In 1984, Jennifer Thompson was raped at knife point. Her description of the attacker was used to develop a composite. Police received a tip that Ronald Cotton, Jr. was the man in the drawing. Two days after the attack, Thompson viewed a photo lineup of six men.

She wanted to be positive. Although she quickly eliminated four of the men, she took 4 to 5 minutes trying to decide between two others. Then she picked up Cotton's photo.

THOMPSON: This is the man who did this.
POLICE: Are you sure?
THOMPSON: I'm positive.
POLICE: We thought that was the guy.

Later, after a live lineup in which Thompson chose Cotton again, she asked if she did okay. An officer said, "You did great, that was the guy you picked out in the photo lineup."

With this positive feedback, Thompson felt 100% positive of her identification by the time the case went to trial. Her strong, believable ID is what sent Cotton to prison for rape. It took 11 years before DNA exonerated him and led law enforcement to Bobby Poole, the actual rapist.

Since then, Thompson and Cotton have co-authored a book, PICKING COTTON. You can view the video Getting it Right: Eyewitness ID with both of them and the police chief who worked the case at the Innocence Project website.

Although Thompson had been told that her attacker might not be among the photographs, she felt compelled to do her part to take a rapist off the streets. She couldn't do it quickly despite research findings that the strongest memories are the easiest/quickest to retrieve (Economist.com). Thompson, a Caucasian, struggled to identify her Black attacker. Studies have shown that people have more difficulty distinguishing faces of people of other races (Salon.com). She studied two of the photos until she chose one as her attacker.

No one asked Thompson how certain she was of that first ID before proceeding. Instead, she was relieved to be told that she'd picked the "right" man. Police officers, family members, and even other witnesses can unconsciously shape a witness's memory and influence his/her level of certainty (Salon.com).

Research suggests that lineups should be double-blind and administered sequentially (See blog: Your Lying Eyes: How to Improve Police Lineups), neither of which were done in this case. Let's look into the roll that positive affirmations play on eyewitness testimony.

A study reported in Psychological Science, found that confirming feedback led witnesses to not only feel better about their identification/misidentification (the murderer's photo was not in the lineup), but it also distorted their memory of how confident they had been initially and how good of a look at the perpetrator they believed they'd gotten.

Of "the eyewitnesses given positive feedback - 50% rated their confidence at either a 6 or 7 on a 7-point scale." In addition 47% of those getting positive feedback thought the grainy security camera footage was clear (6 or 7 on the 7-point scale). In contrast, of those who got negative feedback, only 15% rated their confidence high, and none of them thought the poor footage was clear (PSYBLOG).

Witnesses should make a statement about their level of confidence in their own words. "The legal system should...collect the primary dependent measures (confidence information and other statements) from the eyewitnesses prior to debriefing them regarding the status of the identified person" (Psychology.iastate.edu).

Itiel Dror, cognitive neuroscientist with the University College of London, stated that psychological research has shown "time and time again no correlation between confidence and accuracy" (Salon.com) Yet, confidence sells an identification to juries.

Changes to police procedures have been slow in the US and in the UK (PSYBLOG). Law enforcement agencies are getting more pressure to adopt policies on eyewitness identifications which are supported by research (Officer.com). The following procedures, excerpted from Wisconsin's Model Policy and Procedure for Eyewitness Identification, were developed in an attempt to minimize eyewitness errors and secure court-admissible identifications.

1. Utilize non-suspect fillers chosen to minimize any suggestiveness that might point toward the suspect;
2. Utilize a 'double blind' procedure, in which the administrator is not in a position to unintentionally influence the witness's selection;
3. Give eyewitnesses an instruction that the real perpetrator may or may not be present and that the administrator does not know which person is the suspect;
4. Present the suspect and the fillers sequentially (one at a time) rather than simultaneioulsy (all at once). This discourages relative judgment and encourages absolute judgments of each person presented, because eyewitnesses are unable to see the subjects all at once and are unable to know when they have seen the last subject;
5. Assess eyewitness confidence immediately after identification;
6. Avoid multiple identification procedures in which the same witness views the same suspect more than once.

In addition to those practices, the Innocence Project also recommends that lineup procedures be videotaped. This protects innocent suspects and also documents legitimate police procedures. "Officers should also be prepared to articulate in court how the procedures they used ensure the greatest reliability of the eyewitness evidence gathered" (Officer.com).In the future, most lineups may be conducted on computers to further remove human influence.

Our judicial system may place too much weight on eyewitness testimony...especially when it runs counter to more tangible evidence. Even an honest eyewitness ID, like that of Jennifer Thompson, can be completely wrong. We must eliminate practices that we know can lead to miscarriages of justice.

Other Links:

• Dean, Jeremy, "Wrongful Conviction: 50% of Mistaken Eyewitnesses Certain after Positive Feedback," PSYBLOG, February 6, 2008.
• Economist, "Unusual Suspects: How to Make Witnesses More Reliable," The Economist, March 3, 2012.
• Russell, Sue, "Why Police Lineups Can't be Trusted," Salon.com, September 29, 2012.
• Van Brocklin, Val, "Defending Your Lineup in Court," Officer.com, July 18, 2011.
• Wells, Gary L, and Amy L. Bradfield, "Distortions in Eyewitnesses' Recollections: Can the Post-identification Feedback Effect be Moderated?" Psychological Science, 1999.

"He did it," the witness proclaims from the stand. Eyewitness testimony sways juries...but what if there is no other evidence against the accused? Should it hold enough weight to convict?

You have seen countless police lineups on TV shows and movies. The practice of bringing in one suspect along with four or five "fillers" and lining them up along a wall marked with heights is being questioned by research findings and defence lawyers. Everything about which persons/images are chosen for a lineup and how they are presented affects the likelihood of witnesses selecting the real culprit rather than identifying an innocent person.

In practice, police rarely bring in live people for a lineup. It is much more common for a photo lineup to be used. I remember pulling together 6-packs for some of my cases years ago. This was a term used to describe a single page showing the photos of six possible suspects at one time. Research now suggests that there are two big problems with the procedure I used: the method and the administrator.

Whether using live people or photographic images, there are two primary methods of presenting a group of possible suspects to a witness. They are simultaneous and sequential. The simultaneous method, as pictured in the silly photo above, shows all of the five or six possible suspects to the witness at one time. The problem: people tend to compare the faces to each other. Even if the perpetrator is not in the lineup, the witness is inclined to choose the closest match.

"While we like to think that our eyes won't mislead us, mistaken eyewitness identification accounts for more than 70% of wrongful convictions that are ultimately overturned by...more objective DNA evidence" (Time.com). 

The sequential lineup method, shows each suspect individually. The witness is forced to compare the person  to his/her memory, rather than to people next to them. According to David Harris of the University of Pittsburgh Law School, "Agencies should bring in suspects one at a time" (Minnesota.publicradio.org). However, he is not suggesting that the suspect should be the only person presented to the witness.

Maurice Caldwell spent 20 years in prison for murder based on eyewitness testimony. Of four witnesses, only one identified him, but that one identification persuaded the jury despite a lack of physical or forensic evidence. Caldwell was seen in the area after the crime was reported. Police brought him to the witness and they asked her if he was the man she had seen. The process confirmed in her mind that he was involved in the crime (CBSlocal.com).

According to a CBS affiliate in San Francisco, "Even without realizing it, an investigator can send nonverbal cues to the eyewitness." It may be a deep breath, the way they lean, or a facial expression. The one way to completely guard against this influence is to have an uninvolved officer administer a sequential lineup.

A police officer who does not know which image is the actual suspect cannot manipulate the witness's response. This is called a double-blind lineup. Dallas police have taken this to the extreme. They have a special unit that does only lineups. They are not involved in investigations and therefore will not influence the witnesses. They have specialized training and follow written procedures for each lineup that include showing photos sequentially (NYTimes.com).

It is imperative that a move toward double-blind, sequential lineups be made standard practice. For more details, you can watch a segment of Rock Center called "Photo ID: Are Police Lineups Reliable?" at this link.

When Caldwell's case was reopened, another man came forward and confessed to the murder. Caldwell is now arguing that his civil rights were violated in a lawsuit against the city of San Francisco. It is unconscionable that a murder case had even gone to trial with so little evidence.

Next week: More of the latest research findings on eyewitness identifications.


Sources:

• CBS 5, "Man Wrongly Convicted In SF Murder Questions Police Lineups," Sanfrancisco.cbslocal.com, 5-7-2012.
• Goode, Erica and John Schwartz, "Police Lineups Start to Face Fact: Eyes Can Lie," NYTimes.com, 8-28-2011.
• Guy, Shoshana, "Police Photo Lineups Challenged after Series of Wrongful Convictions," Rock Center, 4-4-2012.
• Szalavitz, Maria, "How to Improve Police Lineups and ID the Right Culprit," Time.com, 9-4-2012.
• Weber, Tom, "Do We Do Police Lineups Correctly?" Minnesota.publicradio.org, 11-8-2012.