A blog of the Philadelphia Bar Association’s Criminal Justice Section

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The Pulse: Philadelphia D.A. defends city’s reliance on eyewitnesses

By Michael Smerconish
Inquirer Columnist

Do your eyes deceive you?

Yes, according to a recent opinion from the New Jersey Supreme Court. In a landmark decision last month, the court made it easier for criminal defendants to challenge eyewitnesses at trial, and later this fall, the U.S. Supreme Court will take its own look at lineups.

It remains to be seen whether the New Jersey ruling will affect procedures across the country, but it probably will not in Philadelphia, where the city has a system the district attorney thinks is working.

In analyzing the fallibility of lineups, the New Jersey court cited Convicting the Innocent, a book by professor Brandon Garrett of the University of Virginia. Garrett made it his business to learn what had gone wrong in the first 250 cases where wrongful convictions were overturned with DNA evidence. In 76 percent of those cases, the exonerated had been incriminated by eyewitnesses in lineups or photo arrays.

“The lesson is that lineups can do as good a job as possible preserving memory or they can distort it. They can in fact change a person’s memory,” Garrett told me. “All lineups are not created equal.”

According to Garrett, there are many explanations for misidentification. His research uncovered instances when eyewitnesses were induced (“Take a look at No. 6 again”), when only one photograph offered to a witness was in color, or when one person appeared in multiple lineups. The study showed that “unconscious cues play an enormous role. If an investigator knows who is suspect, he may do unconscious things without realizing it. He may pause over a photograph. He may hurry along past non-suspects and then say, ‘Take your time.’

“Sometimes an eyewitness is looking for reassurance and they may perceive cues that were never intended or made, in which case police can lose good convictions.”

Many of the cases Garrett analyzed involved rape. More than half involved race, and those cases were particularly susceptible to misidentification.

“It’s harder for people to recognize faces of another race,” Garrett told me. “We are better at recognizing faces like ours.”

Amazingly, more than one-third of the cases reviewed had multiple eyewitnesses, meaning more than one person picked out the wrong man.

So how can practices improve?

Garrett says lineups need to be “blinded,” meaning those running them are not involved in the investigation and don’t know who the suspects are – and the eyewitness should be told that so as to not misinterpret police behavior as offering any clues. Also, witnesses should be told there may or may not be a suspect in the lineup. And, in the case of photo arrays, pictures should be presented sequentially, not as part of a group.

That is not the practice in Philadelphia; however, the city’s system has additional safeguards for defendants. For example, photo arrays are currently presented as a group of eight (not sequentially), but a Police Department spokesman said there was “never a problem with fairness of the arrays because the computer picks people who look like the suspect.”

As for the lineups, District Attorney Seth Williams expanded on the current practice to me:

“In Philadelphia, the detective that coordinates the lineups is not assigned to the case. He does, however, know who the defendant is, because in Philadelphia the defendant and his/her attorney pick the ‘fillers’ for the lineup. The detective explains the process to the victim and witnesses in the presence of a prosecutor and defense counsel; while doing so, he clearly states that the defendant may or may not be in the lineup. I don’t know how we would in practice conduct the lineups without the detective knowing who was arrested and requested the lineup.”

“It’s not like on TV, where we all know who did it and we go and create a lineup,” Williams added. “Lineups are not used in Philadelphia as investigatory tools like on Law and Order.

“We use it only after a defendant has been arrested and where at preliminary hearing the defense makes a motion requesting it.”

Williams offered an example of how Philadelphia’s system works: A person is shot and information is provided to law enforcement based on an eyewitness’ account. An arrest is made, but the eyewitness does not identify the suspect upon arrest. At the preliminary hearing, the defense might ask for a lineup in a bid to suppress information that led to the arrest. If the request is approved, the defense would help decide who, in addition to the suspect, would be in the lineup.

“If someone has a better idea, I am always willing to look at it,” Williams said, adding that he thinks the system here works.

Contact Michael Smerconish

via http://www.smerconish.com.

Read his columns at http://www.philly.com/smerconish.

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