Wednesday, February 12, 2014

No Cheating Allowed: Prince George’s County Adopts the Double-Blind Method of Eyewitness Photo Identification

On February 9, 2014, the Prince George’s County Police Department (MD) announced that it will start conducting photo lineups using the “double-blind” method.  The new changes will require police officers to institute two safeguards when showing eyewitnesses a photo lineup: (1) police officers must show the witness the photos one at a time, rather than all at once; and (2) the police officer showing the photos must be unfamiliar with the case.  The change is part of an effort to minimize false identifications and subsequently, wrongful convictions.  The accuracy of photo lineups has been a hot topic over the past decade as DNA evidence has been used more frequently to overturn convictions.  A recent study by the innocence project found that eyewitness misidentification plays a role in over 75% of convictions overturned by DNA testing, making it the single greatest cause of wrongful convictions nationwide.

Eyewitness identification and photo lineups have been a topic of discussion for decades in the United States.  The Supreme Court has explored the topic in a number of cases, but the standard for admissibility generally traces back to two cases: Neil v. Biggers[1] and Manson v. Brathwaite.[2]  In Biggers, the Court laid out the following factors to be considered when determining the reliability[3] of eyewitness identification (courts analyze reliability using a totality of the circumstances test): the witnesses opportunity 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.[4]  Brathwaite took this consideration a step further and instituted a balancing test to determine whether eyewitness identification was admissible in court.  The court held that admissibility should be determined by weighing the suggestive nature of the procedure with the indicia of reliability as suggested by Biggers.[5]

Photo lineups are especially subject to criticism because of their widespread use and various issues with reliability.  One of the glaring issues with photo lineups is that they do not require any independent oversight.  Until he has been indicted, a suspect does not have the right to an attorney present during a photo lineup.[6]  In United States v. Ash, the Court held that a defendant’s sixth amendment right to counsel does not apply to “photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender.”[7]  As a result, usually the only people who can testify to an unduly suggestive photo array are the police officers conducting it and the witness subject to it.

The varied practices in photo identification also make misidentifications hard to predict.  The double-blind test seeks to eliminate two unpopular methods of photo identification.  The first is the non-sequential or simultaneous lineup.  This practice involves a police officer or detective showing the witness all the suspect photos at once, rather than one at a time.  Simultaneous lineups have been found to have a higher rate of false identification than sequential lineups.[8]  The second is variation in who is showing the witness the photos.  The concern amongst many criminal defense lawyers is that a detective familiar with the case and its victim will conduct the lineup in an unduly suggestive manner (e.g., holding one photo out longer than other, providing verbal or physical clues as to who the suspect is, asking questions like “are you sure?”).  It is important to remember that the suspect’s picture is among the pictures.  Suggestive practices, almost like a tell in poker, can happen even unintentionally when whomever is showing the pictures gets to the suspect’s photo.

What does this mean for practitioners?  Firstly, it will make challenging photo lineups in Prince George’s County much more difficult.  The presumption is that these reforms will make eyewitness identifications far less suggestive.  By reducing the chance for error, defense attorneys are going to have to look for different ways to attack witness identifications.  From a prosecutorial standpoint, this may present separate issues.  Prosecutors may find that photo lineups are not as successful as they once were, with less eyewitnesses being able to identify suspects.  Prosecutors will have to turn to the strength of other evidence in many cases to get the verdicts they desire.

For the most part, police officers and detectives are not devious people looking to punish the innocent. Yet it is important to respect the power of the eyewitness identification.  When a witness identifies a suspect in a photo lineup, they are usually then called into court to make an in-court identification in front of the jury.  With the exception of the surprise in-court confession popularized by Law and Order (and about as unrealistic as the show itself), hearing a person describe a crime they witnessed and then point to the defendant in front of a jury is extremely powerful.  Additionally, once that association has been made in the witness’s head, it can often be hard to break.  The most famous case may be that of Jennifer Thompson and Ronald Cotton. Thompson was a victim of a vicious rape in which she got, what she believed, was a clear look at her attacker.  Thompson identified Cotton as her rapist in a photo lineup, live lineup, and in-court in front of a jury.  All the while, Cotton maintained his innocence while he was sentenced to life in prison.  Cotton got the trial reopened when he heard another inmate bragging about “Cotton doing some of his time.”[9]  Cotton was able to bring in the other inmate and present his case for a second time.  Thompson identified Cotton as her rapist and he was once again sentenced to life in prison.  It took eleven years for Ronald Cotton to be exonerated by DNA evidence.  Cotton’s only resemblance to the actual rapist was that they were both black men.[10]  It is important that practitioners and academia alike keep studying, observing, and writing about eyewitness procedures to avoid situations like this.  Prince George’s County is taking the proper steps to ensure that innocent men stay out of prison.

Calen Weiss
Articles Editor, Criminal Law Practitioner 

Image by Dickelbers (Own work), via Wikimedia Commons.

[1] 409 U.S. 188 (1972).
[2] 432 U.S. 98 (1977).
[3] See generally Stovall v. Denno, 388 U.S. 293 (finding that reliability is the linchpin in determining the admissibility of eyewitness identification).
[4] Biggers, 409 U.S. at 199-201.
[5] Brathwaite, 432 U.S. at 114.
[6] U.S. v. Ash, 431 U.S. 300, 321 (1973).
[7] Id.
[8] Jules Epstein, Irreparable Misidentifications and Reliability: Reassessing the Threshold for Admissibility of Eyewitness Identification58 Vill. L. Rev. 69, 97 n.180 (2013) (citing Nancy K. Steblay et. al., Seventy-Two Tests of the Sequential Lineup Superiority Effect: A Meta-Analysis and Policy Discussion, 17 Psychol. pub. Pol’y & L. 99, 100 (2011)). 
[9] Helen O’Neil, The Perfect WitnessWashington Post, Mar. 4, 2001, at F1.
[10] Jennifer Thompson and Ronald Cotton have since become great friends and advocates against the death penalty and unreliable eyewitness testimony.  It was only through Thompson’s inspiring courage and Cotton’s unbelievable sense of forgiveness that they have been able to turn a terrible situation into a noble cause.  They are two of the three authors of the New York Times’ Bestseller Picking Cotton.

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