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Retired Justice to Head Eyewitness Identification Task Force

by Hugh McQuaid | Sep 21, 2011 3:47pm
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Posted to: Courts, Legal

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Retired state Supreme Court Justice David M. Borden

A proponent of changing the way police conduct criminal identification lineups was appointed chairman of a task force charged with studying the modification after there was not enough support in the legislature to mandate it.

The Eyewitness Identification Task Force named retired state Supreme Court Justice David M. Borden as its chairman Wednesday.

During a Judiciary Committee hearing in March, Borden testified in support of legislation that would have required the implementation of sequential eyewitness lineups rather than traditional lineups where a victim looks at many potential offenders at the same time. In a sequential lineup, a victim is shown one offender — or a picture of one offender — at a time.

The concern is that, despite the widespread belief that eyewitness testimony is a crucial component in the prosecution of accused criminals, studies have shown that the recollections of crime victims are notoriously unreliable.

When a victim is instructed to look at a group of potential suspects simultaneously, a phenomenon known as “relative judgement process” comes in to play, Borden said. Rather than identify an individual that fits their memory, given a photo lineup, victims have a tendency to choose the photo that most resembles the offender relative to the other pictures, he said. It can lead to false convictions.

“It is like an SAT test in which there is no ‘none of the above’ listed,” he said.

The bill, which also made other changes to the eyewitness identification process, was eventually signed into law, but was watered down to establish the task force to study sequential lineups rather than implement them.

The group includes officials from police departments, the State’s Attorney’s Office, and the Division of Public Defender Services as well as nonprofit groups. It has has an April 1, 2012 deadline to make recommendations to the General Assembly. That is well after the legislatures February deadline to propose new legislation.

Judiciary Committee Co-chairman Rep. Gerald Fox III said the bill that established the task force was the product of compromise. The idea of mandating sequential lineups was met with resistance by both Chief State’s Attorney Kevin T. Kane and the heads of the Connecticut Police Chiefs Association who thought it was an example of the legislature overreaching into law enforcement affairs.

At the March hearing Anthony Salvatore and James Strillacci of the Connecticut Police Chiefs Association said the most objectionable part of the bill was that “it would mandate sequential lineups, whose effectiveness has been touted by advocates but remains unproven by real-life research.”

Borden said Wednesday that’s no longer the case.

The American Judicature Society released a study on Monday that conducted field experiments at four police departments across the country that utilize sequential lineups. The majority of the data came from the Austin Police Department in Texas. Borden said the sequential lineups actually performed better than expected.

In studies conducted under laboratory conditions, scientists found that using the sequential method caused a dramatic drop in the number of misidentifications, he said. However, accurate identifications were also somewhat reduced in the laboratory experiments, he said.

But that wasn’t the case when the method was applied to field research, he said.

“Much to the surprise of social scientists there was no drop in accurate identification of actual perpetrators,” he said.

According to the study, simultaneous lineups yielded an identification of a suspect in 25.5 percent of the lineups. Whereas the sequential lineups yielded identification in 27.3 percent of the cases. Researchers determined that the increase in the percentage was within the margin of error and not statistically significant.

There was, however, a significant drop in the number of times victims misidentified someone. The percentage of times a victim identified someone who was not a suspect as the perpetrator dropped from 18.1, under the simultaneous method, to 12.2 using the sequential method.

Though the numbers in the study look promising, Kane, who is a member of the task force, said there are many investigative procedural concerns the group should consider before it makes a decision on whether to recommend mandating the method.

For instance, when crimes are committed in public areas, police frequently show pictures of possible individuals to witnesses to determine whether they were at the scene, he said.

“Unfortunately sometimes that may lead to the person being identified being in fact the person suspected who turns into a suspect and turns into the person being arrested. That can have an impact,” he said. “We can’t look at eyewitness identification in a vacuum.”

The task force should look for ways to enable the law enforcement community to operate under the practical circumstances, he said. If the group recommends a law that is too broad it could impede the ability of police to conduct an investigation, he said.

Stanley W. Konesky, Jr, an training officer at the state police academy said the group should also take time to consider how current officers and recruits will be trained to adapt to any change in the law. He recommended the group select certain departments to implement the method and then take feedback from the agencies.

“That way some of the problems we may not recognize here or see can be brought up,” he said.

Everyone on the task force agreed it is important to ensure the state’s eyewitness identification policy be designed to reduce as best it can the number of misidentifications.

The timing of the meeting Wednesday seemed strangely appropriate. Georgia death row inmate Troy Davis was scheduled to be executed later that day despite claims that ballistic evidence and eyewitness testimony used to convict him were discredited.

Borden said it is difficult to know how many people have been falsely convicted of crimes due to inaccurate eyewitness testimony but said it’s instructive to look at the number of convictions that have been overturned by the Innocence Project around the country.

So far the group, which assists prisoners who can be proven innocent by DNA testing, has exonerated 273 inmates. Of those, more than 75 percent were people who were identified strictly by eyewitness testimony, he said.

“These are all DNA exoneration’s. So we know that these were people who were absolutely innocent and yet who an eyewitness said, ‘that’s the person.’ More than 75 percent,” he said.

He noted that the 273 cases were all DNA cases, usually sexual assault or murder. But one can extrapolate that the same procedures that lead to those convictions were a utilized in all manner of other cases where there was no genetic evidence left behind.

“It has to be tens of thousands of people who have been misidentified and by the same token tens of thousands of actual perpetrators gone free to commit other crimes,” he said.

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