Eyewitness Misidentification: How it Happens and the Impact on the Innocent September 2014 Voiceover: Beat Intro 00:03 This is the Beat, a podcast series that keeps you in the know about the latest community policing topics facing our nation. Dr. Debra Rachel McCullough 00:12 Hello and welcome. My name is Dr. Debra Rachel McCullough and, on behalf of the COPS Office, I would like to introduce you to the topic of Eyewitness Misidentification: How it happens and the impact on the innocent. This podcast will be a two-part podcast. The first will explore a DNA exoneration case that was based upon the misidentification of Marvin Anderson. The second part will be with Dr. Jennifer Dysart focusing on practical information for law enforcement. Dr. Jennifer Dysart is an associate professor of psychology at John Jay College of Criminal Justice in New York City and has been conducting research on eyewitness identification for 15 years. Her research examines how police identification procedures can lead to the mistaken identification of innocent people and how the implementation of safeguards may reduce these errors. Let’s talk first with Marvin Anderson. Hello, Marvin, and thank you so much for speaking with us today. Marvin Anderson 01:21 Hello, how are you doing? Debra 01:22 Could you tell us a little bit about your case, what you were convicted of, and how many years you spent behind bars for a crime you did not commit? Marvin 01:31 In 1982, I was sent to trial for two counts of rape, sodomy, robbery, and abduction. I was sentenced in March for a total of 210 years. I spent 15 years incarcerated and 5 years on parole and a sex offender program. Debra 01:48 And what impact has that wrongful conviction had on your life and your family? Marvin 01:55 A huge impact. That’s 20 years of my life that was actually taken away from me. That’s 20 years I can no longer retrieve or get back or begin to get back. Once I came home, I kind of picked up and just tried to move forward with my life. But I had given up on trying to prove my innocence. Until that happened, there were certain criteria I had to live by. I couldn’t be around my family that had younger kids because I was a sex offender. As far as my family, there were things we just couldn’t do as a family because of my crime. Debra 02:30 Marvin, what do you think lead to the misidentification of your case? Marvin 02:36 In my case, it was very unique, because the victim was shown several sets of mug shots. In that array of mug shots that she was shown, the law officers showed a photo ID from my job, which was a color ID. Each time they showed her the mug shot, my ID was in each different set. The mug shots they showed her, all were in black and white with the exception of my one ID, which was in color. Each time you keep seeing different mug shots, but this one particular color ID or mug shot keeps appearing, it gives vision in your mind that why do I keep seeing this same face that’s sticking out and in a sense, it gave her the impression that there is a reason for this one picture keeps showing up. And that’s what led to the misidentification of me. Debra 03:33 Is there anything that law enforcement could have done differently to prevent this from happening in your case? Marvin 03:39 There were a lot of things that law enforcement could have done to change what happened in my case. One, they got stuck on what we call nowadays tunnel vision. They mainly focused their attention and the case surrounding just on me when there was another suspect that was involved and actually, he was the real perpetrator of my case. They never focused on him, even with all the information that they accumulated, and my family and attorney … did this crime. They just focused their attention directly on me. Debra 04:13 How do you feel about law enforcement now? Marvin 04:16 I’m asked that question quite often. I believe in our laws and our justice system 100 percent. We need our laws. We need rules and regulations. However, I do have somewhat of a problem because it’s the people that enforce these rules and regulations that we are supposed to trust and have faith in that are not always honest and trustworthy. We are human and we do mistakes. But there are law enforcement out there that does not work and operate that way. I believe in the laws and rules and regulations that we have for society as a whole 100 percent. I just don’t trust them … that enforce the law. Debra 04:55 Thank you so much, Marvin, for sharing your experience with us. I’d like to now turn to Dr. Dysart. Doctor, what are some of the factors that can lead to misidentifications? Dr. Jennifer Dysart 05:08 Researchers have been examining eyewitness misidentifications really for 35 years now. What we understand is that eyewitnesses make mistakes for two main reasons, two categories. First, they make mistakes because of things that just happened at the crime scene, things that are related to the witness: did they get a good view, were there multiple perpetrators, were they tired or intoxicated at the time of the event. The second group of categories or reasons why witnesses make mistakes are the procedures that law enforcement use to collect the evidence from the eyewitness: what the questions are, did they ask them during the interview, how they go about choosing the photographs to put into the photo array, what questions do they ask after identification. We understand that all of those influence an eyewitness. Debra 06:01 What can be done within the criminal justice system, then, to enable more reliable and accurate identifications? Jennifer 06:09 There are a series of recommendations or reforms that eyewitness researchers have come, through decades of research, to understand will reduce the likelihood of a misidentification. The first is, how do law enforcement choose the photographs to put into the lineup or photo array that they are going to show to an eyewitness. So the selection of the fillers or foils in the procedure is extremely important. We recommend that the law enforcement officer doing this uses the witness’s description in order to pick out the fillers and not take a photograph of the suspect and match photographs to the suspect. The second is that witnesses should be warned prior to viewing the photo array that the actual perpetrator may or may not be shown. In addition, other warnings are recommended, such as individuals may change in appearance slightly from photographs in real life, so you might expect changes in hairstyles, beards, those types of things. In addition, witnesses should be told essentially not to worry that if they don’t make identification, that their case will be over. So not to have any pressure of the witness to make a selection during the identification procedure. The third reform is double blind administration or blind administration. That is where the officer who’s conducting the identification procedure doesn’t know who the suspect is in that identification procedure. This ensures that there is no hint to the eyewitness of who the suspect might be, therefore increasing the reliability of the identification. And fourth, we recommend that instead of showing all of the photos or images at the same time, in your typical six-packs or throwdown, that instead the individuals in the photo array or in the lineup are presented one person at a time in sequence which is referred to as a sequential identification procedure. Debra 08:12 How will the reforms you’re promoting impact the number of correct identifications that are made? Jennifer 08:20 This is a great question that I’m asked when I do training with colleagues across the country because, of course, law enforcement wants to ensure that, when they have the right person who committed the crime in the procedure, that the witness is still able to make identification, a positive identification. The answer is a little complicated. First, in essence, it’s important to remember that the criminal justice system needs to rely on reliable witnesses that have strong memories of the perpetrator. So if an eyewitness has a strong memory, a very good look at the person, it shouldn’t matter whether or not the images in the photo array are presented one at a time or all at the same time. It shouldn’t matter if the identification of the witness is informed that the actual perpetrator may or may not be there. When the witness recognizes the person who committed the crime, they will still pick that person. Where it becomes complicated is when witnesses don’t have strong memories of the actual perpetrator. And these various recommendations have been shown to reduce choosing and reduce guessing in eyewitness identification studies. So in the end, if you’re going to reduce guessing, every once in a while, when a witness is guessing the suspect, it would appear that it was a reduction in correct identifications. But at the end of the day, witnesses with a clear, strong memory should not be affected by any of these recommendations whatsoever. Debra 09:52 Do these proposed changes to police practice offer any protections to law enforcement? Jennifer 09:59 Absolutely. In particular, the recommendation of double blind administration, where, again, the officer who’s conducting the procedure is not aware of who the suspect is. It protects the officers involved from any accusations that they influenced the witness in their identification, that they perhaps hinted who the suspect is to the witness encouraging identification. It completely absolves them from any accusation of wrongdoing in those cases. And, of course, if the entire procedure is videotaped or audio taped, that of course would assist with protecting law enforcement as well. Debra 10:38 Thank you, Dr. Dysart and Marvin. You have both been so incredibly helpful for us who want to know more abut this issue of misidentification and what we can do within the system to preventing it from happening. I want to thank you again for your time and your expertise and sharing your experience. Marvin 11:01 Thank you. Jennifer 11:02 Thank you. Voiceover: Beat Exit 11:03 The Beat was brought to you by the United States Department of Justice, COPS Office. The COPS Office helps to keep our nation’s communities safe by giving grants to law enforcement agencies, developing community policing publications, developing partnerships, and solving problems. Voiceover: Disclaimer 11:19 The opinions contained herein are those of the authors and do not necessarily represent the official position or polices of the U.S. Department of Justice. References to specific agencies, companies, products, or services should not be considered an endorsement by the authors or the U.S. Department of Justice. Rather, the references are illustrations to supplement discussion of the issues.