The Law and Science of Eyewitness Identification

“Several years ago, I sat in a tavern in a city of abandoned textile mills with a client who had been exonerated of several rape convictions by DNA testing. Like the city itself, my client saw better days ahead. The police investigations into the crimes were riddled with errors, and he would later reach a multimillion dollar settlement in his civil rights case. Yet, as we met for the first time to look over the case file, another disturbing aspect became clear: the sheer number of times witnesses had misidentified our client during the investigation.

One area of law in need of profound change is the process by which courts and investigators collect witness identification evidence. Eyewitness identification plays a fundamental role in criminal cases, and also plays a part in civil cases and internal business investigations. But this critical tool is often plagued with reliability problems. While it is important to use identification procedures to solve crimes, it is equally important to exclude innocent people from prosecution.

According to the Innocence Project, since 1989, there have been 349 wrongful convictions overturned via DNA testing. In those cases, eyewitness misidentification was a factor in over 70% of those cases—far more than any other factor.

Last year, I attended the 2016 National Symposium on Eyewitness Identification Reform along with other lawyers and investigators. We studied and discussed the latest research. Historically, many procedures for testing eyewitness identification were not validated in a scientific manner before being implemented by investigators. As a result, many of us have been trained using eyewitness identification techniques that are outmoded and flawed—and those methods have led to innocent people being implicated in an investigation.

However, forward-thinking investigators throughout the country are making changes in their techniques based on new scientific research in this area. Below, I summarize some highlights of the research and provide a link to free training materials.

The Law

The U.S. Supreme Court’s decision, Neil v. Biggers (1972), was one of the first cases where the court made extensive recommendations on evaluating eyewitness testimony. In somewhat of a departure for Supreme Court decisions, the court delved into the facts:

“The assailant directed the victim to ‘tell her [the daughter] to shut up, or I’ll kill you both.’ She did so, and was then walked at knifepoint about two blocks along a railroad track, taken into a woods, and raped there. She testified that ‘the moon was shining brightly, full moon.’”

Biggers was later identified during a live showup at the police station, where the victim viewed Biggers. He was made to repeat the threat uttered by the rapist. Finding the showup here met the criteria for reliability, the court listed five factors for evaluating the accuracy of eyewitness identifications:

“As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”

The Neil v. Biggers factors were confirmed in a 1977 case, Manson v. Brathwaite, in which the Supreme Court set a low barrier to admitting shaky evidence, holding that if the circumstances of the identification procedure were suggestive, the Court must then weigh the “totality of the circumstances” to determine whether the identification is still reliable. The law of the land for over three decades now, Manson v. Brathwaite has come under increasing criticism that its holding is inconsistent with recent scientific studies into witness identification and memory.

The Supreme Court has noted the unique power of witness testimony; Justice William J. Brennan, Jr.’s dissent in the 1981 case Watkins v. Sowders summed it up best:

“[E]yewitness testimony is likely to be believed by jurors, especially when it is offered with a high level of confidence, even though the accuracy of an eyewitness and the confidence of that witness may not be related to one another at all. All the evidence points rather strikingly to the conclusion that there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, `That’s the one!’”

The Research

What do we mean when we refer to eyewitness identification?

Eyewitness identification can occur in several formats: a showup, live lineups, or a photo lineup. Showups—where a suspect is apprehended and shown “live” and in-person to a witness, close in time to the event—have been demonstrated to have higher percentages of both correct and incorrect identifications as compared to lineups. Showups tend to be have heightened problems with suggestibility, given the fact that they involve just one person who is surrounded by multiple police officers.

Lineups occur at a time somewhat removed from the event, but because they are planned and staged, a process exists to minimize contamination by suggestive elements (for example, a suspect standing closer to the victim than all lineup fillers; police clapping after a successful identification of a suspect).

How often are witnesses successful in their identification? In one study of 11 peer reviewed studies and over 6,000 actual police lineups, witnesses selected the suspect 41% of the time; witnesses selected a lineup filler 37% of the time (i.e., they selected a person who was known to be innocent of the crime).

Several phenomena have been observed in studies where a crime is staged—say, a person enters a classroom in front of student “witnesses” and steals a purse—and the students/witnesses later are interviewed in a controlled setting about their observations.

Here are a few key findings:

1. Proper eyewitness instructions can reduce false positives.

Research has demonstrated that eyewitnesses tend to identify the person from the lineup who, in the opinion of the eyewitness, looks most like the culprit relative to the other members of the lineup. The problem became readily apparent when experiments were run where the actual culprit was not present in the lineup. Under controlled conditions, a concept called the “relative judgment process” will often yield a positive identification—even when the true culprit had been removed from the lineup. While this may seem to be an obvious, simple observation, research shows the effect is incredibly damaging to accuracy.

But research has demonstrated that this problem can be partly remedied with a simple instruction to the witness that the true culprit may not be in the lineup. Some state courts have adopted a set of instructions to be given to eyewitnesses—such as a caveat that the witness need not feel compelled to make an identification, and that police will continue to investigate this incident, whether or not the witness makes an identification.

“These instructions can reduce pressure on the witness to feel as if they must pick a culprit, and this leads to more accurate results.

2. Double-blind identification procedures can prevent information “leaks.”

A double-blind eyewitness identification is one in which neither the administrator nor the eyewitness knows the identity of the suspect. Research has shown that witnesses were adept at picking up clues from the person administering the lineup when that administrator knew the identity of the suspect. The lineup administrator tended to “leak” information about the suspect in subtle (and not so subtle) ways: leaning forward at certain times; raising his hands; making a comment like “take another look at the third guy;” smiling or nodding in agreement when a positive identification was made; or conversely, frowning when the wrong person was chosen. These kinds of cues lead to inaccurate identifications, as well as false levels of confidence in the witness.

Studies have shown there is far less chance of contamination of the process when double blind testing is implemented.

3. Confidence statements from the witness are most reliable at the time of initial identification.

The role played by eyewitness mistakes in the DNA exoneration cases has helped to create a growing impression that eyewitness memory is inherently unreliable. I have heard several witnesses tell me this on recent cases, in essence doubting their own ability to remember accurately. But this overstates the case. Researchers have discovered—perhaps surprisingly given the general trend— that when eyewitnesses are questioned using proper identification procedures, the confidence they have in their initial identification usually is a highly reliable indicator of accuracy.”

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Public Safety Academy At School Aims To Prepare Students For Careers

“Is high school too early to figure out what career path to follow?

The Olathe School District doesn’t think so.

When the new Olathe West High School opens for all students on Thursday, the district will have a total of 17 specialty academies in its five high schools.

For as long as most people can remember, the main mission of Johnson County schools has been preparing kids for college.

“I think we’ve done, for years, a really good job of helping kids be college-ready, but the career piece is something that kind of went in a different direction,” says Jay Novacek, principal of the new high school.

The Kansas State Department of Education wants to refocus districts so students are ready for college or a career when they graduate.

So Olathe West will offer courses for kids who are looking for a first-responder career.

“Not every kid has to go to college to be successful,” Novacek says. “There are a lot of awesome professions, public safety included, whether I’m a police officer or firefighter, an EMT person, that are going to give kids a great opportunities and a long career.”

Jeff Van Dyke, who was a Wichita cop for eight years, runs the public safety program and most recently taught middle-school physical education. He says there is a lot of practical experience students can get in the large space that houses the public safety program.

“We can use it for all kinds of real world-type learning situations such as setting up a crime scene, having the kids come in and process the crime scene in here,” Van Dyke says.

The Public Safety space is tucked into the side of the $82 million dollar building. Students pass a girder from the World Trade Center as they enter.

It’s a reminder, says Olathe Fire Chief Jeff DeGraffenreid, of the kind of people police and fire departments around here want to hire.

“A strong moral compass and a willingness to assist their fellow man is really what we’re looking at. Helping these students see the value of that, and hopefully someday we’ll be able to hire a great student from here,” he says.

An Olathe fire captain will teach the firefighting classes in the academy.

Olathe West is certainly not the first high school in the country to offer courses in public safety. But it’s one of the few that’s fully integrated with the rest of its academic courses, DeGraffenreid says.

Students, he says, will get a quality Olathe School District education and, after passing the state firefighting test, be ready to work.

“They’re great at math. They’re great at science. They’re great at writing. But they’re also fully prepared to work on a fire truck soon after graduation,” he says.

In addition to the public service academy at Olathe West, the district has also created a new, green technology academy at the school. It’s the 17th such academy the district has added since 2003.

Most of them, like the engineering or business academies, are geared toward college-bound students.

The crucial thing, says Deputy Superintendent Allison Banikowski, is finding the student’s passion and finding it early.
“And making sure, then, all the content and course work is geared toward that passion,” he says.

The Public Safety program is an acknowledgment, the district says, that it plays a significant role in getting kids ready to work in the community.”

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Becoming an Agent: An Inside Look at What It Takes

“Part 1: The First Week

It’s a hot afternoon in August, and the last of the trainees steps off a coach bus parked outside a dormitory at the FBI Academy. One by one, young men and women from all walks of life make their way toward the entrance with luggage in tow.

A sense of nervous excitement can be felt as supervisors, counselors, and others meet each trainee inside the lobby. They shuffle from station to station and gather paperwork, equipment, class schedules, and dorm assignments. At one of the stops, trainees receive standard-issue polo shirts, khaki pants, and workout gear.

This diverse band of trainees is converging on Quantico from across the country with one goal in mind: to complete the Basic Field Training Course and become special agents of the FBI.

The training will be taxing on many levels—academically, physically, and psychologically—and success is far from guaranteed. But through the close bonds inevitably formed by fellow classmates and support from the Academy’s training staff, new agents will endure the challenges that lie ahead.

Over the span of five months, trainees will learn the fundamentals of the special agent tradecraft. They’ll root out drug dealers and bank robbers in Hogan’s Alley, the FBI’s mock town and practical training facility. They’ll expose terrorist cells and learn how to conduct challenging interviews. They’ll study legal issues and investigative procedures, gather and analyze evidence, and fire thousands of rounds at the range. Along the way, new agent trainees will work alongside new intelligence analysts to identify threats and develop critical thinking skills.

The intense training regimen is necessary to prepare new agents to carry out the FBI’s complex mission of protecting the nation from a host of major national security and criminal threats—including those posed by terrorists, spies, hackers, gangs, and more—while upholding civil rights and the Constitution of the United States.

Just getting to the Academy was a long and hard-fought journey for the trainees arriving this summer day. They had to compete against tens of thousands of applicants in one of the most grueling selection processes in the country. Navigating the many elements of the application process—including several rounds of interviews and a thorough background check—was its own test. Ultimately, perseverance paid off.

Like their predecessors, this class of new agents comes with a variety of career experiences—some not as traditional as you might expect. The majority of students have military, law enforcement, or criminal justice backgrounds, but there are also former teachers, scientists, IT professionals, entrepreneurs, and more.”

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Train Nurses to Spot Human Trafficking Victims

Healthcare professionals are in a unique position to identify and rescue victims of human trafficking. Nearly 88 percent of them seek medical treatment during captivity, and of those, 68 percent of them are seen in the emergency department (ED). Unfortunately, many victims slip through the cracks and remain “hidden.” A study released today (June 26, 2017 at 12:01 a.m.) in the Emergency Nurses Association’s Journal of Emergency Nursing aims to help emergency nurses better identify victims of human trafficking. The study details an evidence-based project that shines a spotlight on the importance of formal education, screening and treatment protocols for emergency department personnel to guide identification and rescue victims of human trafficking.

“Interestingly, we found that not only were formal education and treatment methods effective strategies to improve recognition and save human trafficking victims, but they also increased the identification of other forms of abuse such as domestic violence and sexual assault,” said study author Amber Egyud, DNP, RN, chief nursing officer and vice president of patient care services at Forbes Hospital, Allegheny Health Network.

A multidisciplinary team implemented the project at a level two trauma center in a southwestern Pennsylvania community hospital ED where no human trafficking victims had ever been identified before. The team taught ED staff a two-pronged identification approach: medical red flags created by a risk assessment tool embedded into the electronic health record and a silent notification process. They also advised on the proper protocol to ensure the successful rescue and safety of the victims.

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Church security law passes in Texas

“The Texas Legislature has passed the Church Security Protection Act aimed at allowing churches to provide their own security through members of their congregations.

In a special report, Angel San Juan found that Texas is one of just three states — Oklahoma and Florida are the other two — that restricts church members from providing their own security.

Under Texas law, a church would have to establish itself as a security company and be licensed by the state or hire a company that is licensed by the state, which can be an expensive undertaking.

But violating the law can also be costly with fines up to thousands of dollars.

That’s what led a group here in Southeast Texas lead the charge to change the law.”

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How Private Investigators Can Effectively Handle Intense Situations

“A private investigator’s days are often filled with uneventful surveillance and dead ends, but that’s only part of the job. On occasion, PIs may land in hot water and must rely on their communication and negotiation skills to get them out of it.

It takes talent, poise, and honed interpersonal skills to talk an enraged spouse out of swinging at you. Physical weapons are not always available, so we use what we do have in our arsenal—words, empathy, and emotional intelligence—to de-escalate a volatile situation.

Operating effectively under stress is a must-have skill in this line of work. No amount of training can prevent us from feeling fear in extreme situations. But we can learn to mitigate the stress symptoms, and even harness them—to laser-focus our energies on solving the problem at hand.

The Adrenaline Rush

In stressful conditions, our adrenal glands secrete a hormone to prepare the body for “fight or flight.” That shot of adrenaline can feel like a head rush: Your heart races. You breathe faster and deeper. You feel a surge of energy, heightened awareness, or even a suppressed pain response. And under extreme stress, you may experience tunnel vision, auditory exclusion (temporary hearing impairment), or a sense that time has slowed.

Some people seek out that rush (in its milder forms) as a welcome distraction from the more tedious aspects of investigative work. But when the job brings us into contact with unpredictable people and dangerous places, that physiological fight or flight response isn’t just a bungee-jump in the park anymore; it’s a survival mechanism.

The flip side is that those same symptoms that prepare us to deal with danger can also cloud judgement and make clear thinking a challenge.”

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20 Ways to Bring Your Investigative Game to the Next Level

“I’ve got an admission to make: I am kind of addicted to self-improvement. I’m not sure when this phenomenon started, but it turns out that I am not the only one – it’s a $10 billion per year business.

But what I am really obsessed with is making myself a better investigator, mostly because after 15 years in this business I have realized that there are no books or courses that actually teach what I do (which is why I made one—details to follow).

And because of technology and the changing landscape of the business, what I do today is almost entirely different from what I was doing 10 years ago.

So how do you keep up your skills and bring them to the next level?

1. Follow blogs.

Of course there is Pursuit Magazine, and there are dozens of other blogs out there worth reading, but PI Buzz, PINow.com, The Ethical Investigator, Guns, Gams & Gumshoes and Private Eye Confidential are at the top of my list.

2. Read books.

3. Write.

Whether you write novels or articles about your investigative methods, writing helps you synthesize your thoughts and provide more clarity.”

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Expert: Wrongful Convictions Can be Reduced by 30 Percent

“Brian Leslie is essentially saying the same thing your mother did— “don’t jump to conclusions.” But the forensic deception expert is saying it to cops as a potential way to reduce wrongful convictions and instances of profiling—a number he thinks can be improved by at least 30 percent.

Leslie, who works with Criminal Case Consultants analyzing witness testimony in wrongful conviction cases, says the difference lies in the predisposition of the police officer, which subsequently affects how s/he vets witnesses and the information they provide.

A “predisposed officer” who has formed an opinion based on emotion is more likely to disallow or overlook information that is averse to the officer’s initial, kneejerk theory of the perpetrator. According to Leslie, this predisposition is the main reason officers both subconsciously and consciously profile specific groups of people.

To rectify this, Leslie suggests using a different type of investigational method.

Traditional police criminal investigations use a deductive method, in which an initial theory is formed based on information provided by witnesses and/or confidential informants. However, Leslie says by using an inductive method of investigation, it detaches the officer from the emotional elements of a case, allowing a more analytical vetting process.

Simply put, this means the officer analyzes witness credibility first, and then the information provided. This inductive process forces the officer to accept all information by all sources, then categorize it by relevance and credibility. It’s this small investigational difference Leslie points to as being the culprit behind wrongful convictions that can, literally, destroy lives.

The variance between deductive and inductive investigations is part of what Leslie calls the “Mr. X Theory,” which he expands upon in his new book, “Visual Liar.”

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Mall Grab-and-Dash leads Victoria Police to $100K of stolen goods

“Victoria police say they discovered a stash of stolen goods worth an estimated $100,000 following an investigation triggered by a mall “grab and dash.”

Two men and a woman, all from Victoria, have been identified as suspects and are expected to face charges, police said police in a written release. One of the men remains in custody.

“This file is a great example of teamwork,” said acting Chief Const. Colin Watson. “Store staff, mall security personnel, private citizens and our RCMP partners all played a role in helping our officers with this investigation.”

According to police, a man tried to run off with a wooden elephant carving from Hillside Centre on June 10. Police said the suspect was identified and believed to be a “prolific property offender” based on surveillance footage.

The agency then worked with Sidney RCMP to eventually locate three suspects.

When investigators executed search warrants, they discovered hundreds of stolen items including dolls, bedding, statues and electronics.

The suspects are expected to face a number of charges including theft under $5,000 and possession of stolen goods.

Victoria police say the rightful owners should contact its non-emergency line to retrieve recovered items.”

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Houston Men Charged with Theft of 1000 pairs of Jeans from Mall

“Two Houston men have been charged in a scheme to steal more than $56,000 in jeans including more than 100 pairs of jeans in Southeast Texas.

Ramirez Nava Rodriguez, 41, and Jose Isabel Del Angel, 54, both of Houston, have been charged with felony charges of “Theft – Aggregate” according to a probable cause affidavit obtained by 12News from the Harris County District Court.

Del Angel, whose bond is set at $2000 was arrested on August 6, 2016 and it is unknown if Rodriquez has been arrested. Rodriguez bond will be set at $10,000 according to the affidavit.

The pair are suspected of stealing 980 pairs of men’s and women’s Levis jeans, valued at $56,722, from JC Penny stores in the Harris County and surrounding area including the Central Mall location in Port Arthur..

The thefts took place from December 2012 through July 2016 with the two most recent thefts taking place at Central Mall.

The affidavit alleges that Rodriguez stole the bulk of the jeans and Del Angel helped sell them at a Houston flea market.

Police believe that Rodriguez was the leader of a group of “professional boosters” who were committing the thefts.

The document alleges that on July 2, 2016 Rodriguez stole 64 pairs of jeans valued at $3918 and on July 30, 2016, he stole 44 pairs valued at $2552 from the JC Penny store in Central Mall.

Rodriquez was observed surveillance video using the “matador” method to commit the thefts using a shirt to hide several pairs of jeans at a time from store associates the affidavit said.

He would take the jeans out the camera’s range, use a tool to remove the “electronic Article Surveillance tag” and then put the jeans into a large JC Penny bag he had concealed in his pants pocket.

He would then take the stolen jeans to his car and repeat the process several times during one trip.

An investigator from JC Penny worked with Houston Police to track and capture the suspects.

The store’s investigator and an undercover Houston Police officer each purchased stolen jeans from Del Angel at separate times at Sunny Flea Market in the 8700 block of Airline Drive in Houston.”

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