The case of four West Sacramento teenagers and one adult who allegedly attacked, robbed and assaulted a passerby in the late night hours back in January, 2011, turned when the defense’s expert, Dr. Geoffrey Loftus, testified about the impact of human memory on eyewitness identification.
Prior to the work of the Innocence Project, eyewitness accounts were considered critical pieces of evidence for convictions. But we now know that eyewitness misidentification is among the leading causes of wrongful convictions across the nation.
Writes the Innocence Project, “The human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.”
That is precisely the problem that occurred here. The police failed to do a six-pack line-up, where the victim would be tested to pull the suspect out of a comparable group of non-participants. Instead, they brought the victim to the suspects, one by one, with the only precaution being an admonishment read that the witness should not view the mere fact that he was being brought to these individuals as evidence that they did it.
Indeed, the admonishment rightly points out that it is just as important to exclude innocent individuals from consideration as it is to name the guilty.
The issue of the admonishment came up recently in another trial, where the identifications were not nearly as uncertain as they were in the West Sacramento case that ultimately saw three of the defendants outright acquitted, and two juveniles convicted of a single lesser charge and remanded to juvenile court.
The question we sought out was whether field admonishments are used in jurisdictions other than West Sacramento, and whether they work in reducing wrongful convictions.
To determine that, we talked with Maitreya Badami, a criminal defense attorney for 16 years prior to joining the Innocence Project at Santa Clara University two years ago.
According to her, research shows that “admonishing a witness that the suspect may or may not be present reduces the number of wrong guesses without apparently reducing the number of correct IDs.”
To compare West Sacramento’s field admonishment, the Vanguard requested and received the field admonishment from the Davis Police Department.
We asked Maitreya Badami to evaluate both of the field admonishments, which she said were very similar.
“It covers some of the things that are the most important,” she said. “They both covered two things that are important. This may or may not be the perpetrator of the crime, you shouldn’t feel pressured to identify someone and you shouldn’t discuss it with anybody else. Those are really important admonishments.”
Her one reservation was the West Sacramento admonishment used the word “suspect” while Davis uses the term “person.”
“The only qualm I would have in either of these two would be the use of the word ‘suspect’ which is, you know, it’s just not favored because… it does sort of cast a guilty [term] on the person by already saying that they are a ‘suspect,’ ” she said.
However, she added that the term “suspect” is regularly used, “it’s used throughout the California POST screening manual.”
“So the department that has a better admonition is the one from Davis, [which] to me it sounded better than POST requires, frankly,” she added.
The Vanguard spoke with Sgt. Nathan Steele, the current Police Information Officer at the West Sacramento Police Department, and Lt. Paul Doroshov, who occupies that position at the Davis Police Department.
Both indicated that the field admonishment is nothing new. Sgt. Steele indicated that it has been in place for at least twelve years.
“Law enforcement agencies utilize an infield admonition to ensure that witnesses understand the importance of not only identifying suspects but also in excluding those that aren’t involved,” Sgt. Steele told the Vanguard. “In addition it stresses the importance of stating if they are uncertain about the identification.”
As Lt. Doroshov explained, “What we’re trying to avoid is the initial question of was the ID unduly restrictive.”
According to Sgt. Steele, the admonishment is used during an ongoing investigation.
“Often a subject will be contacted by police and match the description of a wanted individual. In order to ensure a proper identification is conducted a witness will be transported to view the subject,” he explained. “Prior to viewing the subject the witness is advised of the Infield Admonition. The purpose of the Infield Admonition is to ensure a proper and consistent identification procedure is followed.”
But there are risks involved in these kinds of show-up procedures.
As Dr. Loftus explained during his testimony, post-event information can contaminate the memory of an individual. Because a person’s memory is not like a videotape, but rather a string of small pieces of information that the mind binds together to form a more coherent account of a past event, the person may rely on information that they received after the event to enhance the memory and make it seem more real.
This becomes important, as well, in the case of a “show-up” identification, where the witness is confronted with a suspect. The witness, believing that this suspect was involved in the crime, may actually subconsciously alter his recollections to reconcile it with current information. This information may be used to fill in gaps in the person’s actual memory.
Because this process works subconsciously, there is a tendency for witnesses to express a high degree of confidence in their identification, when, in fact, it is based on completely false post-event information.
Police field identifications do attempt to protect against these potential problems.
For instance, Sgt. Steele told the Vanguard, “As with any type of evidence our officers will always try to corroborate evidence.”
“For example if a subject is positively identified in an infield show-up they would still attempt to gather additional evidence linking the suspect to the crime. An infield show-up is just one tool although a very valuable one, utilized to both identify suspects and exclude those not involved,” he added.
As Lt. Doroshov noted, “To me, the field ID is just another tool in the long list of things that is happening in an investigation.”
One of the points that the defense will often focus their attention on is the difference between a show-up identification, where the individual is walked up to a potential suspect for identification, versus a six-pack line-up, where they have to pull the suspect out of a number of different photos.
“An infield show-up and a six-pack are generally used under different circumstances. Infield show-ups are conducted when events are unfolding in the field with an investigation,” Sgt. Steele told the Vanguard.
He added, “Officers must be concerned with the rights of the subject being detained in regards to a prolonged detention, etc. Therefore an infield show-up is the most expeditious means of determining their involvement.”
Timing is also a factor, as Sgt. Steele notes, “A ‘six pack’ is often used when a potential suspect has been identified through an investigation and officers or detectives have the time to develop a six pack. ‘Six packs’ are predominantly used by Detectives who have the time to develop them.”
Lt. Doroshov explains that show-ups often occur in a close time frame to when the crime was committed and you want to quickly be able to rule out whether the individual in custody is or is not the person who did the crime.
“So they have a witness, or a victim is available and it could be that person may help them make that decision,” he said.
But field show-ups can be suggestive. Some of that is unavoidable.
“Obviously that person is going to be detained so it’s going to be the officers to surround them. They are going to be close to a squad car generally,” Lt. Doroshov noted.
Police officers do take precautions, they try to take them out of the squad car, but in custody and surrounded by police is certainly suggestive. The field admonishment is at least a tool whereby the police can convey to the witness that it is at least possible that this is not the person who they saw committing a crime.
Maitreya Badami noted, “The show-up has been identified, sort of uniformly by court as the most, the most suggestive procedure for all the obvious reasons, all right.”
The problems are clear.
“There is no one else to compare the person to. They are usually in a somewhat suggestive position surrounded by police, in a car or handcuffed or what have you,” she said. “So there are a lot of factors that make them more suggestive.”
On the other hand, field show-ups are generally done fairly quickly after a crime is reported and so the memory “hasn’t had really an opportunity to degrade and so people are usually pretty good at being able to recall whether or not that is the person when it’s quick.”
“I’ll tell you what, at some point it starts to shift in the suggestiveness really starts that way admonishment of being able to do a show-up. There should be proper admonishment that the person might not be the suspect, that they shouldn’t feel pressured to identify someone,” she continued.
However, unlike the police, the Innocence Project has a clear preference for techniques.
“The reason why we prefer things like a line-up is because they can be done blind,” she told the Vanguard.
In fact, they prefer a different police officer used to create the photo spread so that the officer administering the test does not know, either.
“So a blindly administrated line-up or sort of spread means that the person showing the pictures or showing the live people to a witness doesn’t know who the police suspect,” Ms. Badami said.
One of the keys to making sure a field show-up is done correctly is to get as much information about the perpetrator prior to the identification.
As Ms. Badami said, “The science suggests that you should have a complete description of the perpetrator and you can before you do any kind of identification procedures so that it’s documented.”
The question is whether that happens.
“The policy that you have, that doesn’t tell me for sure whether or not Davis or West Sac actually does train their officers to take down a complete description first,” she said.
That was one of the problems in the West Sacramento case. Due to the dark conditions, the victim was unable to provide details to the police about the perpetrators and so when it came to identifying them at the scene, many of the perpetrators were identified based on clothing or other details that could have been post-event information – such as spotting a design of the pant legs, or wrongly identifying a suspect by his boots, failing to note the long hair of several of the suspects, etc.
One of the only people that was convicted wore a distinctive Michael Jordan jersey. The only other conviction was due to that individual being caught with some of the victim’s stolen property.
Sgt. Steele made it clear, “Officers are always attempting to gather additional information that would assist in the identification or elimination of potential suspects.”
The West Sacramento case would have been particularly difficult, given the dark conditions and the lack of ability of the victim to identify key features of his assailants.
One of the key questions is whether the field admonishments have improved the accuracy of field identifications.
For Lt. Doroshov, he was uncertain, stating, “I really can’t speak to it because for me to say, in my mind to tell you yes or no on that I would actually have to see some kind of scientific studies that say that is happening or not happening.”
However, Sgt. Steele feels that it is effective.
He told the Vanguard, “If your question is do I believe that identifications made in the field with an admonition utilized are more accurate than prior to the use of admonitions, then yes this is my belief.”
“Witness I.D’s are just one component of a thorough police investigation. We always endeavor to ensure that the suspects who have committed crimes are properly identified,” he added.
One thing that Sgt. Steele disagrees with Ms. Badami on is the use of the term “suspect.” While Ms. Badami felt it was overly suggestive, Sgt. Steele disagreed, “We feel that the term ‘suspect’ is appropriate in this setting.”
—David M. Greenwald reporting
[quote]That is precisely the problem that occurred here. The police failed to do a six-pack line-up, where the victim would be tested to pull the suspect out of a comparable group of non-participants. Instead, they brought the victim to the suspects, one by one, with the only precaution being an admonishment read that the witness should not view the mere fact that he was being brought to these individuals as evidence that they did it.
Indeed, the admonishment rightly points out that it is just as important to exclude innocent individuals from consideration as it is to name the guilty.[/quote]
So were the defendants found not guilty acquitted specifically bc a six-pack line-up was not done? Is that what jurors said was the reason?
Excellent story that combines the “big picture” and how the issues are being handled at the local level. I trust that juries no longer will convict on a single connection–an eyewitness report, a confession, a DNA report even.
After all the research, we need to require a perfect storm of more than one appearance of guilt to get to “guilty” beyond reasonable doubt. And, once authorities have one of these, it should lead them to corroborating evidence.
Even with these changes, the system never can guarantee that juries always make the correct judgement. Hence, the need to stop executions and the killing of innocent people.
West Sacramento misspelled judgment.
Elaine: Not specifically, but having a better line up procedure would have bolstered their case. But I suspect that had he been given a six-pack, he would not have been able to identify them at all.
To dmg: That is what I thought – it is just your guesswork, not substantiated by any actual facts.
I would surmise had the six-pack line-up been done, and had the victim not been able to identify his assailants, the case against these defendants would have had even less chance of succeeding. So as a police officer, what do you do? You know in your heart of hearts these juveniles did it, but your case is weak bc the juveniles in question took advantage of the dark when they perpetrated the assault. And it is legal not to do a six-pack line-up. Are you advocating the police do a six-pack line-up anyway, even if it weakens their case which it was almost certain to do?
From a policeman’s perspective, they may have all sorts of evidence that rises to the level of “more probable than not”. So the question is, do they do everything in their power to weaken a case, just so they say they did everything they could to prove the defendant innocent? Is that what you are advocating? I’m trying to understand your position here…
“not substantiated by any actual facts. “
You mean other than the facts of the trial that I actually watched, unlike you? The major issue in the trial was the identification of the suspects and the defense was able to punch huge holes in the id.
“So as a police officer, what do you do? You know in your heart of hearts these juveniles did it, but your case is weak bc the juveniles in question took advantage of the dark when they perpetrated the assault. And it is legal not to do a six-pack line-up. Are you advocating the police do a six-pack line-up anyway, even if it weakens their case which it was almost certain to do? “
I’m not advocating anything other than reporting on this issue. The police and lawyer at the innocence project explained the strengths and weaknesses of the show up versus six pack.
“You know in your heart of hearts these juveniles did it”
I have a real problem with that statement. They may have believed that the juveniles did, they may have suspected that they did, but they did not know nor could they prove that they did it. The juveniles had the right to the presumption of innocence and if the more precise line up technique would have led to no identification, then so what? Either you find evidence that they did it or you let them go.
BTW, Elaine, I should add, it likely would not have been immediately clear just how weak his identification was. You statement implies it was driven by considerations of strength of evidence, when I think it was more driven by the timing of the arrest and availability of the victim immediately, as the police explain in the interview.
[quote]You mean other than the facts of the trial that I actually watched, unlike you? The major issue in the trial was the identification of the suspects and the defense was able to punch huge holes in the id. [/quote]
No, no, no. What I am saying is that you do not know for sure that the lack of a six-pack ID had anything to do w this case. I would guess just the opposite – had it been done, the victim wd not have been able to identify anyone, thereby weakening the prosecution’s case.
[quote]They may have believed that the juveniles did, they may have suspected that they did, but they did not know nor could they prove that they did it. The juveniles had the right to the presumption of innocence and if the more precise line up technique would have led to no identification, then so what? Either you find evidence that they did it or you let them go.[/quote]
I have to believe, from the above statement, that you believe the police should be required to do six-pack IDs no matter what, in every case, just to make sure the defendant is the right party? Have I got that right? Or just in this case it should have been done, and if so why this case if it was not legally necessary?
What I am driving at is all of this is a balancing act. The police make judgment calls all the time on what evidence to collect, how far to go in seeking evidence, etc. There is not requirement that they seek out ways to damage their case. In the case you cited, I’m not sure that it shows what you want it to show. IMO that case stands for the proposition the perps got away bc they chose to assault their victim in such a way as to minimize their own identification…
[quote]BTW, Elaine, I should add, it likely would not have been immediately clear just how weak his identification was. You statement implies it was driven by considerations of strength of evidence, when I think it was more driven by the timing of the arrest and availability of the victim immediately, as the police explain in the interview.[/quote]
Again your opinion, but since you cannot get into the mind of the officer, you really don’t know for sure. Nevertheless, the interesting question raised here is how far do you think the police have to go in testing their evidence to show the defendant innocent?
Or perhaps to put it a different way, should field show-up IDs be allowed at all? Should only six-pack line-ups only be allowed? Why or why not?
One of the questions I had going into interviewing the department and also the innocence project was the impact of the admonishment. The secondary question is whether the show up is ever reliable enough even with an admonishment.
The innocence project has their opinion. The police have theirs. I think the manner in which the field show up was conducted in the example case was a huge problem that left the jury with too many questions. The fact is the guy failed to identify several of the suspects by sight and only identified by clothing (some of which he got wrong as it turns out).
The police don’t have a responsibility to necessarily test their evidence, they do have the responsibility of insuring that the wrong people were identified. It’s not clear that they got all of the right people.
“Or perhaps to put it a different way, should field show-up IDs be allowed at all? Should only six-pack line-ups only be allowed?”
I haven’t seen enough data to say, there are problems with line ups as well that have contributed to false positives.
[quote]The innocence project has their opinion. The police have theirs. I think the manner in which the field show up was conducted in the example case was a huge problem that left the jury with too many questions. The fact is the guy failed to identify several of the suspects by sight and only identified by clothing (some of which he got wrong as it turns out). [/quote]
But was the problem with the line-up, or was the real problem that the assault took place in the dark, and no matter how the line-up was conducted, the victim probably never could have identified the suspects? What exactly is it that you feel the police did wrong in this case? I’m just not getting your position…
If the suspect goes to trial, does the jury get to see a photo of the six-pack group from which a witness or witnesses identified the suspect?
It a witness reports to police the suspect was tall before viewing the six-pack; and the six-pack consists of 5 short guys and one tall guy; a different result may be obtained than if all six are tall. etc. etc.
It would seem there is a real art and science to picking individuals for a six-pack within which the prime suspect is placed. Presumably there are some general guidelines?
How about balancing out the “Innocence Project” with the:
(1) ‘Find out whether or not he really did it” project
(2) “Root out the guilty” project
(3) “Guilty Guilty Guilty” project
“Presumably there are some general guidelines? “
There is actually a big story from last year about how for years they did not have guidelines for line up procedures
From my brief research, it appears there are not a set of legislatively enacted guidelines for photo line-ups, but recommended guidelines that a lot of jurisdictions/police departments do follow. However, it appears completely voluntary as to whether a particular jurisdiction/police department follows the recommended procedures. See the following link to the recommended guidelines:
[url]http://www.psychology.iastate.edu/~glwells/California_commission.pdf[/url]
One of the recommended guidelines is that all people chose for the line-up look similar to the description provided by the victim or witness…
Elaine
Excellent link. I would especially highlight the following paragraph:
One California County has adopted a lineup protocol requiring double-blind and sequential identification procedures.6 The Commission learned from Deputy District Attorney David Angel of the Santa Clara County District Attorneys Office that under the leadership of District Attorney George Kennedy, all law enforcement agencies in Santa Clara County agreed to the protocol without dissent, and the protocol has been successfully implemented for nearly four years without complaint.
For years we have known in medicine that prospective, double blind ( studies in which neither the participant or the researcher knows who is receiving the real drug and who is receiving identical appearing placebo)!provide the most objective evidence of efficacy and safety. I would think that the same standard would certainly apply for line-ups and should be the standard everywhere.
Elaine you may want to take a look at the New Jersey Supreme Court decision; link ([url]http://www.innocenceproject.org/Content/NJ_Judge_Calls_for_Overhaul_of_Eyewitness_Identification_Standards.php[/url])
To dmg: link did’t work…
To medwoman: I would think it would be in the prosecution’s best interest that law enforcement adopt such procedures, as it would make for more solid evidence to back up cases the prosecution brings/less chance for mistakes…
Try this: [url]http://tinyurl.com/8yg9mbf[/url]
I’m not sure what the link has to do with this discussion. Your link talks about eyewitness testimony unreliability in general. The link I referred to gave very specific suggestions for making six-pack photo line-ups more reliable/less suggestive. My problem with all of this is none of it is made MANDATORY, but is strictly voluntary as to whether such safeguards are implemented.
When my son was beaten in West Davis, he was given a six-pack photo line-up by a Davis police officer and had no problem identifying his assailant. All the possible suspects looked very much alike, and the officer was very professional in how he presented the photos. All photo-IDs should be handled in this way…
The link should have had a link to the New Jersey decision which lays out the first protocol for addressing the problems. I wrote a story on this a few months back as well.
Elaine and medwoman,
Thats good info on the recommended guidelines and on the double-blind approach.
I guess following such guidelines and approaches might be some significant expense…
Certainly worthwhile for serious felonies.
If I was on a jury, I would want to be filled on on exactly how the witness(es) identified the suspect(s),
including seeing good photos of the lineups that the witness saw.
I might have a hard time determining which one did it if I got mugged by one of the Olson twins…
Jimt
Regarding increased costI see your point, but suspect it could be minimized since in the case of a line up it would only mean a temporary exchange of duties so that an officer with no experience with the case would be present in lieu of involved officers, presumably freeing them up for other duty. I do not see it as requiring additional staff to implement. Also, with less room for identification error, I suspect you might see a decrease in challenges or charges of false or misleading identification testimony. Might be worth looking into the cost in Santa Clara to see how their pre and post implementation costs played out.
I suspect (altho I don’t know for sure) cost concerns are negligible when all factors are taken into account…
medwoman and ERM,
Thanks for your responses, I was thinking the logistics of getting the line-up together at the same place at the same time might be expensive; but on further thought I guess this isn’t necessarily the case. In my view, for serious felonies, even significant extra cost is worthwhile to do the suspect ID procedure in the best way possible.