chosen, but guessing that results in identification of suspect identifications can be hazardous to the innocent] It is important to be able to disaggregate data so that one has a clear picture of what is being measured and any deviation from protocol can be identified. In Hennepin County, Barry C. Scheck, Esq. and Peter J. Neufeld, Esq., Directors Maddy delone, Esq., Executive Director 100 Fifth Avenue, 3rd Floor New York, NY Tel: 212/ Fax: 212/

2 Page 2 for instance, all of the data evaluated represented first attempt identifications in lineups with six members, using a blind, sequential procedure. Stranger vs. known suspects were disaggregated for the purpose of analysis. Lapping, or going through the sequential photo set was permitted in Hennepin County, but the number of laps were also disaggregated for the purposes of analysis. Dr. Steblay also provided an analysis of the Illinois pilot in the context of her own field research. She noted that there were several points of deviation from protocol established by eyewitness researchers. For instance, there were examples of lineups in which no suspects were present, as well as lineups in which two and sometimes three suspects were contained in the same lineup. Other variations in the procedure made it difficult to get a strong picture of what forces were affecting outcomes. Lineup size ranged from four to forty-six lineup members. Photo and live lineup results were not always disaggregated, further confounding the analysis. Finally, it was unclear whether the results indicated a first or second viewing of the lineup as there were instances where a photo lineup with a positive identification was followed by a live lineup, in which the same suspect was the only common member in both. Despite the problems Dr. Steblay identified with the design of the Illinois evaluation, she noted that the blind-sequential outcomes (suspect rate = 57%; filler rate = 7%) indicated very good performance that comported with the Hennepin County findings. The findings with respect to the traditional lineup procedures (suspect rate = 67%; filler rate = 2%) were more difficult to unpack because of the factors described above. While the Illinois report concluded that the traditional approach was preferable, it is important to contextualize the findings. A higher suspect rate and lower filler rate may be due to non-memory factors, including administrator influence, poor lineup construction, poor filler choices, and the eyewitness s use of relative judgment. More knowledge about these factors would help to interpret the results. Dr. Steblay noted that the absence of any filler selections in either Chicago or Evanston was extremely puzzling and does not comport with any existing social science research on eyewitness identification. Of 152 lineups in Chicago, not one eyewitness chose a filler photograph. Dr. Steblay opined that there is a range of possible explanations for this outcome. This could be due to a failure on the part of law enforcement to record filler selections. Perhaps the filler photographs were not appropriate selections.1 Officer influence on the eyewitness is another possible explanation. There were also inconsistencies across jurisdictions. For instance, the results from Joliet suggest a superiority in the blind-sequential procedure (suspect identification rate = 69%; filler rate = 3%) over the non-blind simultaneous protocol (suspect identification rate = 61%; filler rate = 6%). Dr. Steblay concluded that if one is to look only at the outcomes from the blind-sequential procedure in Illinois, the results look good. There is no way, based upon the design of the study, 1 In Hennepin County, for instance, Dr. Steblay tested the efficacy of the filler photographs that were used in lineups by asking mock witnesses who had not witnessed the crime, but did receive a description of the perpetrator, to select a member of the lineup. On the basis of an even distribution of filler picks by mock witnesses, Dr. Steblay was able to conclude that the filler selections were of good quality. This was not accomplished in Illinois, so it cannot be determined whether filler selections was a factor in the low filler rate in Illinois.

3 Page 3 to meaningfully compare these results to the traditional lineup method.2 The Illinois report represents only one study, whose results can be interpreted many ways. Policy Perspective: Stephen Saloom, Director of Policy, Innocence Project The Innocence Project has been looking at eyewitness identification reform for quite a while and, with the help of social scientists, has amassed a huge body of peer-reviewed research that supports a range of eyewitness identification reforms. In this context, the IP has concluded that the Illinois report is not a scientific study, but rather a report on the experiences of one jurisdiction that was hostile to a potential reform. The report has value in assessing the implementation of an eyewitness pilot, but because it was not a scientific study, it cannot be looked upon to be predictive of the outcomes of the sequential, blind reform package. The Illinois experience teaches us that you cannot impose reforms on a police department. Instead, members of law enforcement and others involved in implementation must be educated and buy-in must be achieved. A feedback loop must be established so that problems and concerns can be addressed throughout implementation of the pilot project. Unfortunately in Illinois, the Chicago Police Department had been on record in opposition of the reform. A hostile jurisdiction did not prove to be a good testing ground. Speaking to the results, Mr. Saloom indicated that, setting aside sequential presentation, there was general agreement about the value of a range of other reforms. The Illinois results do not attack blind administration, or the importance of giving instructions and obtaining confidence statements. A number of other studies aimed at assessing the value of the sequential presentation are being considered now and will inform the debate moving forward. In conclusion, Mr. Saloom asserts that we have not lost ground on all of the other reforms and jurisdictions should move along to institute them. Legal Perspective: Timothy O Toole, Chief, Special Litigation Section, Public Defender Service of DC Mr. O Toole stated that the implications of the report are not yet clear. The Illinois experiences may not prove to hold much weight as jurisdictions assess the value of different eyewitness reforms. The report may only affect debate regarding sequential presentations. It is also possible that blind administration of lineups may come under attack since the report opines that the use of a blind administrator impeded the collaborative process traditionally applied to crimesolving. While the Illinois report is only one study that does not conform to other available field data, Mr. O Toole voiced concern about its impact. He noted several problems with the design of the study and its evaluation. There was no protocol established for the traditional, or status quo, lineup procedure. No standards were established for the number of individuals in the lineup or for the location of the lineup. The absence of any filler picks in either Chicago or Evanston 2 Several researchers have pointed out that the Illinois study, in comparing the sequential procedure using a blind administrator to the simultaneous procedure absent blind administration, creates a confound. A third category of analysis, namely a simultaneous procedure with blind administration, was missing from the design of the study. This scientific flaw, in addition to the factors explained by Dr. Steblay, precludes a meaningful analysis of the pilot s results.

4 Page 4 make the results difficult to trust. While the Illinois report provides a good abstract picture of how the blind-sequential lineup procedure works, it does not present a valuable picture of how the simultaneous non-blind procedure was done. Mr. O Toole opines that we are a potential turning point vis-à-vis litigation. Historically, the science around blind and sequential reforms was not controversial. In D.C. recently, a judge who traditionally allowed eyewitness expert testimony ordered a Frye hearing to understand the science of eyewitness identification before allowing an eyewitness expert. There are other implications as well perhaps this could spill into Manson v. Braithwaite, when the court weighs the corrupting effect of suggestive identification" against "the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Perhaps the Illinois study will have far-reaching effects into the admissibility of experts. Mr. O Toole put forth the following recommendations and conclusions: The defense community response to the Illinois study must be strong The study is at odds with existing social science research and it should be placed in a proper context Once other pilots are evaluated, Illinois can be compared to other jurisdictions It is important that lawyers learn about the flaws of the study in some detail It cannot be forgotten that DNA exonerations prove the fallibility of eyewitness identification Defense lawyers must be pushing for more field studies with established protocols, specifically around the traditional (non-blind, simultaneous) procedure In response to those who claim that field studies are the only way to assess the value of eyewitness reform, one should remember that the lab is where one figures out the science and the field is where protocols are infected and must be corrected. We need lab science as a backdrop to determine whether results are suspicious. A briefing on the Q&A portion of the teleconference follows: Q: Are there any studies regarding the amount of fillers typically picked in lineups? A: Dr. Steblay mentioned a study from California in which the filler rate was between 20-25%. There are some studies from the UK that show the same. Q: Did the Illinois Report attempt to tie guilt to other corroborating factors? A: Probable cause seemed to be the only factor that tied the identification to a trustworthy suspect ID. Q: Did non-blind administrators know that they were taking part in a pilot to study the effectiveness of a blind, sequential procedure?

5 Page 5 A: Tom Sullivan indicated that during the training for the Illinois pilot, all administrators were advised that they were in a pilot program, including those who were non-blind. Mr. O Toole opined that the fact that officers knew they were being studies was one possible explanation for the low filler pick rate. - Mr. Sullivan added that the report itself recognizes that double-blind administration is a good idea for reasons other than suggestiveness. Q: Based upon a favorable reaction of the Baltimore Police Department to the Illinois report, there are concerns that jurisdictions that are resistant to reforms will now have the fodder they need to defer or refuse to accept necessity to reform how can we respond to this? A: Mr. Saloom suggested sitting down with judiciary chairs and discussing the problems with the report. Perhaps there are opportunities to involve the media. Mr. O Toole added that the response must be tough and detailed. We should attempt to obtain public information showing Illinois s initial opposition to the pilot. He likened the Illinois response to the tobacco industry claiming that there is no cancer link to smoking. Mr. Ehlers added that Roy Malpass (one of the two evaluators of the Illinois study) is not opposed to all of the possible eyewitness reforms that we support. Lineups should be well-constructed and instructions are crucial. At the Justice for All conference in Duquesne University last month, Mr. Malpass voiced support for the videotaping of eyewitness procedures. Q: Has there been any research on whether the suspect identifications in the Illinois study were correct? A: No. It is worth noting, however, that of the nation s 176 DNA exonerations, 75% involved at least one mistaken identification. Q: Should statements of criticism of the report be publicized? A: Keith Findlay indicated that Wisconsin s AG s Office if planning to reaffirm its support of the sequential, blind procedure in the face of the Illinois report. We should be looking to police and prosecutors to criticize the Illinois report and provide support of the blind, sequential reform. Mr. Saloom added that there is much greater value in affirmative statements than in counterarguments. Q: Are there signs of retreat from those who are solidly in our camp? A: Mr. Saloom stated that Wisconsin seems to be safe. In New Jersey, there are some personnel changes that may make it politically difficult for the AG s office to come out with an affirmative message, but Lori Linskey, a deputy AG who was instrumental in sheparding the reform, has not stepped back from the reform. Q: Will there be a second wave of attacks on different reforms, such as cross racial

6 Page 6 identification, weapon focus, and age variation?3 A: Dr. Steblay has not yet scrutinized the data around these other findings, but suspects that the conclusions around these factors in the Illinois report are another sideways attack on other past scientific evidence. Others mentioned that the Illinois findings are at odds with Saul Kassin s research and other existing controlled studies. Q: What is the value of introducing scientific data in response to the Illinois data to law enforcement agencies? A: Participants indicated that it is ineffective to introduce science to law enforcement agencies. There is more value in simply stating that Illinois did not employ consistent procedures and did not compare apples to apples. More helpful data might be an FBI study cited by Christine Mumma that showed that 25% of its suspects, originally declared suspects on the basis of eyewitness identification, were later eliminated through DNA testing before trial. Mr. Ehlers referenced an analogous study from Oregon with a similar result. 3 A relevant that was circulated by Tim O Toole on May 11, 2006 states the following: Just to follow-up on something we discussed on the NACDL call yesterday, we received a pleading from the government today opposing allowing one of our experts to testify about cross-racial identifications. According to the government the Illinois study refutes the research on cross-racial ids. This is what the government's pleading had to say: "For example, a recent study of sequential double blind identification procedures in Illinois has provided evidence that may contradict [the defense expert]'s testimony regarding cross-racial identifications. That study found only a 2.3 percent difference in the number of misidentifications between cross-racial and same race identifications in simultaneous lineups; thus making cross-racial identifications substantially as reliable as same-race identifications. Furthermore, in sequential lineups, the rate of cross-racial misidentifications were substantially lower than the rate of same-race misidentifications; thus making cross-racial identifications more accurate than same-race identifications. See Report to the Legislature of the State of Illinois: The Illinois Pilot Program on Sequential Double-Blind Procedures; Sheri H. Mecklenberg, March 17, 2006." (Emphasis in original). I think this may be the shape of things to come. And for those of you not familiar with D.C., this pleading was filed by a United States Attorney (who prosecutes all our criminal cases). Please let us know of additional examples if you have them.