“Looking back” will feature reprints of articles that Jeff previously wrote while a columnist at The Westchester Guardian, which encompass topics that are applicable here in CA as well as across the country and not simply applicable to NY.
By: Jeff Deskovic
Misidentification is the leading cause of wrongful convictions. Many people would instinctively think that evidence in the form of a victim who got a look at the perpetrator would be a most reliable form of evidence. After all, wouldn’t they want the person who committed the crime against them to be apprehended? Yet DNA has shown that eyewitness identification is the least reliable of all evidence.
Out of the now 220 DNA-based exonerations, misidentification was the cause of wrongful conviction in 75% of the cases. In New York’s 23 DNA-proven wrongful convictions, 13 of them were caused by misidentification.
Factors such as the amount of time that a victim views the perpetrator, lighting, fear, and trauma, all may contribute to the unreliability of an identification. A short viewing period under stressful conditions, coupled with trauma, obviously is less reliable than a more prolonged viewing. Yet, a lengthy viewing offers no guarantee of accuracy. In the case of Ronald Cotton, who served 10 1/2 years in prison in North Carolina before being proven innocent by DNA, the victim, Jennifer Thompson Canino, viewed her rapist for quite a long time as she was being raped. Still, she misidentified Cotton, and did 
not even recognize her actual rapist, Bobby Poole, when she saw him, though he was proven such by DNA.
Psychological dynamics may also come into play. There is a concept in psychology known as schema, the theory that each of us has a notion about how things work. When confronted with a situation in which all of the details are not necessarily clear, the mind tends to draw deductions and conclusions to fill in the gaps, to complete the gestalt. This phenomenon is believed to take place frequently during attempts to recall what a perpetrator looked like when only sketchy details are available.
It is not that victims are lying; it can be difficult even to distinguish what they actually remember from memory as opposed to the filling in of missing details supplied by the mind. Misidentification not only takes place in a police lineups, but through a variety of other media, such as through photo arrays, ‘show ups’, and courtroom identifications.
The Innocence Project has reported working on cases involving misidentification, in which:
A witness made an identification in a “show-up” procedure from the back of a police car hundreds of feet away from the suspect in a poorly lit parking lot in the middle of the night; A witness in a rape case was shown a photo array where only one photo – of the person police suspected was the perpetrator – was marked with an “R.”; witnesses substantially changed their description of a perpetrator (including key information such as height, weight and presence of facial hair) after they learned more about a particular suspect; Witnesses only made an identification after multiple photo arrays or lineups – and then made hesitant identifications (saying they “thought” the person “might be” the perpetrator, for example), but at trial the jury was told the witnesses did not waver in identifying the suspect.
A ‘show up’ is defined as when a victim is brought to view a suspect who is being detained by the police by himself. This is one of the least reliable methods of identification, because a natural thought that most people will automatically have is that “Obviously, this is the person who the police believe committed the crime; otherwise they wouldn’t have him in custody.” It lends credibility and confidence to the identification, if only in the mind of the victim.
One of the more theatrical trial tactics that prosecutors use are in-court identifications. The prosecutors typically asks the witness, “And do you recognize the person in court today?” And, the victim invariably points to, and indicates, the defendant. Were the stakes not so high, it would be laughable. Everybody knows from television and the movies that the defendant sits at the table with the attorney who is not talking to the witness. Therefore, what is the probative value of such an identification in an attempt to determine guilt or innocence?
One of the most egregious cases of misidentification is the case of Anthony Capozzi, who served 20 years in New York for two counts each of Rape, Sodomy, and Sexual Abuse. He was misidentified by three people. The facts of his case are taken from The Innocence Project’s website: Biological evidence stored for two decades in a hospital drawer was the key to the 2007 exoneration of Anthony Capozzi, a Buffalo, New York, man who spent 20 years in prison for two rapes he didn’t commit. DNA tests in March 2007 showed that another man, Altemio Sanchez, actually committed the attacks for which Capozzi was convicted. Sanchez was convicted in 2007 of three other murders and is currently serving life in prison. Capozzi was charged with three similar rapes and went to trial in 1987. The rape victims told police their attacker was about 160 pounds – Capozzi weighed 200 to 220 pounds. None of the victims mentioned a prominent three-inch scar on Capozzi’s face. All three victims identified Capozzi in court as the attacker. He was convicted by a jury of two rapes and acquitted of the third. He was sentenced to 35 years. Biological evidence was collected from two victims in 1985 and stored in a hospital drawer. When the evidence was tested in 2007 at the request of Capozzi and his attorney, sperm collected during the rape examinations of both victims matched the profile of Sancehz – and proved that Capozzi could not be the rapist. Capozzi was exonerated and released from state custody in April 2007.
Clearly, there is a dire need for a variety of reforms in the area of identification. Those reforms include, but are clearly not limited to, the following
Sequential Lineups and Photo Arrays: Allowing victims to view suspects either in a lineup or photo array one at a time rather than all at once, would allow them to focus more on each person. In addition, when a person views multiple individuals simultaneously, they often try to identify the person who most closely resembles the perpetrator rather than trying solely to recall from their memory.
Resemblance of choices: In some of the wrongful conviction cases the defendant was misidentified because he stood out in some way or another. Perhaps he was significantly taller than the other people, or was the only one of a different race. When a person really stands out, it makes the lineup or photo array unduly suggestive and renders the identification virtually worthless.
Victims must be told that an investigation will continue whether or not they make an identification. This way victims won’t feel pressured to make an identification out of fear that the perpetrator will escape justice.
Victims must be informed that the perpetrator may not be in the lineup or photo array: This will prevent the victim from having undue confidence that their assailant is present. It will make them relax more, and will drive home the idea that the pool of potential suspects is larger than that which is gathered together, rather than causing them to focus only on those few.
The Double-Blind Method: The officer, or officers, conducting the photo array or lineup should themselves be in the blind as to who is suspected, so as to prevent inadvertent cues or clues from being given to the victim.
Videotaping the lineup or photo array: This would help ensure the integrity of each process and would facilitate the review process rather than its being determined by what the officers present are able to recall and testify to. It would also prevent important details from being left out.
Victim Confidence Statements:
Victims identifiers should be asked, following an identification, “On a scale of one to ten, how confident are you in your identification?” Hopefully, this will help put courts and juries in a better position to evaluate the accuracy and reliability of an identification.
In conclusion, misidentification has been the cause of many wrongful convictions and, as such, demands urgent legislation. In addition to the above suggested reforms, there are other considerations which legislators might think about.
Police officers who are dedicated to the truth and who want to do their job to the fullest, should refrain from congratulating a victim upon picking out a perpetrator, or, for that matter, making any comment on his or her perceived accuracy in selection. Such congratulation can only serve to reinforce a victim’s confidence in what, in fact, may be a misidentification.
At trials in which the principle issue that is being litigated involves whether or not an identification is accurate, it can be extremely difficult for a defense attorney, during cross-examination, to elicit from the victim their actual thoughts on the accuracy of their identification if, in fact, they have been bolstered by post-identification comments.
‘Show-ups’ should be banned, because a victim seeing a suspect in handcuffs and/or in a police car is clearly an unduly suggestive circumstance. Additionally, the practice of in-court identification should likewise be banned, because it is much ado about nothing, since everybody knows who the defendant is in a courtroom.
It would be easy for a witness to embark upon a similar line of thinking that all defense attorney’s must overcome with juries; essentially, the “common sense” thought; “Obviously, if he didn’t do it, they wouldn’t have arrested him for it.” In addition, by the time that a trial takes place, the defendant’s picture would have appeared on the news and in newspapers, further reinforcing the witness’s confidence in the identification that he has made.
According to The Innocence Project, the following jurisdictions have implemented the “Sequential Double Blind” as standard operating procedure: the State of New Jersey; Suffolk County, Massachusetts; Northhampton, Mass.; Madison, Wisconsin; Winston-Salem, North Carolina; Hennepin County, and Ramsey County, Minnesota; Santa Clara County, California; Virginia Beach, Virginia. Additionally, the states of North Carolina and Wisconsin have implemented the Sequential Double Blind method statewide.
While these jurisdictions are to be commended, the public-at-large should not have to rely upon voluntary adoption in order to have a more accurate criminal justice system. There will always be places refusing to implement them, just as right now there is only a handful of places that do voluntarily implement some of them.
Instead, we need lawmakers to take a strong leadership positions and to pass the necessary legislation. Until such reforms have been written into law, each and every citizen remains at risk of being misidentified, and thus wrongfully convicted.
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