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Identification Where legal assumptions conflict with empirical evidence Another Delicate Balance • Eye-witnesses are essential to obtain convictions in many high profile cases • Goal – prevent inaccurate eye-witness testimony in “stranger cases” • SCOTUS tries to provide protection to innocent suspects from faulty eye-witness testimony without unduly interfering with the jury’s fact-finding role Current Standard • Over the course of many years and decisions the SCOTUS has ruled that identification evidence gets in unless there is a “very substantial likelihood of irreparable misidentification” • Lots of confidence in the ability of juries to figure things out. Out of court Identifications • Before witnesses id defendants in court, they do so during the investigation • There are two types of pretrial identification procedures: 1) Lineups – picking the suspect out of a group (live lineup) or a number of photos (a photo array) 2) Show-ups – witnesses pick out suspect standing alone, live or through photos The SCOTUS weighs in • • • • For a long time the SCOTUS kept silent Wade-Gilbert-Stovall (1967) changed this Wade - no line-up without attorney present Gilbert – line-up ids w/out attorney present can’t get in evidence • Stovall – due process applies to pretrial showups before trial A difficult burden • To exclude an identification the suspect must establish: 1) that the procedure was unnecessarily suggestive, and 2) the procedure also created a very substantial possibility of misidentification • both need be proven by the preponderance of the evidence With a burden like that …. • The whole admissibility question turns on – reliability – was the wrong person fingered? • In practice, courts rarely exclude eye witness identifications • Juries are free to weigh the identification as they see fit The Five Factors In assessing the witnesses’s id’s reliability, 5 factors are considered: 1) chances to view defendant during crime, 2) witnesses’ degree of attention 3) witnesses’ accuracy of description 4) witnesses’ certainty during procedure, and 5) length of time between id and crime Manson v Brathwaite • Undercover cop buys heroin from an unidentified “colored man” • Two days later he identifies Brathwaite after being furnished one photo • No line-up, of any type • On appeal, state concedes that this scenario was both suggestive and unnecessary • Defense argued such ids be always excluded Manson cont. • SCOTUS rules that a per se rule is inappropriate • Instead the totality of the circumstances should be assessed • Rules that the per se rule wrongly keeps relevant evidence from the jury without exception • Dissent – procedure was both suggestive and unreliable “Accidental Show-ups” • What happens when witnesses make ids outside formal line-ups or show-ups? • If law enforcement didn’t have anything to do with the id, then due process doesn’t apply – no state action. • However, in some cases the id takes place inadvertently, but while the suspect is under the control of police, such as when the witness sees the suspect in custody at the station or crthse. Court’s forgiving view • Even though law enforcement is in control of the situation, and could limit such “accidents”, courts are very reluctant to throw them out. • Perry (2012) – witness sees someone break into a car, later she points him out, standing next to an investigating officer • A month later, she can’t id him in photo line-up • SCOTUS ruled jury can figure it all out since they were given a special instruction – let it in Startling Empirical Evidence • Psychologists have explored the strengths and weaknesses of human perception & memory • Much, maybe all, of what we might assume about our memory in general and ability to reliably identify people in the course of crimes is wrong • People who witness the same event recall it differently, no one sees it all, and many, despite great confidence in their id, are wrong Bottom line? • Many eye witnesses make big mistakes recalling the events and iding who was there • Even in ideal settings mistakes are made • In-station line-ups and show-ups aren’t ideal settings so reliability is questionable • Mistaken ids of strangers “is the single greatest cause of the conviction of the innocent” – 75% of DNA exonerations! Why so inaccurate? • Memory involves three phases: 1) acquisition – the initial perception of the event as it is encoded by the brain 2) retention – the process of storing information before recall 3) retrieval – pulling out the memory when needed • Things can go wrong in any of the three Acquisition • We don’t remember things like a photo or movie records info • Our memories are shaped by our expectations and unique cognitive processes • Also, we can’t attend to everything during an event, what we attend to shapes our memory Eyewitness accuracy depends on: 1) how long the witness observes the stranger – but most crimes take only seconds, and witnesses mistake even basic items 2) the presence or absence of distractions – things like weapons cause witnesses to make crucial errors 3) witnesses’ focus – bad lighting makes ids very difficult More acquisition hazards 4) amount of stress on witness during event – stress greatly impairs accuracy even in cases of rape and robbery with good chances to observe 5) race of witness and stranger – attempts to id strangers of another race are especially sketchy and lots of familiarity with the other race doesn’t help Retention concerns • Memories fade rapidly but the rate of decay slows as time goes on • Strangely, as the memory fades, our confidence in the memory increases • Worse yet, juries and judges are very impressed by this specious confidence • New items can be added to the memory – it can change as well as decay Retrieval • Every time we recall a memory, it can change based upon what’s happened since retention • Eyewitness recognition – witnesses asked if shown people were involved in crime • Errors can occur through either: a) errors of omission – failure to recall vital details or recognize the perpetrator, or b) errors of commission – falsely iding an innocent person The Power of Suggestion • Besides the previous memory problems, we are also quite vulnerable to suggestion • Especially troublesome during both retention and retrieval • How third parties describe what happened influences how we remember, adding things Defense attempts to combat faulty ids • Defense futilely contest ids on several grounds: 1) show-ups instead of line-ups 2) suspect too distinctive in line-up 3) witness not told perp might not be in line-up 4) witness primed by being shown photo of suspect before line-up 5) uncertain witness told they picked “right guy” 6) two lineups w/ only suspect in both It doesn’t matter • The Courts use the reliability test of eyewitness evidence from Manson for ids • This despite the fact that research shows that the underlying reliability is often not so good • And the 75% figure for the exonerated, is just the tip of the iceberg • If there’s no DNA to test the id, it ill go unchallenged 30 years of research reveals … • Big problems with eyewitness testimony • J Marshall had predicted this in Manson • Experiments provide control – the ability to monitor the setting to eliminate other factors • Experiments are criticized because the witness doesn’t experience similar stress, but that makes the experiment more impressive Psychologists diss Self-Reports • Eyewitness retrospective self-reports are viewed with much skepticism by the psychologists who study memory • Memories can “change” due to 1) the desire to look good – social desirability 2) the need to appear consistent, and 3) reinterpreting the past due to new events Specifics • Empirical research provides valuable insights as to the reliability of various id techniques • Reliability suffers due to: 1) line-up composition a) only one suspect in each b) “fillers” shouldn’t vary widely from description, should be of same race, skin color, age, height c) juries can’t look past bad ids More problems • Pre-lineup instructions a) witnesses feel pressure to id the perp, to pick someone b) witnesses don’t consider that the perp might not be there c) very vulnerable to suggestion d) need might-or-might-not-be-present instruction – ok to say you don’t see the perp Administrator’s behavior • Cues from the line-ups administrator can exert heavy influence on witness a) if witness picks a filler, admin says, “make sure you look at all the suspects” b) admin approves pick of suspect c) filler picked and admin shakes head, frowns d) suspect picked, admin smiles and nods • No intention to mislead, unconscious actions Problems with Show-ups • By their very nature, show-ups are less reliable since they only involve one person • But ruled admissible, especially when: 1) view suspect accidentally in courthouse 2) had to bring witness to hospital (emergency) 3) view suspects in course of pursuit or arrest Looking at the Manson factors • Lots of work re three • Witness’s opportunity to view suspect 1) distance is key – too far away and we can’t make out faces 2) length of time isn’t as crucial as stress on witness and whether view was obstructed 3) if admin approves id, witnesses exaggerate the quality of their view Another Manson factor - Confidence • Very important – charges won’t likely be brought if the witness is not confident of id • Can be heavily influenced by suggestion • If witness receives approval, they are more confident, even if wrong • Certainty can grow over time • Increase in confidence can effect testimony in many ways How do we fix this? • Both psychologists and defense attorneys have tired to get id procedures changed. • Recommendations include: 1) excluding all suggestive procedures 2) allowing expert testimony re the limitations of eye witness testimony 3) requiring corroboration – especially for cross-racial ids As for legislation … • Legislatures and law enforcement agencies have made changes 1) more appropriate fillers 2) use a double blind – admin doesn’t know who the suspect is 3) use might-or-might-not- be instruction 4) present suspect and fillers sequentially 5) test confidence immediately., and 6) avoid multiple views of suspect State Court measures • • • • Some court systems have taken action Utah has recognized the problem Uses a cautionary instruction to explain Requires expert witnesses to explain the limits of human perception and memory and how that influences eyewitness testimony Forensic Science and IDs • Forensics deal with the use of scientific methods and techniques to investigate criminal activity • While forensics are used to understand anything from handwriting samples to computers, we’ll look at DNA and when forensics are misused. DNA as identification • Do convicted criminals have a constitutional right to review DNA evidence? • Could well decide between guilt and innocence. • What could be wrong with releasing the innocent from prison? • Is it a due process right? Osborne (2009) • SCOTUS says no (5-4) to a constitutional due process right to forensic evidence. • Majority – it’s up to the legislature to figure out how to balance certainty in convictions v the need to protect the innocent from wrongful convictions. • Since the defendant has been convicted, the presumption of innocence no longer attaches, nor does the “proof beyond a reasonable doubt” Osborne cont. • Also, defendant must first fully pursue any remedies allowed under state law. • No “freestanding” right to DNA testing. • And, in this case, the defendant declined the chance to check DNA evidence at trial. • Dissent – since the test can conclusively establish guilt or innocence, why not use it? When forensics fail. • Forensics can go wrong either by accident, or through fraud. But how? • 1) Exclusivity – only one lab tests, so whatever it says, even if based on sloppy work, goes. • 2) Bias – most labs are set up and funded by law enforcement, can’t bite the hand that … • 3) Info sharing – examiners are often privy to info that can increase their bias. Forensic flaws explained • 4) uneven playing field – state has access to all sorts of forensic experts to perform and interpret data, defense has little, if any. • 5) good enough for government work – government employees are not motivated enough to work against the interests of those that pay them. • 60% of bad verdicts rested on flawed forensics. Are forensic reports hearsay? • In many cases, forensic evidence gets in without any testimony – ipse dixit – through a certificate. • Establishes both chain of command and the underlying ‘conclusion” pointing to defendant’s guilt. • Do defendant’s get the right to cross examine these findings? Melendez-Diaz (2009) • Defendant arrested for dealing cocaine • At trial the state puts seized powder into evidence based upon a certificate • Defendant demanded the right to cross examine the analyst who made the certificate • Denied at trial, conviction followed. • Holding – certificates are testimonial statements and thus subject to cross re confrontation clause of 6th Amendment.