Witnesses to crimes make mistakes.
Case experience and scientific research on vision and memory has shown it.
No more perfect illustration is the case of Kirk Bloodsworth, an honorably discharged former Marine. In Lincoln last month, he talked about serving eight years in prison, two on Maryland’s death row, for the 1984 murder and sex assault of a 9-year-old girl.
He was exonerated through DNA testing in 1993.
Bloodsworth became a suspect when a tipster called police to say he resembled a published composite picture. Multiple eyewitnesses identified him in a photo lineup, five testifying at trial they saw Bloodsworth with the victim.
Bloodsworth’s photo looked more like the composite than the man who actually committed the crime.
Lincoln Sen. Patty Pansing Brooks has introduced a bill (LB846) in the Legislature that would require law enforcement agencies in Nebraska to adopt policies on suspect identification by witnesses. The bill will be heard by the Judiciary Committee Thursday, and Bloodsworth will tell his story to senators.
His December visit was sponsored by Nebraskans for Public Safety, a group that supports the Legislature's recent repeal of the death penalty.
A single witness’ identification can be enough to get a conviction, and jurors might not realize that confident, trustworthy witnesses can be mistaken, according to a 2015 Innocence Project report.
Studies and research have shown a person’s senses, vision and memory can be faulty when it comes to identifying crime suspects. Their original memories of the real perpetrator can become influenced and permanently altered and must be handled as carefully as the crime scene itself.
In wrongful convictions overturned by DNA testing, witnesses have testified that they were “100 percent positive” of the identification, that they “would never forget that face,” despite having identified the wrong person.
Pansing Brooks' bill would require that by 2017, all law enforcement agencies in the state must develop written policies on eyewitness identification, following practices recommended by the National Research Council, International Association of Chiefs of Police and the American Bar Association.
Minimum standards include having an officer administer the procedure who is unfamiliar with the potential suspect or who can’t see the photos used for identification, instructing witnesses that the suspect may or may not be depicted in the lineup, requiring the use of nonsuspect ‘fillers’ who do not make the suspect noticeably stand out and who generally match the witness’ description of the suspect, and documenting the witness’ level of certainty in the identification.
Studies have shown the confidence of witnesses increases with even subtle positive feedback -- such as a nod or saying, “OK, good” -- from lineup administrators, even if witnesses later deny the feedback had any effect on their level of certainty.
“The goal is not to micromanage various departments from the Legislature,” Pansing Brooks said. “But we do have to have basic standards because when something doesn’t go right, they look to the state and we have to deal with the repercussions.”
Lincoln police have had a longstanding policy on suspect identification that covers photographic and physical lineups and field identification, Public Safety Director Tom Casady said.
If an agency can demonstrate at a trial that its identification practices are nationally recommended, then judges and juries know how credible the identification is, Casady said.
Most lineups -- the department does several a week -- are done photographically because of the difficulty in finding fillers for physical lineups, he said.
Lincoln police use software that generates potential filler mugshots to evaluate. A minimum of six of people with similar characteristics are selected, and witnesses are shown one photo at a time, preferably by someone unfamiliar with the case. If it’s not possible to get someone unfamiliar with the case, Casady said, the lineup is done without the administrator seeing the photos.
Witnesses are advised that the suspects may or may not be in the photos. And witnesses who identify suspects must state how sure they are.
It’s far more common that a witness has seen a suspect previous to the crime. But even if a suspect is unfamiliar to the witness, Casady said, an identification gives police a suspect on whom they can collect other information and potentially build a case.
Innocence Project spokesman Nick Moroni said Lincoln police should be lauded for their policies on eyewitness identification.
But surveys have shown about 40 percent of law enforcement agencies in the state don’t have policies that comply with scientific research and best police practices. That means education and resources are needed, Moroni said.
“The best way to do that is to make it a requirement,” he said.