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Psychologists’ Testimony About
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1 |
2 |
3 |
4 |
5 |
6 |
No Choice |
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| Target (line-up member 3) present | 3% |
13% |
54% |
3% |
3% |
3% |
21% |
| Target (line-up member 3) removed without replacement | 5% |
38% |
-- |
12% |
7% |
5% |
32% |
Table 1, taken from Wells, G. (1993). What do we know about eyewitness identification? 48 American Psychologist 553, shows that most of those who correctly identified the culprit in the culprit-present photo-spread would have incorrectly identified someone else if the culprit had not been present. This tendency, known as the relative judgment process, shows that eyewitnesses will tend to select the person who looks most like the culprit regardless of whether the culprit is in the photo-spread. As Table 1 shows, even with the “culprit might not be present” instruction, significant numbers of misidentifications can occur, in this case, 68% of those shown the photo-montage selecting an innocent person.
A procedure called “dual line-ups” can be used to identify those prone to make an incorrect identification. Eyewitnesses are first shown a “blank line-up”, which contains no suspect, and are given the instruction that the culprit might or might not be present. If they have not been lured into making a false identification, i.e. they do not identify anybody in the “blank line-up”, they are then shown an actual line-up with a suspect present. Eyewitnesses who saw a staged crime and who were shown a “blank line-up” and rejected it were far less likely to make a false identification in the following actual line-up than those who were lured by the “blank line-up” to make an incorrect identification. Wells, G. (1984). The psychology of line-up identifications. 14 Journal of Applied Psychology 89.
Standard procedure in most police departments for many years was to present all of the members of the line-up or all of the photos in the photo-spread to the crime witness simultaneously. Given the research discussed above, psychologists began to wonder whether a sequential viewing procedure would be better, in which the crime witness is shown each person one at a time, and is asked after being shown each line-up member or each photo, “Is this the person?” By forcing the witness to make a yes or no decision for each line-up member or photo without knowing what the remaining members or photos look like, the witness is forced away from making relative judgments, and made to rely on a comparison of his actual memory with the person being viewed. This could serve to combat the high numbers of false identifications that happen during simultaneous procedures. Numerous experiments have been conducted comparing simultaneous procedures to sequential procedures, and the results have shown that the sequential procedures result in more accuracy. See Wells, G., et al (1998). Eyewitness identification procedures: Recommendations for line-ups and photo-spreads. 22 Law and Human Behavior 1, page 13.
Cutler and Penrod review a large number of studies comparing sequential and simultaneous presentation. Cutler, B. & Penrod, S. (1995). Mistaken identification: the eyewitness, psychology, and the law, Cambridge Univ. Press, Cambridge, pp. 127-135. They conclude that presentation style minimally influences identification performance when the true culprit is present in the lineup or photo-montage. However, when the culprit is not present in the line-up or photo-montage sequential presentation substantially reduces false identification compared to simultaneous presentation. Sequential presentation reduces the influence of clothing, foil and instruction biases, and appears to comparably influence identification performance among adults and children. Cutler and Penrod believe that simultaneous presentation is a “suggestive” procedure, because it serves to enhance the probability the witness will make an identification, whether correct or incorrect.
A large number of experiments have addressed the question of the relationship between the accuracy of a witness’s identification and the amount of confidence that person expresses in his identification. Surveys of defense attorneys and prosecutors show that lawyers believe witnesses who are more confident about their identifications are likely to be more accurate. Furthermore, surveys of the public in various countries have also shown that witness confidence is correlated with accuracy. For a review of survey data, see Wells, G., et al (1998). Eyewitness identification procedures: Recommendations for lineups and photo-spreads, 22 Law and Human Behavior 1, page 15.
In experiments using staged crimes, eyewitnesses are examined and cross-examined, and mock juries view their testimony. The mock jurors are then asked to rate the eyewitnesses as to how accurate they believe them to be. Jurors beliefs about witness accuracy correlate significantly with witness confidence, but did not correlate significantly with the actual accuracy of the witness. See for example, Wells, G., et al (1979). Accuracy, confidence, and juror perceptions in eyewitness identification. 64 Journal of Applied Psychology 440, in which 80% of the accurate eyewitnesses were classified as accurate by the jurors, but only 20% of the inaccurate eyewitnesses were classified as inaccurate by the jurors (four out of five false identifications were believed). This occurred because confident eyewitnesses were believed even though confident witnesses were no more likely to be accurate than those who were not confident. See also Lindsay, R., et al (1989). Mock juror belief of accurate and inaccurate eyewitnesses: a replication. 13 Law and Human Behavior 333; Lindsey, R., et al (1981). Can people detect eyewitness identification accuracy within and between situations? 66 Journal of Applied Psychology 79.
In several studies, witnesses viewed a videotaped robbery, and later were shown line-ups. After viewing the crime, but before attempting an identification, they indicated how confident they were that they could correctly identify the culprit if he were in the line-up, and how confident they were they could avoid making a false identification if the robber was not in the line-up. These studies show that pre-identification confidence is a poor predictor of identification accuracy. Cutler, B. & Penrod, S. (1989). Moderators of the confidence-accuracy relation in face recognition: The role of information processing and base rates. 3 Applied Cognitive Psychology 95. Studies examining the relationship between eyewitness accuracy and their confidence after making an identification show a significant but modest correlation. Bothwell, R., et al (1987). Correlation of eyewitness accuracy and confidence: Optimality hypothesis revisited. 72 Journal of Applied Psychology 691. Other studies have focused on whether jurors are sensitive to other factors (other than witness confidence) that are known to influence eyewitness accuracy, such as disguise, weapon-focus, and retention interval. Jurors tend to give little consideration to the other factors, focusing almost exclusively on witness confidence. See for example, Cutler, B., et al (1990). Juror sensitivity to eyewitness identification evidence. 14 Law and Human Behavior 185.
Taken together, the above evidence suggests that jurors appear to over-estimate the accuracy of identifications, fail to differentiate between accurate and inaccurate eyewitnesses (because they rely on witness confidence, which is a poor predictor of accuracy), and are insensitive to other factors that influence identification accuracy. Wells, G., et al (1998). Eyewitness identification procedures: Recommendations for line-ups and photo-spreads. 22 Law and Human Behavior 1.
An eyewitness’s belief that the person he identified is the culprit can occur because of the person’s memory, but it can also occur because of other factors. Witnesses who are questioned repeatedly grow more confident about the accuracy of their identifications. Hastie, R., et al (1978). Eyewitness testimony: The dangers of guessing. 19 Jurimetrics Journal 1. Witnesses who are briefed about what questions they might encounter during cross-examination become more confident about the accuracy of their identifications. Wells, G., et al (1981). The tractability of eyewitness confidence and its implications for triers of fact. 66 Journal of Applied Psychology 688.
Confidence can be affected by other factors as well. One study used a staged crime to secure false identifications from 136 eyewitnesses. These witnesses viewed a staged theft in pairs, and then were separated. They were shown a photo-spread, and unbeknownst to them, they made false identifications. Several experimental conditions were used. In the control condition, the eyewitnesses were not told whom the other member of their pair had identified. In other conditions they were told the other member of the pair had identified the same person they had, or had identified someone else, or had indicated that the culprit was not in the photo-spread. An assistant posing as a police officer then obtained their confidence levels as to the accuracy of their identifications. Results showed large increases in the confidence they expressed in their incorrect identifications when they were told the other member of the pair had identified the same person, while witnesses who were told the other member of the pair had identified someone else, and those who were told the other member had said the culprit was not in the photo-spread, showed significantly less confidence. Luus, C. and Wells, G. (1994). The malleability of eyewitness confidence: Co-witness and perseverance effects. 79 Journal of Applied Psychology 714.
In an experiment in which the eyewitnesses were told after their false identifications that they had identified the suspect, even stronger effects occurred on their confidence in their identifications. Wells, G. and Bradfield (1998), reported in Wells, G. (1998). Eyewitness identification procedures: Recommendations for line-ups and photo-spreads. 22 Law and Human Behavior 1.
Because of all the evidence that confidence and accuracy are only poorly related if at all, the Massachusetts Supreme Judicial Court has held that references to confidence and accuracy should be removed from standard jury instructions. Commonwealth v. Santoli, 424 Mass. 837 (1997).
Guideline/Rule 1: The person who conducts the line-up or photo-spread should not be aware of which member of the lineup or photo-spread is the suspect. AP/LS Report Rule #1; Illinois Commission Report Recommendation #10; the Department of Justice Report did not make this recommendation.
Experiments show that a photo-spread administrator’s behaviors, such as smiling and non-verbal reinforcement of a certain photograph, can lead eyewitnesses to falsely identify that person as the culprit. Fanselow, M. & Buckhout, R. (1976). Non-verbal cueing as a source of biasing information in eyewitness identification testing. Center for Responsive Psychology, N.Y., Brooklyn College C.U.N.Y. In a case reported by the AP/LS committee, a detective obtained a photo of someone he thought was James Washington, his suspect in a crime; however, he had obtained a photo of someone else. He showed a six-photo photo-spread to an eyewitness, and the eyewitness identified the photo the detective thought was Washington. Later, when he learned of the error, the detective obtained a photo that really was a picture of Washington, and put that picture in the photo-spread. The eyewitness then identified Washington. Wells established that the first photo and the second photo that really was a picture of Washington did not resemble each other. Somehow the detective must have facilitated the identification.
Guideline/Rule 2: Eyewitnesses should be told explicitly that the person in question might not be in the line-up or photo-spread, and therefore should not feel that they must make an identification. They should also be told that the person administering the line-up does not know which person is the suspect in the case. AP/LS Report Rule #2; Illinois Commission Report Recommendation #10 and #11. Department of Justice Report Procedure V, B, 4, page 32, states that the eyewitness should be told the culprit may not be included, but does not recommend telling the eyewitness that the administrator does not know who the suspect is.
Guideline/Rule 3: The suspect should not stand out in the line-up or photo-spread as being different from the distracters based on the eyewitness’s previous description of the culprit or based on other factors that would draw attention to the suspect. AP/LS rule #3; Illinois Commission Report Recommendation #13; Department of Justice Report Procedure V, A, pages 29-31, 2, 6, and 7. Lineups and photo-spreads should not reveal to the witness who the suspect is. For example, the suspect should not be the only member of the line-up or photo-spread who fits the description the witness gave to the police earlier. The suspect should not be the only one dressed in clothes worn by the culprit. The suspect’s photo should not be taken from a different angle than the other photos. Under this rule, “show-ups”, in which the eyewitness is only shown one person and is asked if that person is the culprit, would not be allowed.
Line-ups and photo-spreads can be tested using a “mock witness” procedure, in which mock witnesses who have never seen the culprit but are given an eyewitness’s description of him, are shown a lineup or photo-spread, and are asked to point to whom they think is the suspect. A mock witness should not be able to select the suspect at a level exceeding chance expectations if Rule 3 is met.
Guideline/Rule 4: A clear statement should be taken from the eyewitness at the time of the identification and prior to any feedback as to his or her confidence that the identified person is the actual culprit. AP/LS Rule #4; Illinois Commission Report Recommendation 15; Department of Justice Report Procedure V, C, 6 page 36 and V, C, 7, page 37.
Guideline/Rule 5: Sequential line-up and photo-spread procedures are preferred over simultaneous line-up and photo-spread procedures.
This rule was not adopted by the AP/LS committee, as they confined their recommendations to the four rules listed above. However, they did state, “Were we to add a fifth recommendation, it would be that lineup procedures be sequential rather than simultaneous.” The Illinois Commission Report did make this recommendation (#12), but the Department of Justice Report did not, referring to both sequential and simultaneous procedures as being acceptable.
The U.S. Supreme Court held in Stovall v. Denno, 388 U.S. 293 (1967) that principles of due process preclude the use in court of identifications that were the result of “impermissibly suggestive” procedures. The next year the U.S. Supreme court held in Simmons v. United States, 390 U.S. 377 (1968) that the question is whether “the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification”. This test was adopted by Washington Courts in State v. Cook, 31 Wn. App. 165, review denied, 97 Wn. 2d 1018 (1982); see also State v. Linares, 98 Wn. App. 397 (1999); review denied 140 Wn. 2d 1027 (2000).
In Neil v. Biggers, 409 U.S. 188 (1972), the police had used a one-person show-up as the identification task, rather than a photo-montage or line-up. The suspect was walked past the rape victim and was directed to say, “Shut up or I’ll kill you!”, the words used by the rapist seven months earlier. The police claimed they had not been able to find anyone fitting the suspect’s unusual description, and that before they had been unable to use a line-up or a photo-spread.
The U.S. Supreme Court upheld Neil’s conviction, ruling that although the show-up procedure had been suggestive, under the “totality of the circumstances” standard, the victim’s identification of the suspect had been reliable. The Court pointed out that the victim had earlier failed to identify anybody after viewing 30 or 40 photographs, that that she had stated she had “no doubt” about her identification of Neil at the show-up.
The U.S. Supreme Court listed five criteria courts should follow if they have concluded that the identification procedure was impermissibly suggestive, to determine under the “totality of the circumstances” the identification was nevertheless sufficiently “reliable”. These are (1) the opportunity of the eyewitness to view the offender at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description of the offender, (4) the level of certainty displayed by the witness at the identification procedure, and (5) the length of time between the crime and the identification procedure.
The appellate court must balance the reliability of the witness against the harm of the suggestiveness, based on the five factors. Two other U.S. Supreme Court cases hold that in most circumstances juries are able to intelligently consider the weight of questionable identification testimony. Manson v. Braithwaite, 432 U.S. 98 (1977); Simmons v. U.S., 390 U.S. 377 (1968). Therefore, the trend is to allow the questionable, or “suggestive”, identification to be admitted.
The Neil v. Biggers criteria have been adopted in Washington in State v. Maupin, 63 Wn. App. 887, review denied 119 Wn. 2d 1003 (1992). Any uncertainty or inconsistency in identification testimony goes to weight, not admissibility. State v. Vaughn, 101 Wn. 2d 604 (1984). The appellate courts review a trial court’s decision as to whether to admit photo-spread, line-up or show-up identifications under an “abuse of discretion” standard. Staten v. Hill 123 Wn. 2d 641 (1994). Generally courts have found photo-spreads and line-ups impermissibly suggestive only when the defendant is the sole possible choice in light of the witness’s earlier description. State v. Ramires, 109 Wn. App. 749 (2002), review denied 146 Wn. 2d 1022 (2002). In State v. Traweek, 43 Wn. App. 99 (1986) the court held that a line-up identification was reliable even though the victim of the assault described his assailant as a blond man, and the defendant was the only blond man in the line-up. In State v. Thompson, 117 Wn. App. 1057 (2003), an unpublished Division One opinion, the detective pointed out Thompson’s photograph in the photo-spread to two witnesses, and the court agreed this “raises the possibility of suggestiveness”, but concluded that this behavior “did not impermissibly taint the subsequent identifications in this particular case”, as the witnesses had not changed their minds after the detective pointed out Thompsons’ photo in the first montage. The court did say “we strongly disapprove” of the detective’s conduct.
Indeed, in almost all cases the identification is upheld because the witness is deemed to be “reliable” even when the identification procedure is considered to be “impermissible suggestive”. For example, in State v. Burrell, 28 Wn. App. 606 (1981) the photo-montage was deemed suggestive because the eyewitness had described an Afro hairstyle and, of the nine photos in the montage, the defendant’s was a closer view, and no one else had an Afro as long as Burrell’s. The court held, “When at least one witness’s description refers to a particular and somewhat distinctive characteristic…and the defendant’s is the only photograph with such a characteristic, the risk that a misidentification will occur based solely or primarily upon that characteristic is substantially enhances.” Nonetheless, the conviction was affirmed. Similarly, in State v. Weddell, 29 Wn. App. 461 (1981), the court found a difference in backgrounds in the photo-montage “troubling”, but again, the conviction was affirmed. “Show-up” procedures, in which the victim views the defendant only, usually in handcuffs, are obviously suggestive, but their use is commonly affirmed. See, for example, State v. Shea, 85 Wn. App. 56 (1997) and State v. Habbit, 114 Wa. App. 1044 (2003). Indeed, courts very rarely suppress identifications even in cases in which very suggestive procedures were used. Loftus, E. & Doyle, J. (1997), Eyewitness testimony: civil and criminal (3rd Ed. Supp. 2000), Lexis Law Press, Charlottseville, VA.
The right to counsel at a line-up attaches only at or after the initiation of judicial proceedings, and does not exist before charges are filed. Moore v. Illinois, 434 U.S. 220 (1977); State v. Lewis, 19 Wn. App. 35 (1978). There is no right to counsel at a photo-spread identification. U.S. v. Ash, 413 U.S. 300 (1973).
The admissibility of expert testimony is governed generally by ER 702, which states “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
Thus, the trial court uses a three-part test to determine whether the proposed expert opinion evidence will be admitted. (1) Is the witness qualified? (2) Is the opinion based upon an explanatory theory generally accepted in the scientific community (the so-called Frye test; Frye v. U.S., 293 F. 1013 [D.C. Cir. 1923])? And (3) Will the expert testimony be “helpful to the trier of fact”? See State v. Allery, 101 Wn. 2d 591 (1984).
In the previous edition of The Trowbridge Report (Admissibility of Expert Testimony concerning Eyewitness Evidence in Washington, Vol. II, Issue 1, Winter 2001), we discussed in detail the factors courts use in deciding whether to allow expert testimony about eyewitness identifications. The same factors are used in deciding whether to allow expert opinion testimony about show-ups, photo-spreads, and line-ups, since such testimony is a type of expert witness testimony about eyewitness identification. State v. Moon, 45 Wn. App. 692 (1986), held it would be an abuse of discretion if the trial court excluded such expert opinion testimony if three factors were present: (1) the identification of the defendant is the principal issue at trial, (2) the defendant presents an alibi defense, and (3) there is little or no other evidence linking the defendant to the crime. In State v. Johnson, 49 Wn. App. 432 (1988), review denied 110 Wn. 2d 1005 (1988), the requirement for an alibi defense was arguably removed. However, the presence of all three factors does not automatically require a reversal. State v. Ward, 55 Wn. App. 382 (1980), review denied 113 Wn. 2d 1029 (1989). Rather, these factors provide guidance for the appellate courts as to whether there has been an abuse of discretion. Ward, supra. An abuse of discretion will only be found in those “few exceptional cases” that are “close and confusing”, and which “cry out” for an explanation”. Ward, supra. In State v. Johnson, A Division One case, supra, an additional requirement was imposed that there be “serious contradictions in the eyewitness testimony, as well as a proper “fit” between those contradictions and the proposed expert testimony. Division Three has apparently followed that holding. State v. Taylor, 50 Wn. App. 481 (1988); State v. Hernandez, 54 Wn. App. 323 (1989). Division Two discussed the Moon decision, but declined to require trial courts to admit expert opinion evidence about eyewitness testimony, even if all three Moon factors were met. State v. Hernandez, 58 Wn. App. 793 (1990), review denied, 117 Wn. 2d 1011 (1991). The Washington Supreme Court has also declined to adopt Moon in State v. Coe, 109 Wn. 2d 832 (1988), holding that refusal to admit expert opinion evidence about eyewitness identification lies within the trial court’s discretion. Indeed, in a very recent cross-racial identification case, State v. Cheatam (73079-2, decided 12-11-2003), the Washington State Supreme Court again dis-approved Moon, stating only that trial courts must “carefully consider whether expert testimony on the reliability of eyewitness identification would assist the jury in assessing the jury in assessing the reliability of eyewitness testimony”.
Commonly used police procedures for show-ups, photo-spreads and line-ups were developed long before scientific study in these areas was initiated. Therefore, incorporation of new procedures based on scientific research would clearly improve accuracy of identifications. The AP/LS, the Illinois Commission, and the Department of Justice Report make similar recommendations so there is now a consensus in several recommendations to improve identification accuracy. Police who are not following these recommendations can be questioned in trial why they are not doing so even if courts allow such identifications to be admitted into evidence.
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