From: Baltimore Sun

Cases of misidentification prompts

calls for change

                    Witnesses: DNA-based exonerations have many questioning a key tool in

                    criminal investigations.

 

                    By Stephanie Hanes

                    Sun Staff

                    Originally published November 18, 2002

 

                    Three people, including the teacher raped in her Towson apartment,

                    picked Bernard Webster from a police lineup in 1982, essentially ensuring

                    the Baltimore man's conviction.

 

                    Two years later, two boys from Rosedale said they recognized Kirk

                    Bloodsworth as the man who walked away from Becky's Pond with

                    9-year-old Dawn Hamilton, who was later found raped and murdered.

 

                    This fall, Montgomery County police received tips about a white truck or

                    van speeding from the sniper shootings and searched scores of matching

                    vehicles. The suspects charged in the killings were driving a blue

                    Chevrolet sedan.

 

                    For decades, witness identification has played a key role in criminal

                    investigations, directing police to suspects and swaying juries. But a wave

                    of DNA-based exonerations, including those of Bloodsworth in 1993 and

                    of Webster this month, have many questioning this once-basic piece of

                    evidence.

 

                    Some attorneys, academics and even the Justice Department have

                    recommended basic changes to the way officers collect witness

                    information. Others have encouraged court systems to address the

                    growing body of research showing that witnesses, despite best intentions,

                    are often wrong.

 

                    "When people witness a crime, whether they're the victim or a bystander,

                    they're taking in a lot less information, and a lot less detailed information,

                    than they may think," said Gary L. Wells, a professor of psychology at

                    Iowa State University who has conducted research on this topic since the

                    early 1980s.

 

                    But change has come slowly. While some districts -- most notably the

                    state of New Jersey -- have adopted these recommendations, most have

                    not.

 

                    In Maryland, few if any police departments have changed the way they

                    conduct live lineups and photo arrays to correspond to a policy backed

                    by the Justice Department. The departments say they already take

                    precautions to ensure witness credibility.

 

                    In addition, Maryland judges are not required to let experts talk to jurors

                    about the fallibility of witness testimony. And the state's stock jury

                    instructions about such testimony are outdated and actually contradict

                    current science, defense attorneys say.

 

                    'God knows how many'

 

                    "You know, it's really scary," said defense attorney Carroll McCabe. "We

                    see all the people now who have been proven innocent through DNA.

                    God knows how many people have been falsely convicted of armed

                    robbery who will spend many years in jail because there's no DNA to

                    exonerate them."

 

                    The Innocence Project, a New York-based group that works to identify

                    and free those wrongly convicted, estimates that incorrect eyewitness

                    testimony helped convict 70 percent of the people subsequently

                    exonerated by DNA evidence.

 

                    Extensive research has been conducted on why people so often

                    misidentify suspects.

 

                    "People are very suggestible," said Yale Law School Professor Steven

                    Duke. "We just don't remember what we see."

 

                    A classic law school exercise proves the point. After a staged surprise

                    attack, students are told to write descriptions of the "suspect" they just

                    saw.

 

                    "You get an incredible range, from age, height, weight to race," said

                    University of Maryland Law School Professor Douglas L. Colbert. "I

                    remember that there was a disproportionate number of witnesses who

                    identified the perpetrator as a person of color."

 

                    Stress, psychologists say, makes memory worse. The idea that a victim

                    will never forget the face of an attacker is simply a myth, they say.

 

                    "Jurors believe eyewitness accuracy is tied strongly to confidence," said

                    Amy L. Bradfield, an assistant professor of psychology at Bates College

                    in Maine who has written extensively on misidentification. "It turns out

                    there is a small relationship between confidence and accuracy. You can

                    have this really confident, compelling witness who can also be wrong."

 

                    The teacher who identified Webster as her rapist remains convinced he is

                    guilty, prosecutors say, even after DNA tests exonerated him.

 

                    Small changes in policy

 

                    Researchers say police can limit misidentifications with small changes in

                    policy. Witnesses should look at possible suspects or their pictures one at

                    a time, the researchers say, rather than in a group. That way, witnesses

                    are comparing images to their own memory, not picking the person who

                    looks most like the attacker compared with other photographs or people.

 

                    Researchers also say that someone unfamiliar with the suspect should run

                    the lineups rather than a detective working on the case. There are too

                    many ways for an officer involved in a case to unconsciously push a

                    witness to one choice or another, according to Wells and other

                    psychologists.

 

                    The Justice Department supported this research in its 1999 "Eyewitness

                    Evidence" guide.

 

                    "Scientific research indicates that identification procedures such as lineups

                    and photo arrays produce more reliable evidence when the individual

                    lineup members or photographs are show to the witnesses sequentially --

                    one at a time -- rather than simultaneously," the guide states. "Similarly,

                    investigators' unintentional cues (e.g. body language, tone of voice) may

                    negatively impact the reliability of eyewitness evidence."

 

                    In Illinois, where Gov. George Ryan declared a moratorium on executions

                    in 2000, the Governor's Commission on Capital Punishment has

                    recommended all law enforcement agencies follow those guidelines.

 

                    In New Jersey, police departments changed their policies more than a

                    year ago in a move prompted by the judiciary, said state Deputy Attorney

                    General Lori Linskey.

 

                    State judges, she said, "were really concerned about all these

                    exonerations taking place across the country. They had let it be known

                    that unless we took steps to make the system better, they would take

                    steps to limit the use of eyewitness testimony in trial."

 

                    In New Jersey, the state attorney general has authority over all county

                    prosecutors and police departments. But in other states, including

                    Maryland, it is more difficult to prompt broad-based change.

 

                    The Maryland attorney general's office deferred to police when asked

                    about lineups and photo arrays. Patrick L. Bradley, deputy director of the

                    Maryland Police and Correctional Training Commissions, said the agency

                    teaches basics on lineups but leaves the details to local departments.

 

                    In Baltimore County, a detective involved in a case shows witnesses the

                    photos simultaneously, spokesman Bill Toohey said.

 

                    Toohey said it was unclear how showing pictures one by one would

                    diminish unintentional bias. He also said the department would not want an

                    uninvolved officer to run the lineups because that officer would then have

                    to spend time in court on the case, he said.

 

                    "That would slow down the process in many ways," he said.

 

                    Baltimore City police have a similar policy, said Col. Robert Stanton,

                    chief of detectives.

 

                    Stanton said he had not heard of the studies showing the benefits of

                    sequential photo arrays and lineups.

 

                    Ensuring credibility

 

                    He said city police take steps, such as changing the order of a lineup, to

                    ensure witness credibility. "The detectives want a correct ID as much as

                    the victim does," Stanton said.

 

                    Maryland's judiciary has not recently discussed the issue, said Jeff Welsh,

                    spokesman for the Court Information Office.

 

                    That frustrates some defense attorneys, who are critical of the state's

                    standard jury instructions in which jurors are told to consider the certainty

                    and confidence of witnesses -- characteristics that do not indicate

                    accuracy, research shows. Some defense attorneys also say it should be

                    easier to introduce experts on witness testimony.

 

                    But mainly, defense attorneys and other legal experts say they are worried

                    that innocent people are going to prison.

 

                    "I receive letters almost weekly from people who ask for someone to look

                    into their cases," said Colbert, the Maryland law professor.

 

                    "I don't know what to do with those letters most of the time. There are

                    very few people who will take on these cases on a pro bono basis," he

                    said. "It takes an enormous effort to investigate a wrongful conviction

                    based on misidentification.

 

                    "Yet I am convinced there are many people who continue to be

                    wrongfully convicted on the basis of eyewitness identification."