Eyewitness Misidentification - Revision history

Ibjadmin: /* Case Studies */

2011-04-04T15:03:36Z

Case Studies

← Older revision		Revision as of 17:03, 4 April 2011
Line 129:		Line 129:
	----		----
	See [[Causes of Wrongful Convictions]]		See [[Causes of Wrongful Convictions]]

			{{Languages\|Eyewitness Misidentification}}

	== Notes ==		== Notes ==
	<references/>		<references/>

Ibjadmin: /* Variables */

2010-07-13T05:51:45Z

Variables

← Older revision		Revision as of 07:51, 13 July 2010
Line 36:		Line 36:
	Examples include:		Examples include:
	*Manner in which Investigating Officers retrieve information from Eyewitness		*Manner in which Investigating Officers retrieve information from Eyewitness
	**Type of Lineups or Photo Arrays		**Type of [[Showups, Lineups, and Photo Arrays \| Lineups or Photo Arrays]]
	**Selection of Fillers		**Selection of Fillers
	**Manner in which the Lineup is Administered		**Manner in which the Lineup is Administered

Ibjadmin: /* Case Studies */

2010-06-15T20:24:27Z

Case Studies

← Older revision		Revision as of 22:24, 15 June 2010
Line 126:		Line 126:
	* Bobby Joe Leaster		* Bobby Joe Leaster
	In 1970, a man named Levi Whiteside was killed in a hold-up of a neighborhood store. Bobby Joe, who was standing on a nearby street corner on his way to visit his family, was wearing clothes that matched eyewitness descriptions of the person who killed Levi. Bobby Joe was apprehended and brought in front of the victim's widow, who was held at gunpoint during the hold-up and had looked at the assailant. The police presented only Bobby Joe, in handcuffs and asked "is this him?" She identified him and he ended up in prison for 15 years, until another eyewitness testimony freed him. (Mourer 2008, 1 - 2)		In 1970, a man named Levi Whiteside was killed in a hold-up of a neighborhood store. Bobby Joe, who was standing on a nearby street corner on his way to visit his family, was wearing clothes that matched eyewitness descriptions of the person who killed Levi. Bobby Joe was apprehended and brought in front of the victim's widow, who was held at gunpoint during the hold-up and had looked at the assailant. The police presented only Bobby Joe, in handcuffs and asked "is this him?" She identified him and he ended up in prison for 15 years, until another eyewitness testimony freed him. (Mourer 2008, 1 - 2)

			----
			See [[Causes of Wrongful Convictions]]

	== Notes ==		== Notes ==
	<references/>		<references/>

Mmurray: /* Case Studies */

2010-06-15T14:47:56Z

Case Studies

← Older revision		Revision as of 16:47, 15 June 2010
Line 119:		Line 119:

	* Shawn Massey		* Shawn Massey
	Massey spent 12 years in prison based on a false eyewitness identification. At the time of identification, the eyewitness was shown several photos and pointed out a resemblance between Massey and the perpetrator. However, she also told investigators that Massey did not have the correct hair, his skin was much lighter, and he weighed much less than the perpetrator. None of this information was given to Massey's Defense Attorney and did not come to light at trial. This information didn't come to light until years later ~~and~~ Massey was finally released. Luckily, the witness was open to cooperating with investigators. This case demonstrates the importance of ~~defense attorney~~'s conducting investigations into the identification process. (Duke Law Innocence Project).		Massey spent 12 years in prison based on a false eyewitness identification. At the time of identification, the eyewitness was shown several photos and pointed out a resemblance between Massey and the perpetrator. However, she also told investigators that Massey did not have the correct hair, his skin was much lighter, and he weighed much less than the perpetrator. None of this information was given to Massey's Defense Attorney and did not come to light at trial. This information didn't come to light until years later when Massey was finally released. Luckily, the witness was open to cooperating with investigators. This case demonstrates the importance of the Defense Attorney's conducting investigations into the identification process. (Duke Law Innocence Project).

	* Calvin Willis		* Calvin Willis
Line 125:		Line 125:

	* Bobby Joe Leaster		* Bobby Joe Leaster
	In 1970, a man named Levi Whiteside was killed in a ~~holdup~~ of a neighborhood store. Bobby Joe, who was standing on a nearby street corner on his way to visit his family, was wearing clothes that matched eyewitness descriptions of the person who killed Levi. Bobby Joe was apprehended and brought in front of the victim's widow, who was held at gunpoint during the ~~holdup~~ and had looked at the assailant. The police presented only Bobby Joe, in handcuffs and asked "is this him?" She identified him and he ended up in prison for 15 years, until another eyewitness testimony freed him. (Mourer 2008, 1 - 2)		In 1970, a man named Levi Whiteside was killed in a hold-up of a neighborhood store. Bobby Joe, who was standing on a nearby street corner on his way to visit his family, was wearing clothes that matched eyewitness descriptions of the person who killed Levi. Bobby Joe was apprehended and brought in front of the victim's widow, who was held at gunpoint during the hold-up and had looked at the assailant. The police presented only Bobby Joe, in handcuffs and asked "is this him?" She identified him and he ended up in prison for 15 years, until another eyewitness testimony freed him. (Mourer 2008, 1 - 2)


	== Notes ==		== Notes ==
	<references/>		<references/>

Mmurray: /* Trial Tips */

2010-06-15T14:46:24Z

Trial Tips

Mmurray: /* Practical Considerations */

2010-06-15T14:35:52Z

Practical Considerations

← Older revision		Revision as of 16:35, 15 June 2010
Line 81:		Line 81:
	'''Lineup Attendance:''' The Defender should attend the lineup whenever possible. The National Institute of Justice published a report entitled ''Eyewitness Evidence - A Guide for Law Enforcement'' outlining fair lineup practices. In general, the Defender should remain passive during the lineup, and if he/she determines that some action is necessary, he/she should be authoritative, yet deferential.		'''Lineup Attendance:''' The Defender should attend the lineup whenever possible. The National Institute of Justice published a report entitled ''Eyewitness Evidence - A Guide for Law Enforcement'' outlining fair lineup practices. In general, the Defender should remain passive during the lineup, and if he/she determines that some action is necessary, he/she should be authoritative, yet deferential.
	*''Passive Role:'' The Defender should document all procedures for later use in court. Ideally, the Defender should carry a small video camera and be accompanied by an unbiased third party who will act as a "prover" in court.		*''Passive Role:'' The Defender should document all procedures for later use in court. Ideally, the Defender should carry a small video camera and be accompanied by an unbiased third party who will act as a "prover" in court.
	*''Active Role:'' If the Defender determines that it is in the client's best interest to interfere, the Defender should file a "Motion for ~~best practices~~".		*''Active Role:'' If the Defender determines that it is in the client's best interest to interfere, the Defender should file a "Motion for Best Practices".

	== Trial Tips ==		== Trial Tips ==

Mmurray: /* Practical Considerations */

2010-06-15T14:35:16Z

Practical Considerations

← Older revision		Revision as of 16:35, 15 June 2010
Line 68:		Line 68:
	'''Engaging an Expert Witness:''' Expert Testimony can be used to discredit an eyewitness identification.		'''Engaging an Expert Witness:''' Expert Testimony can be used to discredit an eyewitness identification.

	'''Motion to Suppress:''' ~~Prosecution~~ unlikely to pursue a case in which the eyewitness is uncertain, however if there are mitigating factors, the defense can submit a Motion to Suppress the identification and exclude the eyewitness' testimony. ''Neil v. Biggers'' (1972)outlines the standard for granting a Motion to Suppress. Factors include:		'''Motion to Suppress:''' The prosecution is unlikely to pursue a case in which the eyewitness is uncertain; however if there are mitigating factors, the defense can submit a "Motion to Suppress" the identification and exclude the eyewitness' testimony. ''Neil v. Biggers'' (1972)outlines the standard for granting a Motion to Suppress. Factors include:
	*1) Opportunity of the witness to view criminal at time of crime		*1) Opportunity of the witness to view the criminal at the time of the crime
	*2) Witness' degree of tension		*2) Witness' degree of tension
	*3) Accuracy of the witness' prior description of criminal		*3) Accuracy of the witness' prior description of criminal
Line 77:		Line 77:


	'''Client Preparation:''' If client is asked to participate in a lineup, it is important to brief him/her to cooperate and avoid any obnoxious behavior. Lack of cooperation can be used against the client at trial. The Defender should research how lineups are conducted in the locality and explain the process to the client. Also, should advise his/her client not to speak to other members of the lineup.		'''Client Preparation:''' If the client is asked to participate in a lineup, it is important to brief him/her to cooperate and avoid any obnoxious behavior. Lack of cooperation can be used against the client at trial. The Defender should research how lineups are conducted in the locality and explain the process to the client. Also, he/she should advise his/her client not to speak to other members of the lineup.

	'''Lineup Attendance:''' Defender should attend the lineup whenever possible. The National Institute of Justice published a report entitled ''Eyewitness Evidence - A Guide for Law Enforcement'' outlining fair lineup practices. In general, the defender should remain passive during the lineup. If the defender determines that some action is necessary, the defender should be authoritative, yet deferential.
	*''Passive Role:'' Document all procedures for later use in court. Ideally, the defender should carry a small video camera and be accompanied by a unbiased third party, who will act as a "prover" in court.
	*''Active Role:'' If the defender determines that it is in the client's best interest to interfere, the defender should file a motion for best practices.

			'''Lineup Attendance:''' The Defender should attend the lineup whenever possible. The National Institute of Justice published a report entitled ''Eyewitness Evidence - A Guide for Law Enforcement'' outlining fair lineup practices. In general, the Defender should remain passive during the lineup, and if he/she determines that some action is necessary, he/she should be authoritative, yet deferential.
			*''Passive Role:'' The Defender should document all procedures for later use in court. Ideally, the Defender should carry a small video camera and be accompanied by an unbiased third party who will act as a "prover" in court.
			*''Active Role:'' If the Defender determines that it is in the client's best interest to interfere, the Defender should file a "Motion for best practices".

	== Trial Tips ==		== Trial Tips ==

Mmurray: /* Solutions */

2010-06-15T14:29:11Z

Solutions

← Older revision		Revision as of 16:29, 15 June 2010
Line 50:		Line 50:
	== Solutions ==		== Solutions ==

	Reform measures generally promote increased diligence by ~~Law Enforcement Officials~~:		Reform measures generally promote increased diligence by law enforcement officials:

	* '''Instructing the witness:''' ~~Important~~ to emphasize that the suspect may not be in the lineup. ~~Official~~ should discourage the witness from guessing if unsure.<ref>Niemen Foundation for Journalism at Harvard University Website [http://niemanwatchdog.org/index.cfm?fuseaction=ask_this.view&askthisid=0028]</ref>		* '''Instructing the witness:''' It is important to emphasize that the suspect may not be in the lineup. The official should discourage the witness from guessing if unsure.<ref>Niemen Foundation for Journalism at Harvard University Website [http://niemanwatchdog.org/index.cfm?fuseaction=ask_this.view&askthisid=0028]</ref>

	* '''Lineup Composition:''' ~~Should~~ use five or more fillers who fit the basic description of the suspect to ensure that one person does not obviously stand out as different. ~~Examples:~~ should not be the only one of his/her race or the only one with facial hair. Additionally, the same suspect should not be shown in multiple lineups.<ref>Niemen Foundation for Journalism at Harvard University Website [http://niemanwatchdog.org/index.cfm?fuseaction=ask_this.view&askthisid=0028]</ref>		* '''Lineup Composition:''' Officials should use five or more fillers who fit the basic description of the suspect to ensure that one person does not obviously stand out as different. For example, the person should not be the only one of his/her race or the only one with facial hair. Additionally, the same suspect should not be shown in multiple lineups.<ref>Niemen Foundation for Journalism at Harvard University Website [http://niemanwatchdog.org/index.cfm?fuseaction=ask_this.view&askthisid=0028]</ref>

	* '''Sequential v. Simultaneous Display:''' During a photographic lineup, experts suggest displaying ~~the~~ pictures sequentially, rather than simultaneously. The problem with simultaneous display is that a witness tends to perform a relative judgment of which ''most resembles'' their image of the suspect. Currently only New Jersey and North Carolina mandate sequential display.<ref>Sandra Guerra Thompson, "Judicial Blindness to Eyewitness Misidentification", Marquette Law Review, Forthcoming, U of Houston Law Center No. 2009-A-35.</ref>		* '''Sequential v. Simultaneous Display:''' During a photographic lineup, experts suggest displaying pictures sequentially rather than simultaneously. The problem with simultaneous display is that a witness tends to perform a relative judgment of which ''most resembles'' their image of the suspect. Currently only New Jersey and North Carolina mandate sequential display.<ref>Sandra Guerra Thompson, "Judicial Blindness to Eyewitness Misidentification", Marquette Law Review, Forthcoming, U of Houston Law Center No. 2009-A-35.</ref>

	* '''Blind lineup:''' A lineup conducted by a law enforcement official other than the case detective. This way, the officer conducting the lineup cannot distinguish between fillers and the individual of interest and cannot unintentionally or intentionally indicate the identity of the suspect.<ref>Fisher, Stanley "Eyewitness Misidentification Reform in Massachusetts", Working Paper Series, Public Law & Legal Theory Working Paper No. 07, 2007.</ref>		* '''Blind lineup:''' The lineup should be conducted by a law enforcement official other than the case detective. This way, the officer conducting the lineup cannot distinguish between fillers and the individual of interest and cannot unintentionally or intentionally indicate the identity of the suspect.<ref>Fisher, Stanley "Eyewitness Misidentification Reform in Massachusetts", Working Paper Series, Public Law & Legal Theory Working Paper No. 07, 2007.</ref>

	* '''Confidence Statement:''' Immediately following identification, individual conducting the lineup should secure a statement from the eyewitness ~~on their~~ level of certainty. Timing is extremely important. An eyewitness tends to become more certain after being briefed by the police and prosecutors.<ref>Ann Bradfield, Gary Wells and Elizabeth Olson, "The Damaging Effect of Confirming Feedback on the Relationship Between Eyewitness Certainty and Identification Accuracy" Journal of Applied Psychology Vol. 87, No. 1, Pg. 216, 2002.</ref>		* '''Confidence Statement:''' Immediately following identification, the individual conducting the lineup should secure a statement from the eyewitness' level of certainty. Timing is extremely important. An eyewitness tends to become more certain after being briefed by the police and prosecutors.<ref>Ann Bradfield, Gary Wells and Elizabeth Olson, "The Damaging Effect of Confirming Feedback on the Relationship Between Eyewitness Certainty and Identification Accuracy" Journal of Applied Psychology Vol. 87, No. 1, Pg. 216, 2002.</ref>

	* '''Records:''' Investigators should maintain a clear record of every lineup, not just the one that resulted in identification of a suspect. Additionally, identification should be video recorded whenever possible. Recording benefits both the defense and the prosecution. In the event of misconduct, the defense has visual evidence. On the other hand, the prosecution may show the jury that the procedures were legitimate and aboveboard.		* '''Records:''' Investigators should maintain a clear record of every lineup, not just the one that resulted in identification of a suspect. Additionally, identification should be video recorded whenever possible. Recording benefits both the defense and the prosecution. In the event of misconduct, the defense has visual evidence. On the other hand, the prosecution may show the jury that the procedures were legitimate and aboveboard.

	== Practical Considerations ==		== Practical Considerations ==

Mmurray: /* Policy */

2010-06-15T14:19:55Z

Policy

← Older revision		Revision as of 16:19, 15 June 2010
Line 44:		Line 44:
	== Policy ==		== Policy ==

	~~Currently~~ no government endorsed ~~policy~~ to reform eyewitness misidentification. However, lawyers, judges, and law enforcement officials are ~~not unaware~~ of the systemic problems with eyewitness misidentification.<ref>Sandra Guerra Thompson, "Judicial Blindness to Eyewitness Misidentification", Marquette Law Review, Forthcoming, U of Houston Law Center No. 2009-A-35.</ref> In 1999, the United States Department of Justice (DOJ) published a report entitled "Eyewitness Evidence: A Guide for Law Enforcement." The report provides a guide for standardizing eyewitness identification to minimize errors. The DOJ supports a methodical approach and provides guidance at every step of investigation from the initial witness interview to instructing the witness during lineups.<ref>US Justice Department's National Institute of Justice Website: Eyewitness Evidence: A Guide for Law Enforceme[http://www.ncjrs.gov/pdffiles1/nij/178240.pdf]</ref>		There are currently no government-endorsed policies to reform eyewitness misidentification. However, lawyers, judges, and law enforcement officials are aware of the systemic problems with eyewitness misidentification.<ref>Sandra Guerra Thompson, "Judicial Blindness to Eyewitness Misidentification", Marquette Law Review, Forthcoming, U of Houston Law Center No. 2009-A-35.</ref> In 1999, the United States Department of Justice (DOJ) published a report entitled "Eyewitness Evidence: A Guide for Law Enforcement." The report provides a guide for standardizing eyewitness identification to minimize errors. The DOJ supports a methodical approach and provides guidance at every step of investigation from the initial witness interview to instructing the witness during lineups.<ref>US Justice Department's National Institute of Justice Website: Eyewitness Evidence: A Guide for Law Enforceme[http://www.ncjrs.gov/pdffiles1/nij/178240.pdf]</ref>

	Some states have undertaken reforms of their own volition, though the process is limited to future identifications only. For example, reform programs have begun in New Jersey, North Carolina, and Wisconsin. In addition, a few cities have begun implementing reform: Boston, MA; Minneapolis, MN; and Virginia Beach, VA.<ref>Niemen Foundation for Journalism at Harvard University Website [http://niemanwatchdog.org/index.cfm?fuseaction=ask_this.view&askthisid=0028]</ref>		Some states have undertaken reforms of their own volition, though the process is limited to future identifications only. For example, reform programs have begun in New Jersey, North Carolina, and Wisconsin. In addition, a few cities have begun implementing reform: Boston, MA; Minneapolis, MN; and Virginia Beach, VA.<ref>Niemen Foundation for Journalism at Harvard University Website [http://niemanwatchdog.org/index.cfm?fuseaction=ask_this.view&askthisid=0028]</ref>

	== Solutions ==		== Solutions ==

Mmurray: /* Variables */

2010-06-15T14:16:54Z

Variables

← Older revision		Revision as of 16:16, 15 June 2010
Line 31:		Line 31:
	*Degree of Stress and Trauma suffered by Eyewitness		*Degree of Stress and Trauma suffered by Eyewitness

	'2) '''Systems Variables'''		2) '''Systems Variables:'''
	Variables that can and should be controlled by the criminal justice system.		Variables that can and should be controlled by the criminal justice system.

← Older revision		Revision as of 16:46, 15 June 2010
Line 85:		Line 85:
	== Trial Tips ==		== Trial Tips ==

	'''Cross-Examination of Eyewitness Evidence:''' Issues defense should explore during trial preparation:		'''Cross-Examination of Eyewitness Evidence:''' Issues the defense should explore during trial preparation:
	*Which identification elements do you (the attorney) want to present to the jury?		*Which identification elements do you (the attorney) want to present to the jury?
	*What jury instructions do you want given to the jury regarding identification?		*What jury instructions do you want given to the jury regarding identification?
Line 93:		Line 93:

	'''Opening Statement:'''		'''Opening Statement:'''
	The opening statement is the defense's first opportunity to argue in a "you will hear today" manner for eyewitness misidentification. If the ~~defender~~ plans to attack the legitimacy of the identification, the ~~defender~~ should claim the eyewitness is either mistaken or lying. The defense should be prepared to present evidence regarding the witness' motive, if claiming the witness is lying. In the majority of cases, the defender should claim that the eyewitness is simply mistaken and ~~be able to~~ demonstrate discrepancies.		The opening statement is the defense's first opportunity to argue in a "you will hear today" manner for eyewitness misidentification. If the Defender plans to attack the legitimacy of the identification, the Defender should claim the eyewitness is either mistaken or lying. The defense should be prepared to present evidence regarding the witness' motive, if claiming the witness is lying. In the majority of cases, the defender should claim that the eyewitness is simply mistaken and demonstrate discrepancies.

	'''Jury Instructions:'''		'''Jury Instructions:'''
Line 99:		Line 99:

	'''Reasonable Doubt:'''		'''Reasonable Doubt:'''
	Eyewitness ~~Misidentification~~ is an argument for reasonable doubt~~. The~~ defense is contesting that there is at least a reasonable doubt that the crime was not committed by the defendant. In order to succeed on reasonable doubt, the defense should focus on weakening the credibility of the identification. Factors to explore:		Eyewitness misidentification is an argument for reasonable doubt as the defense is contesting that there is at least a reasonable doubt that the crime was not committed by the defendant. In order to succeed on reasonable doubt, the defense should focus on weakening the credibility of the identification. Factors to explore:
	* Did the eyewitness have any interaction with the alleged perpetrator prior to the offense?		* Did the eyewitness have any interaction with the alleged perpetrator prior to the offense?
	* How long was the incident? Did the eyewitness have a sufficient amount of time to identify the perpetrator?		* How long was the incident? Did the eyewitness have a sufficient amount of time to identify the perpetrator?
Line 106:		Line 106:
	* What were the conditions? Was it day or night, light or dark, cloudy or sunny, etc?		* What were the conditions? Was it day or night, light or dark, cloudy or sunny, etc?
	* Does the eyewitness have impaired vision?		* Does the eyewitness have impaired vision?
	* Did the perpetrator use a deadly weapon that might have ~~distract~~ the eyewitness during the incident?		* Did the perpetrator use a deadly weapon that might have distracted the eyewitness during the incident?
	* Has the eyewitness changed ~~their~~ description of the perpetrator at any time?		* Has the eyewitness changed the description of the perpetrator at any time?
	* How was identification conducted: lineup, mugbook, photo display, etc?		* How was identification conducted: lineup, mugbook, photo display, etc?
	* How long between the incident and identification?		* How long was it between the incident and identification?
	* Was the perpetrator in disguise?		* Was the perpetrator in disguise?
	* Did the perpetrator have any identifying characteristics?		* Did the perpetrator have any identifying characteristics?
	* Does your client have any distinguishing features that the perpetrator did not have?		* Does your client have any distinguishing features that the perpetrator did not have?
	* Did your client have any contact with the eyewitness prior to/after the event that might have led the eyewitness to confuse your client with the perpetrator?		* Did your client have any contact with the eyewitness prior to/after the event that might have led the eyewitness to confuse your client with the perpetrator?
	* Did the investigators do or say anything to improperly influence the eyewitness identification?		* Did the investigators do or say anything to improperly influence the eyewitness identification?

	== Case Studies ==		== Case Studies ==