- Read the following article from the Florida Bar News. Suppose you were in a lineup and wrongly identified by the victim. You were detained as you walked about a block from where the crime occurred. What remedies would you have as the wrongfully identified person?
The Florida Bar News December 15, 2010 Innocence Commission explores unreliable eyewitnesses By Jan Pudlow Senior Editor Eyewitnesses don't always get it right. Just ask Jamie Bain, Orlando Boquete, Larry Bostic, Alan Crotzer, Cody Davis, Wilton Dedge, Luis Diaz, Bill Dillon, and Frank Lee Smith. They served a total of 180 years in Florida prisons for crimes they did not commit. Eyewitness misidentification was a contributing cause in all of their wrongful convictions. Eventually, DNA evidence came to the rescue to exonerate them. When the Florida Innocence Commission, appointed by the Florida Supreme Court, met November 22 in Tampa, members got an earful about how unreliable eyewitness identification can be, the psychological reasons why witnesses seem so certain even when they're wrong, and reforms that other states have taken in the way law enforcement conducts photo or live lineups. At the end of the seven-hour meeting, some commissioners were inspired to take action, with suggestions to draft a new statute, create a new court rule, craft a motion to suppress eyewitness identification, and urge all law enforcement agencies to have written protocols in place, instead of only the current 37 out of 230 agencies in Florida. After much discussion, 18th Circuit Judge Preston Silvernail commented that as a result of information-gathering, the commission formally recognizes that there is a problem of stranger/witness misidentification leading to wrongful incarcerations. incarcerations. Judge Silvernail moved to address available remedies at future meetings, which was passed by a unanimous vote. Commissioners spent more than two hours listening to eyewitness identification expert Gary L. Wells, an Iowa State University psychology professor and director of social science for the American Judicature Society's Institute of Forensic Science and Public Policy. "I've been studying this longer than anyone on the planet - for 35 years. Well before forensic DNA came along, we were blowing the whistle," Wells said. "In every one of the DNA exoneration cases, the victim is positive, and yet they were wrong. How does that happen?" Course ChatA glimpse into how it happens was demonstrated when Wells showed a film clip of one of his experiments. It showed an office, and through the window a guy is visible for a few seconds on the roof holding a supposed bomb. Next the commissioners were shown a lineup of six men, and were asked to pick out the bomb- planting man \"Who thinks it's No. 6?\" Wells asked. \"Anyone who raised their hand made a false statement, because he's not there.\" While laughter rippled through the conference room, the very serious point was made about what Wells called the \"relative judgment process.\" Witnesses look at a lineup, pick a person who looks most like the perpetrator compared to others in the lineup, and assumes that must be him. \"It's critical to have rules that warn the witness that the actual perpetrator might not be in the lineup.\" Mistaken identification is double trouble for the criminal justice system. \"Everybody focuses on the person who did not commit the crime. And it also means the actual perpetrator gets away with the crime,\" Wells said. Making the problem worse is that less than 5 percent of cases have the possibility of DNA evidence to come to the rescue of mistaken eyewitness identification, Wells said. \"The point is if you are misidentified, there is likely nothing to trump that competent witness. You are probably going to go down for it.\" Wells' career has focused on the psychological process that explains a lot of mistakes eyewitnesses make. \"My emphasis is: How do we make eyewitnesses better?\" Like blood and fingerprint physical trace evidence left behind at a crime scene, eyewitness evidence can be contaminated and misinterpreted, too. \"Eyewitness memory traces can be delicate. You have to be concerned how the evidence is collected," Wells said. The most important reform, he said, is to use a double-blind procedure, where someone other than the case investigator administers the lineup. The lineup administrator should not know who the suspect is in the lineup, to prevent verbal and nonverbal influences of the witness. \"The need for double-blind testing in no sense presumes there's intentional influence by the tester,\" Wells said. Course Chat \"Put yourself in the position of the detective. It's not intentional, but you think Joe committed the crime. You get a photo of Joe and put it in the position of 3. One, 2, 4, 5, and 6 are just fillers. You show the photos to the witness. The witness says No. 2. What is the natural reaction to that? 'Now take your time. Be careful. Did you look at all of them?' \"In effect, whether intended or not, it's 'Get the hell off No. 2. That's not the guy.' Then if she says, 'No. 3', the detective says, 'Tell me about No. 3.'\" The cue has been given to the witness to stick to No. 3. \"If a witness picks No. 2, looks at the detective and asks, \"Is that the guy?\" Wells said, \"The only proper answer is, 'I have no idea.'" New Jersey was the first state to go to the double-blind procedure in 2001-02. \"I heard every argument why they were against it. Now they love it," Wells said. The impartial lineup administrator should take a statement of the witness at the time they made the ID and make a record of it, Wells said. Sequential lineups are more reliable than the old simultaneous method of posting six pictures on one piece of paper, Wells said. In sequential lineups, photos are given one at a time in a folder to the witness to view a reform that North Carolina has made. The witness is not told how many photos there are going to be, only that they will see one at a time. They are also not told they can go through a second time. \"The witness has to compare each person to their memory and make a more absolute decision,\" Wells said. What happens if the witness picks No. 3? They should still be shown No. 4, 5, and 6. Another recommended practice, Wells said, is to use \"good fillers\" that fit the witness' description of the suspect. He showed a picture of a bad live lineup where only one man out of six had an Afro hairstyle, like the witness described. \"What we really need is a national database of photos and everybody is using the same thing,\" Wells said. \"When a lineup does not contain the perpetrator, bad things happen. I also said that's not very unusual. There's no criterion or threshold of suspicion to out someone in an ID procedure. I'm gearing up to write a major piece on this. There probably should be some notion of reasonable cause before putting someone in a photo lineup,\" Wells said. Wells said it is a good idea to give instructions ahead of time that the person who committed the offense may not be present in the lineup and the witness should not feel like he or she has to make a choice. Course Chat \"You lower the chance of convicting the innocent; there's higher probative value of the identifications; we can better trust the IDs made; we know the ID was made by the witness, not the detective; we know it wasn't just purely relative judgment; it keeps investigations on track; and it promotes greater trust from jurors,\" Wells said. The only law enforcement agency in Florida to use the double-blind, sequential method is the Hillsborough County Sheriff's Office, and Cpl. Steve Decatur gave the practitioner's perspective of the year-old protocol. \"We like to use the best practice, to do a fair, accurate, thorough investigation,\" Decatur said. \"Nothing is worse than getting on the stand and trying to explain yourself when you are not doing best practices. And nothing is better than to be able to have documentation in support of the fairest way of doing things.\" The old way, he explained was to \"pick up little, bitty pictures, glued to one sheet of paper, and make it as pretty as we could for a 'sixpack' lineup.\" Now that they use the sequential double-blind method, Decatur explained he is often used as the lineup administrator. \"Being the 'unaware,' I don't have the ability to react if they pick the right one. I don't know. The way it is done now is fair,\" he said. \"If they say, 'I'm not sure,' we let them back off and not pick anyone. Show them what we've got. If it's not in there, it's not in there. And don't make the person feel they've done something wrong.\" When the witness does pick the suspect out of the lineup, Decatur said, \"We have to be very cautious in the process. We don't say, 'Great job!' and give them a high five. \"I go back to my investigator and say, 'No. 3 was chosen.' We have to document what the response was. If the witness was so certain, we ask, 'What makes you so certain?\" Asked if the person acting as the \"unaware\" administrator of the lineup could be someone other than a law officer to ease the manpower burden on smaller agencies, Decatur answered: \"I'd rather have an investigator. It can become emotional. Rape victims start reliving the whole incident. People pound their fists on the picture!\" Acknowledging it can be time-consuming, Decatur understands why small agencies fear they can't afford the double-blind reform. \"If I have to go to court, I've sat for eight hours and not testified," Decatur said. \"You could be talking about a day and a half for five minutes of testimony.\" The decision to go with the new method came from higher-ups in the department. Course Chat \"The detectives looked at it and wondered, 'How hard is it going to be?' There were some growing pains, and some people initially were concerned how long of a delay process there would be. But it's not as big of an issue as originally thought.\
