Police Reforms to Prevent Wrongful Convictions September 2014 Voiceover: Beat Intro 00:01 This is the Beat, a podcast series that keeps you in the know about the latest community policing topics facing our nation. Nazmia Comrie 00:19 Hello and welcome. My name Nazmia Comrie and, on behalf of the COPS Office, I would like to introduce you to Chief William G. Brooks III, with the Norwood Police Department in Norwood, Massachusetts, and Major Mike Smathers with the Charlotte-Mecklenburg Police Department in Charlotte, North Carolina. Both Chief Brooks and Major Smathers are endorsing and implementing key police reforms to prevent wrongful convictions and have worked on the national level to encourage their colleagues to do the same. They are here to discuss the impacts of wrongful convictions on the policing community and ways in which to improve the percentage of wrongful convictions. Can you describe some of the impacts of wrongful convictions on the policing community? Major Mike Smathers 00:49 Most people are aware of the Duke lacrosse case that took place in North Carolina a few years ago. That was a seminal moment in our state. It wasn’t a conviction, but it was an arrest and a prosecution that was [limited] by flawed eyewitness identifications and flawed victim identifications. That was a tipping point in our state that really shattered the confidence in the simultaneous lineups that were being used throughout the state. Chief William G. Brooks III 01:18 This is Bill Brooks. I just think that these officers don’t experience this. Most people who are convicted are actually guilty of the crimes that they’ve been charged with. But every now and then, cases come along and we know there’s been over 300 DNA-based exonerations. I think that it has an effect, first of all, on the officers and the people involved in the arrest and prosecution that they have unfortunately sent someone to prison for a crime they did not commit. But beyond that, as Major Smathers just mentioned, I think it can erode the community’s confidence in the law enforcement agency involved and in the criminal justice system. Nazmia 01:54 Thank you. The IACP and other leading policing organizations support evidence-based eyewitness identification protocols and the recording of custodial interrogations. Both of these practices have been fully implemented in police agencies. Describe the evolution of your own thinking on these reforms. What led you to accept these as best practices and work to change your department’s policy? Mike 02:16 Well, we implemented the recording of interviews before we implemented the lineup and eyewitness identification changes. Honestly, we just continued to hear from jurors and from our prosecutors that it would enhance their confidence in the work that we were producing and we were testifying to if jurors and prosecutors could hear the interviews themselves. So we thought, why not. There is no compelling reason to not share what goes on in the interview room. That led to us implementing that. We’ve done—for well over 15 years we’ve been recording audio and video, all of our interviews, for— at least for the major crimes that we investigate, certainly the violent felonies that we investigate. Seeing that that did not bring about any negative results—in fact, it enhanced the prosecution and enhanced juror confidence in the work that we were doing—the eyewitness identification reforms were an easy sell within our department. People had seen what recordings could do. There was a fear of the unknown, fear that that would cause problems, fear that people wouldn’t understand the procedures and the tactics that detectives were using within an interview. And those were dispelled. We were able to explain the techniques and the styles that vary from detective to detective, and we got good results. And jurors were telling us as we were polling them after trials that it swayed them and enhanced and encouraged them to feel more comfortable in the work we we’re doing. It was just a plus for us all the way around. So when eyewitness identification came forward and we were proposing those changes as well, they were readily accepted within our department. William 03:52 This is Bill. On the issue of recording interviews: to be honest with you, I did not like the idea of it when it was first proposed. Like a lot of detectives, I had been through training with—on the so-called Reid method, which at the time taught officers to secure the general admission and then to record only the confession itself once the suspect had admitted his involvement in the offense that the detective was investigating. So I went into it skeptical. I thought that it would expose investigative procedures and interrogation techniques and that it might have a chilling effect on suspects. We were compelled to do it by a state Supreme Court decision that … jury instruction. We did not record custodial interviews. So we began doing it. Quite frankly, once we started doing it, I became a believer. Number one, we use a concealed camera and microphone. We tell the suspect being interviewed at the outset that everything is the room is recorded and we simply begin the interview. If the suspect objects to the recording, we explain why it’s in his best interests. If he still objects, then we turn the equipment off. But of course, we already have his refusal recorded without violating our state wiretap laws. The vast majority of our suspects don’t react when I tell them the room is recorded and they submit to a recorded interview. It has completely eliminated the need for detectives to testify in motions to suppress …. No longer does the detective get on the stand and try to recall what was said, try to recount for the judge the movements and words of the person being interviewed. Quite frankly, judges begin motions to suppress by simply asking, “Ok, has everybody seen the video? And counsel what’s your point?” And they swing right into points of law. Detectives really do interview in a respectful and efficient way. Jurors get to see that. Techniques of the detectives have really not leaked on to the streets like we feared they might, any more than they would by one bad guy talking to another bad guy. I had the chance to go back and we have been recording all custodial interviews now and interviews at the station of all suspects, whether they are in custody or not. We’ve been doing that for about 10 years and I would not go back, would not go back to the days when we did not record. With regard to the issue of eyewitness identification, there was a little resistance, especially to the issue of blind administration. When we heard that we were going to be asked to administer arrays, I learned that we were going to be asked of all officers administer arrays, photo arrays, who did not know who the suspect was, I was a little insulted at the implication and I thought it might disrupt the rapport that detectives establish with their witnesses and victims. When I went to training—and I think that’s the key here. I went to training; I understood that intentional and unintentional cues can be leaked over to a witness reviewing a photo array. Showing photo arrays blind would allow us to really cut off that path of defense by defense counsel. I became convinced that this was probably the way to go. Really what did it for me on the issue of eyewitness identification was that I attended excellent training. Then I began to read more about it and then we re-wrote our department’s policy and we began doing extensive training in it. Again, this is an area where I would not go back to the old ways. Showing the photographs sequentially was a very easy transition as far as blind administration goes. Most of our arrays are shown by uniformed officers at request of detectives. The detective is right in the room with the witness and reads the instructions to the witness where the photos are in play. Just before the photos are to be shown, the detective leaves the room and the uniformed officer displays them one at a time. He makes a statement of confidence right away as soon as the identification is made. We use scripted instructions not only for photo arrays and lineups but for show ups as well. Our officers carry short cards in their pockets. For us it was been a seamless transition. Again, this is something we’ve been doing for 10 years and I would not go back to the old way. I think what we do now is research based and more professional. Nazmia 07:52 How did you both obtain buy-in from your officers on evidence-based eyewitness identification protocols? Mike 07:58 Well, ultimately, in North Carolina, there was a statute passed in 2008 that mandated it. Prior to that, we had been transitioning for some time to the sequential lineups and had had success but it wasn’t a policy for us. So the 2008 statute, which was driven by some cases of misidentification, driven by simultaneous lineups and other jurisdictions within our state, made it mandatory for us and we just used that statute to push us over to a policy decision to mandate it, and then we were just very vigorous in our training and, as Bill mentioned previously, just good explanations to try and allay the fears that were inherently in detectives’ minds, that clearance rates would drop, the hit rate on the lineup procedures would drop. None of that had been really studied; at least we were not aware of it. When we implemented it, there was some initial resistance. Honestly, cops just don’t like change. There was initial hesitancy to it. But they took to it from a positive perspective. Again, we began to study it internally and we opened our department up to academic groups coming in to scientifically study our results and we were quickly able to determine and have it verified that our clearance rate went up, actually. Our hit rate went up slightly and there were just no negatives. And then the public trust and the confidence with prosecutors and judges, as Bill alluded to, related to suppressions, et cetera, were increased substantially. We’ve not lost a suppression based on eyewitness identification with these reforms since we implemented them in 2008. Now honestly, they just don’t even try. We’re very standardized. We follow the same protocols as Bill mentioned as far as standardized instructions, standardized confidence statements, and the manner in which we do them. So it took about, I don’t know, probably six to eight months to convert and for people to see that the negatives that they were perceiving weren’t going to take place. After that, we had a pretty rapid buy-in throughout the whole department. William 10:04 I just have to say, from the standpoint of buy-in, and again, it’s essentially what Mike talked about, I cannot emphasize enough the importance of training police officers. You can’t just hand them statute or a policy and say we’re going to change the way you do this. It only works, or it works effectively, when you train police officers in the reasoning behind it and then you give them effective protocols to use, and we did that. We trained officers in the new procedures, we explained to them what was driving it and why, they fully embraced it, and the transition really was seamless. Mike 10:34 Bill mentioned earlier, no officer wants to be attached to a case with an incorrect conviction, a bad conviction, no matter what the reason is. That resonates with officers and detectives when they hear about it and see about and will talk about it. No one wants to have their name associated with case law or with an overturned conviction, no matter how well intentioned the work was. At the end of the day, that helps sell it, it helps resonate with people that they don’t want to be a part of that. These reforms have a purpose and, as Bill said, there is a rationale behind it. It’s not some policy decision by a chief. There is science behind it and the training conveys that. I just think the buy-in was pretty easy for us. Nazmia 11:16 Thank you. So what were some of your biggest concerns around implementation and/or the policies themselves? For instance, many smaller departments expressed concerns about lacking the resources to implement policy such as blind administration or having sufficient photos to compose a proper photo array. How would you respond to these concerns? Mike 11:35 The biggest fear that we experienced was blind administration, because we were going to have to not only change the literal way we did the lineup, in the sense of and how it was formulated and delivered, but then you had to have an independent person that did not have an idea who the suspect was. My department has a substantial size to it and that was a little easier adjustment for us. The investigative supervisors had to put some forethought into it and not allow the whole unit to be engaged in an investigation or to very proactively think about who would be the blind administrators if the whole unit is involved. So we just took a little bit of forethought on the supervision level just to plan ahead. We’re going to be showing lineups in this case, who do I have is free or that is completely independent of that to do that. And then you very deliberately maintain that independence. So it does take some effort. It’s certainly a change in the way they’re used to doing business, especially with a large volume of cases, which is what we have. We show dozens and dozens of lineups a week in the course of our investigations. So just having the supervisors rethink it, you just have to be deliberate in keeping somebody independent. Sometimes that is just, we'll just exclude them from email or we'll just exclude them from the case updates that are coming out related to developing investigation. That was the hardest, and I can see that being a larger challenge for smaller agencies. I think the folder shuffle method does allow that to take place. If you’ve got enough pictures to show a lineup in any capacity, you’ve got enough to show them sequentially versus simultaneously. There can be some technology issues with the different systems that are in place. For us, blind administration was the biggest thing people were concerned about. We’re all busy and the volume was high. We were just fearful that it would slow us down, keep us from being able to effectively … have victims and witnesses ID the people that were committing these offenses and just slow down our process. We had a little bit of slowness at first, as with anything new, but we worked through that within weeks. I can honestly tell you our volume didn’t change and our capacity didn’t change once we got used to it. William 13:44 So on the issue of implementation let me start with recording interviews. We have a state law that prohibits the secretive recording of another person except for the wiretap warrants and so forth. So we tried to figure out exactly how we would implement the recording of interviews in such a way so that it would not have a chilling effect on the person we were interviewing and at the same time respective of the state wiretap law. The second issue really had to do with the chilling effect of having a camera on a tripod sitting in a room. So the first thing we did was went to a—really, an invisible camera, kind of a so-called shoplifting-looking camera, just a bubble camera in the corner of the room, and a hidden mic. It’s not a secret that we’re recording it, but it’s not in the suspect’s face. And the way we addressed the wiretap issue was that we announce as soon as we enter the room that everything in the room is recorded, and then we just begin to interview. That way, it’s not a secret recording, the person knows they are being interviewed, and we just proceed with it. Most people don’t object. Those few who do, we have their objection already recorded. The issue of eyewitness identification, and Mike alluded to this, is the logistics around blind administration, that you need an officer who does not know who the suspect is to show your photo array. In a big department like Mike’s, where you might be using primarily detectives to show photo arrays, you do have to keep people separated out. You have to keep them separated. In my department, we’ve got half a dozen detectives. We use uniformed patrol officers. In fact, not too long ago, I was in the office, and I heard an announcement over the department intercom system, and it was a detective who just said any officer available to show a photo array, call extension 192. And he didn’t repeat it. So I know that an officer in building picked up the intercom and said, "What do you need?" If we bring an officer in off the street, it only takes about 20 minutes. The detective actually reads the instructions and then leaves the room. The uniformed officer is left behind to administer the array to show the photos and take a confidence statement. It really has been seamless. Further on the issue of blind administration, I hear some departments say, well, we’re too large to do it and some say we’re too small to do it. I really think it can be done in department s of any size, from the very largest departments to the smallest. You can find a second person who does not know who the suspect is to show the array. If you cannot, there is an alternative, a so-called blinded procedure called folder shuffle. Essentially what you do is put photographs in separate folders and shuffle them up then hand them to the witness. As the witness opens each folder one at a time, the cover of the file folder is blocking your view and you cannot see who they're looking at. It’s an accepted procedure, an accepted blinded procedure, where the officer—who does know who the suspect is— nevertheless cannot tell when the witness is looking at that suspect. I think these procedures can be blinded, and they can be blinded fairly easily. Nazmia 16:46 So finally, what are the key messages you want to convey to other leaders in the community about these issues? Mike 16:51 Well for me, that they’re worth it. They're worth the policy changes; they're worth the investment in training, because I certainly don’t take that lightly. It’s very expensive to implement new programs and to take your officers and train them, no matter how you do it or no matter the size of your agency. It obviously is an investment to commit to blind administration and to commit to sequential lineups, be that equipment, be that even the recording we talked about. So depending on the size and resources of the department, there’s commitments: time, effort, and quite often money. But at the end of the day, I can tell you, unequivocally, in Charlotte we have reaped benefits. Not just the status quo, so nothing bad happened, but we have increased clearance rates. We've increased our hit rates. Those are good things. Those are internal things that cops hook on and enjoy. And as administrators, I’m happy about. At the end of the day, I’ve got a DA’s office that has greater confidence in our cases. We’ve had judges comment from the bench during trials related to these methods, and afterwards have commented to us to just indicate a level of confidence in the judiciary in my district. You can’t buy that. And it enhances the public trust. I think jurors have commented to us that they had concerns. Often a lot of our juries and our citizens have different impressions bases on all the dramas and television and media they see related to good police work. Often much of what's on television is not representative of good police work. So the confidence that those folks have, we’re able to explain why we do what we do and we are able to defend it. I just don’t think you can put a price on that. It just gives us another layer of protection to not be associated with one of those wrongful convictions, to just have greater confidence. We're never going to be perfect, but this is just one more step that allows us to help make sure we’re doing it right. As I’ve heard so much from Innocence Project folks, that the right person is convicted for that crime is what we all want. None of us want to see a person wrongfully convicted. To me, the confidence is the selling point; the great results are the selling point, and just the fact that we are doing the very best we can do, I think it is applicable to agencies of all size between the folder shuffle method, or just the method—the direct sequential with a blind administrator. Is it a little harder? It can be. But now it’s part of our culture. So I would say, you talk to any of my detectives and they say it’s not harder, it’s just the way they are used to doing business. It’s just, to me, the appropriate evolution of how we’re doing our work to give confidence. If we don’t have our community’s confidence, at the end of the day, it doesn’t matter what we think of our own work, we’re behind. It just really resonated within our community. It resonates with me and I've just seen the work of it and that’s why I’m so passionate for it. William 19:42 I just think the key message for police everywhere is that they should undertake these reforms, make the changes, bring their people in, and implement them through policy. We know that two of the leading causes of wrongful convictions are mistakes by an eyewitness and false confessions. Although wrongful convictions can still occur, there are things the police can do to prevent them. Recording interviews is one. And using reform-based, research-based witness identification procedures is another. There are all sorts of different factors behind wrongful convictions. When I look at them, I kind of think of them in two different categories. There’s one category where you listen to the story, you can see where the police made mistakes all along the way. And then there’s the other type of wrongful conviction where you listen to the story, the police did everything that they could. It’s just that an error was made. If a wrongful conviction ever comes to your department, you really want to make sure it’s that second type. You want to be able to say, you know, we used nothing but … research- based procedures in the way we interact with our eyewitnesses. We’ve done everything we can through training and policy to decrease the likelihood that an eyewitnesse in one of our cases will make an error. These procedures do take a little bit of training, a little bit of explaining to the officers of the department, but in the end, they are well worthwhile. I think that they instill in our departments a bit of confidence by our communities and by the judiciary and cast the police in a very positive light. There really is no downside to a police administrator or police chief or sheriff being able to get up and announce to his community that from this day forward, our agency will use only science-based procedures in the way we interact with our eyewitnesses. We use recommended and supported by the U.S. Department of Justice and the Innocence Project and designed to prevent the arrest of innocent people. There’s really no downside in doing that. These are procedures and protocols are easy to implement and easy to train on. There’s plenty of material out there. I wish all departments would adopt them. Nazmia 21:44 Thank you both for you time and expertise today. Voiceover: Beat Exit 21:47 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 22:03 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.