Eye Witness Identification

Policy and Guidelines

Chief James McLaughlin, Jr. (Ret)Texas Police Chiefs Association

Phillip Lyons, Jr., J.D., Ph.D.Sam Houston State University

June 5,2012

The Innocence Project reports out of 254 DNA exonerations 75% were misidentified by eye witness.

Innocent by Trial (jury-error) Actual Innocence

There have been over 2000

studies of eye witness procedures and results in the last 30 years. Many of these are “laboratory” but a significant number were conducted in the field.

Studies have shown misidentification rates to be between 35-50% at times.

“Memory does not function like a video tape but rather is a constructed, dynamic and selective process that can be distorted, contaminated, and even falsely imagined”.

Mason v BrathwaiteU. S. Supreme Court 1977

Opportunity to view the criminalWitness’s degree of attentionThe accuracy of witness’s

description of criminalLevel of certaintyThe time between the crime and

confrontation

Tillman v. StateTexas Court of Criminal Appeals 2011

Home invasionMurderSeveral eyewitnesses“Suggestive” photo line upsExpert witness

Legislative History

81st. Session (2009)– SB 117 & HB 3583– TCLEOSE

– HB 498– Timothy Cole Advisory Committee on

Wrongful Convictions

Texas Court of Criminal Appeals Criminal Justice Integrity Unit

House Bill 21582nd. Texas Legislature

Amends Chap. 33 of the Code of Criminal Procedure by adding Art. 38.20

Photograph and Live Lineup Procedures—each LE agency shall adopt and implement and as necessary amend a detailed written policy regarding the administration of photograph and live lineup procedures

LE agencies may adopt the model policy developed by the Law Enforcement Management Institute of Texas (LEMIT) or

create their own as long as they properly address the following issues:

LE Agency policy must address

Selection of photographs

Instructions given to witness before conducting lineup

Documentation and preservation of the results of lineup, including witness statements

Procedures for administering the lineup to the illiterate and persons with limited English

In a live lineup, if practical, assign an administrator who is unaware of who the suspect is

For photo lineups, have procedures for assigning an administrator who is capable of administering a photo lineup in a blind manner, or

In a manner consistent with other proven or supported best practices, designed to prevent influencing the witness

LEMIT

In consultation with large, medium, and small LE agencies and LE associations, and with scientific experts in eyewitness memory research shall develop, adopt, and disseminate to all LE agencies a model policy and training materials.

LEMIT shall review the model policy and modify as necessary every two years

LEMIT must complete development of model policy by December 31, 2011

Each agency must adopt appropriate policy by September 1, 2012

Perry v. New Hampshire

Decided January 11 2012 Suspect committing BMVs Officer asked eyewitness to describe

suspect She pointed out her kitchen window

to a man in the parking lot Perry said court should do a judicial

review of reliability of eyewitness identification

Supreme Court held “no need for judicial inquiry into reliability of eyewitness ID if not procured under unnecessary suggestive circumstances arranged by law enforcement.”

“Due process concerns arise only when law enforcement use identification procedure that is both suggestive and unnecessary.”

Only when such conduct creates a substantial likelihood of misidentification is suppression of evidence required.

“Defendant must establish improper police conduct. “

POLICIESLEMIT

Texas Police Chiefs AssociationTexas Police Chiefs Association

Foundation “Best Practices”

HoustonDallas

Advice is like castor oil - easy enough to give but dreadfully uneasy to take

Josh Billings

Estimator variables:

Variables affecting eyewitness reliability that are beyond the control of the justice system.

Estimator VariablesEye witness stress levelWeapon focus effectCross-racial identificationDuration of the witnessed eventDistance and lightingMemory decay

System variables:

Variables that affect eye witness identification accuracy over which the justice system has control such as line-up procedures.

System variables

Line up administration Instructions to witnessConstruction of line-up arrayMultiple identification proceduresShow up proceduresFeedback to witnessPre identification stage setting

Accuracy

Yes No

Yes TruePositive

FalseNegative

No FalsePositive

TrueNegative

Predicted

Actual

Sensitivity (low false negative) vs. specificity (low false positive)

Improve the specificity of our techniques over existing ones to lower the rate of false positives, without unduly sacrificing sensitivity, that is, while maintaining our true positives.

Goal

Focus group at Sam Houston State University on 9-23-11– Advocacy, Attorneys, Law Enforcement

Public Comment Public Hearings in Austin on 12-1-11

Policy Development

Definitions

Blind Administration Blinded Administration Double Blind Administration Witness/victim

Simultaneous vs. Sequential (decreases false positives by 33% with little, if any, sacrifice to true positives)

Blind vs. Blinded vs. Standard Selection/placement of fillers and

blanks

Policy

Instruct witness:–Suspect may or may not be

present–Administrator does not know the

identity of the suspect Multiple Identification Procedures Post identification feedback Procedures for Persons with LEP

Policy

LEMIT is delivering four training of trainers sessions, two of which have been completed already

Texas Police Chiefs Association is delivering seven trainings.

Judge Barbara Hervey of the Texas Court of Criminal Appeals provided financial assistance in the form of a grant to facilitate LEMIT’s implementation of this unfunded mandate.

Policy Dissemination

And maybe answers.

Questions