Eyewitness I.D. Reform

By Bill Moushey
Pittsburgh Post-Gazette

A series of eyewitness reforms which call for police officers in Allegheny County to use nationally accepted standards to prevent false eyewitness identifications in criminal investigations has been recommended to every law enforcement agency in the county by a prominent police chief's group.

The voluntary reform policy was circulated by the executive board of the Allegheny County Chiefs of Police Association after four months of study. It aims to start bringing eyewitness identification techniques in this county in line with modern science of memory issues that were the basis of eyewitness reform recommendations issued six years ago by the U.S. Department of Justice. The issues were detailed last May in the Post-Gazette series “Sight Unseen.”

The wide-ranging policy circulated in the past few weeks to approximately 120 police agencies in the county suggests:
· Police should use a “double-blind” photo identification procedure where someone other than the investigator – who does not know who the suspect is -- constructs photo arrays with non-suspects as fillers to reduce suggestiveness;
· Lawmen should instruct witnesses that the perpetrator may or may not be in the array, and witnesses should be presented photos one-at-a-time to prevent comparisons with other suspects;
· Eyewitnesses should be recorded on tape immediately after an identification procedure to establish their degree of confidence, and
· Police should avoid multiple photo identification procedures where the same witness views the same suspect more than once.

A Clear Need

Chief Gary W. Anderson of McCandless, president of the chief’s association, said the group’s 19 member board decided to create the voluntary guidelines after it became clear few Allegheny County departments have policies on eyewitness identifications.

The board made the specific guidelines available to the members so “they can make their own individual choices,” said Chief Anderson, who is implementing all of them in McCandless without problems.

Tim Logue, secretary of the chief’s group who is a retired Green Tree Borough police chief now working with the Allegheny County District Attorney’s investigations unit, said he has had a positive response from police chiefs who examined the voluntary proposal during a vetting process that began in August.

“They have really agreed that is something that needs to be addressed,” Mr. Logue said.

He said the Western Pennsylvania Chiefs of Police Association, which includes agencies from Allegheny and 21 surrounding counties, will consider the policy reforms at a meeting this month.

“Our goal as police administrators is to ensure that no one who is innocent is wrongfully convicted. It that happens through this kind of policy, I think we have an obligation to do it,” Mr. Logue said.

The Pittsburgh Bureau of Police is examining the draft proposal as part of its ongoing review of eyewitness identification practices.

Stephen A. Zappala Jr., Allegheny County District Attorney, said the series published by the Post-Gazette in May caused him to ask the police chiefs group to examine eyewitness identification reforms. The series challenged eyewitness identifications in numerous cases in this region – a New Castle man has been released from prison as a result of it -- and showed few departments have eyewitness identification procedures that meet national standards.

The three-part series was authored by students of the Innocence Institute of Point Park University, a partnership between the school’s Department of Journalism and Mass Communication and the Pittsburgh Post-Gazette where students learn investigative reporting by probing into real-world allegations of injustice.

Mr. Zappala said the case of Thomas Doswell, who was positively identified by an eyewitness in 1986 as an East End rapist and incarcerated for almost 19 years until a DNA test proved his innocence last August, put an exclamation point on his desire to push eyewitness policy reforms.

“It makes a lot of sense. Why not have the best practices in place because we are all trying to get the same results, which is a just result,” Mr. Zappala said of the first eyewitness identification policy reforms in this region.

Eyewitness Reforms

Along with the double blind photo identification process where an administrator who does not know who the suspect is presents the photos to reduce suggestiveness, the reform policy asks police to do sequential photo arrays including one suspect at a time so witnesses don’t compare pictures; use suspect photos that resemble what they looked like on the day of the crime; use fillers that reasonably resemble witness descriptions; lead the process with a filler, and ensure no information about previous arrests is visible to the witness.

Witnesses should be separated, no one should be present who knows the identity of the suspect, the administrator should not offer commentary, and specific instructions that tell witnesses the suspect may or may not be present should be given.

They also say the photos should be presented one at a time.

After the photo identification, police are instructed to preserve them in their original condition and immediately record the confidence of the witness, something that often doesn’t happen.

It suggests many of the same policy reforms when police construct live lineups.

The voluntary policy also suggests that while show-up identifications -- where a nabbed suspect is presented to an eyewitness shortly after an incident -- are “inherently more suggestive,” officers should document a description before the show-up.

They also should try to avoid letting the witness see the suspect in handcuffs or in the back of a police car and the officers should not suggest anything to the witness about the detained person.

If there are multiple witnesses, they should confront the suspect one at a time to prevent them from teaming up and police should promptly record the witness statements in show-up identifications.

Chief Anderson said while departments who implement the “double-blind” process of a disinterested person constructing a photo array or live line-up could incur additional labor costs through overtime and court costs, most of the suggested policy reforms are simple changes of process that cost nothing.

Following a National Trend

Across the country, police officials and prosecutors have been re-evaluating eyewitness identification procedures because of a growing body of cases in which eyewitnesses have falsely identified and helped convict innocent people, while letting the guilty go free.

Mistaken eyewitness identification helped convict nearly 80 percent of the 163 people like Doswell who were exonerated through DNA testing by the New York-based Innocence Project at the Cardozo Law School of Yeshiva University. Other studies also have shown false eyewitness identifications have led to wrongful convictions.

In 2001, New Jersey became the first state to adopt eyewitness reforms. They have been followed in Virginia, the cities of Boston, Chicago and Minneapolis, among other places.

Prior to the Allegheny County police chief’s policy statement, the Post-Gazette/Innocence Institute series reported most police chiefs in Western Pennsylvania had no such policies, instead relying on long used processes different from the new processes that have led to numerous costly court challenges.

“Having a successful investigation come to fruition because of good eyewitness testimony and eyewitness identification is simply a matter of doing the right thing,” Chief Anderson said, suggesting the reforms constitute good police work that will help ensure officers nab the right culprits in crime.

“That’s what the object is,” he said.

Post-Gazette Staff Writer Bill Moushey is director of the Innocence Institute of Point Park University who can be reached at 412-756-3164 or Bmoushey@pointpark.edu.