APD Among Texas Police Agencies With Poor Eyewitness ID Procedures
The Justice Project says Texas police agencies are way behind in implementing best practices that can decrease the incidence of mistaken identification.
By Jordan Smith,
2:03PM, Wed. Nov. 19, 2008
The Austin Police Department "meets the minimum legal requirements" for the administration of live and photo lineups of criminal suspects, but "does little to ensure that its lineup procedures provide the best evidence possible in any given case," according to a new report released this morning by the non-profit The Justice Project.
The group contacted more than 1,000 police departments across Texas requesting policies and procedures for photo and live lineup procedures; 750 departments responded, but just 88 had any written protocols for the administration of lineups – and among that group, TJP found that the policies and procedures provided are "largely inadequate" and are "inconsistent across departments." (More than 600 departments – including the Travis Co. Sheriff's Office – returned a form affirming that they have no written policies governing lineup procedures. Another 284 departments failed to respond to TJP's requests, as required by Texas' public information law. The group has sent those agencies a second open records request and has contacted the Texas Attorney General's Open Records Division.)
That's troubling news for criminal justice reformers: faulty eyewitness identification has played a role in 75% of the 223 exonerations nationwide. In Texas, mistaken identification has been implicated in 82% of the 38 cases where a defendant was exonerated by DNA. Texas now leads the nation in the number of DNA exonerations.
TJP is calling for legislation that would improve the quality of eyewitness identifications and implement best practices for the administration of lineups. "This overall lack of sound scientifically-based policy indicates that the state of Texas must pass legislation that requires departments to adopt written policies that implement best practices for the conduct of eyewitness identification procedures," reads the report.
Those best practices involve four issues: eyewitnesses should be given a cautionary instruction – typically a warning to the witness that the perpetrator of a crime might not be included in the lineup; police should take care with the lineup composition, making sure that each person included in the lineup generally matches the witness description of the suspect (a way to make sure that no one person stands out); police should use blind administration, to make sure that the investigator doesn't give overt or subconscious cues to the witness regarding which suspect to select (ideally, the lineup administrator would have no connection to the case); and police should fully document the lineup – if not with the use of video cameras, police should at least be sure to ask a witness how confident they are in their selection of a suspect, and should be sure to document those statements, prior to the witness being given any "confirming feedback," Edwin Colfax, TJP's director of statewide reform campaigns, said at a Capitol press conference Wednesday morning.
Amazingly, TJP received only 53 policies that required some form of cautionary instruction to be given to eyewitnesses (arguably, the easiest reform to implement); 69 departments provided policies regarding the composition of the lineup, but only 53 included best practices; just seven departments use blind administration – including the Richardson Police Dept., which is the leader in eyewitness identification reform in Texas; and just four departments "require full documentation of lineup procedures and ask for a confidence statement from the witness," reads the report.
Unfortunately, according to documents received by TJP researchers, APD is not currently in step with any of these best practices. The department does not require a cautionary statement, does not require documentation of the procedure (only a written statement of confidence, if the witness selects the police suspect), and does not use blind administration (the policy mandates only that "detectives will in no way aid witnesses/victims in the identification of a suspect," which ignores the possibility that nonverbal cues, or encouragement can be a problem in the identification process, notes TJP). While the APD does have a detailed procedure for the composition of a live lineup – providing for suspects that resemble each other, to cut down on obvious fillers or suspects – the department has no such policy for photographic lineups, which are used far more often.
APD has not yet responded to the Chronicle's requests for additional information.
Sen. Rodney Ellis, D-Houston, has already filed a bill (SB 117) that would require all law enforcement agencies to adopt written policies that reflect the best practices for lineup administration (and would have the Texas Commission on Law Enforcement Officer Standards and Education develop a model policy and "associated training materials.")
While the lineup best practices have been around for nearly a decade, says Iowa State University psychology professor Gary Wells, who has spent three decades studying eyewitness identification, they still have not been widely implemented. Nonetheless, when employed, solid eyewitness identification procedures cut down on the chance of misidentification – not only helping prevent wrongful conviction, but also helping police run more efficient and targeted investigations. Indeed, says Colfax, eyewitness identification is much like forensic trace evidence: "If it is not collected carefully it can be tainted and can be ruined." With the "status" Texas now has as the leader in the exoneration of the wrongfully convicted, "it is increasingly reckless to go on without standardizing this type of police work." And implementing these basic reforms is also an easy way to return a modicum of integrity to the criminal justice system, Wells told members of the state's Criminal Justice Integrity Unit last month. These procedures instill "confidence back into the system because it removes [the system] as a contributor to mistaken identification," he said. "And it is now a contributor."