Mark Larson

1. Mark Larson Chief Deputy Prosecutor King County Prosecutors Office Seattle, Washington mark.larson@kingcounty.gov

2. Eyewitness IdentificationandCritical Case Analysis

4. Legal Standard For Eyewitness Evidence? Was the identification procedure so suggestive that there is a substantial likelihood of misidentification -Manson v Braithwaith

5. Law and Eyewitness Science:The Old School • Estimator Variables • Weapon Focus • Stress Effect • Cross-Racial Identification • Unconscious transference • Confidence/Accuracy Correlation

6. Prosecutor Response • Common sense (“not helpful to the jury” ER 702) • Not relevant to particular case • “Generalization” Issues: can research fairly be applied to real world crime?

7. “In the majority of cases, given the absence of DNA evidence at the trial, eyewitness testimony was the most compelling evidence. “This points conclusively to the need for improved criteria for evaluating the reliability of eyewitness identification

9. “System Variables” • Applying research to methods used by law enforcement in constructing and conducting line-ups and montages

10. Key Recommendations • Limit “relative judgment” in selection • Blind administration of montage/lineup • Selection of fillers/Shills • Limit “confidence boosting” • Improved interview techniques

12. Relative Judgment(vs. absolute judgment) Key Recommendations: 1. Sequential viewing 2. Instruction: culprit may not be present

13. Blind Testing • Eyewitness evidence = “trace evidence” • Avoiding “contamination” • Eliminate verbal and non-verbal cues • Assumes good faith

14. Blind Testing (2) • Blind Testing - • Line-up/montage = scientific experiment • Witness is “blind” • Investigator is “blind” • Avoids unintentional cues (body language, tone of voice) that could impact witness

15. Selection of Fillers/Shills • Select fillers that generally fit the witness description. • Caveat: If suspect differs significantly from description, fillers should match suspects’ significant features. • No “clone” line-ups (match to suspect) • Blank Testing - “Anyone Stand out?”

16. The eyewitness described the perpetrator as a 18- to 22-year-old white male with brown hair and no facial hair. 82

17. Avoiding Confidence Boosting • Ask about witness certainty immediately after any suspect is selected in ID procedure • Avoid communicating information to witness about suspect/selection • Document the process and certainty

18. ISSUES WITH NIJ GUIDE • Lack of Field Studies supporting recommendations • Refusal to conduct Pilot Projects • Promised validations studies never happened • Research on Sequential kept shifting • Losing correct IDs vs. reduction in false IDs

19. ILLINOIS STUDY - 2006 • Who: Chicago, Joliet and Evanston • What – Compared sequential and simultaneous in the field • RESULTS – 15% FEWER ID’S AND INCREASE IN FALSE POSITIVES.

20. ILLINOIS AFTERMATH: RESEARCHERS • Researchers: • Study methodology attacked • Promised more research to demonstrate superiority of Sequential method

21. ILLINOIS AFTERMATH:LAW ENFORCEMENT • Law Enforcement • Many used results to highlight flaws in Guide. • Justification to resist all reform.

22. NIJ POSITION2007 • NIJ implementing “multi-site field experiment on eyewitness evidence to examine effectiveness and accuracy” of eyewitness evidence gathering techniques. • See article/overview at NIJ Journal, Issue 258 (www.ojp.usdoj.gov/nij)

23. American Judicature SocietyTesting Simultaneous vs. Sequential Lineup Methods2011

24. AJS preliminary results • Simultaneous Procedures • 25% suspect identifications • 18% filler identifications • Sequential Procedures • 27% suspect identifications • 12% filler identifications

25. AJS Critque • Only “Initial Report” released • Data not released • Usual suspects conducted study • 3 of 4 jurisdictions dropped out • 358/855 photo lineups eliminated (protocol errors)

26. Sequential vs. Simultaneous?An Open Question • See Police Chief Article • Case has not been made by social science • Protocols are still muddled • May end up being proved superior

27. PERF Survey of LE (03-13) • 65% had no written policy for Photo lineup • But most trained on ID procedures • 85% do use cautionary instruction • Only 40% have standardized instruction form • 70% use non-blind administrator • 75% document witness certainty • 38% use sequential presentation

28. National Trends in Eyewitness Evidence Legislative efforts to dictate Eyewitness practices Court mandated reforms New standards for admissibility Jury instructions and presumptions

29. Prosecutors Choice • Play Defense against Innocence Project, ACLU, Courts and Legislators • OR • Go on the offense

30. Number 1 Standards and training to improve eyewitness interviews (and others!) • “Cognitive Interview” techniques • to increase descriptive information • Useful in all cases involving memory and recall – not just eyewitness cases

31. Number 2 Standards and training for selecting fillers • Minimum of 5 fillers • One suspect per lineup • Standardized Photos (DOL) • None should stand out (blank testing) • Match to description

32. Number 3 Standard instructions to all witnesses • Suspect “may or may not be present.” • Administrator does not know the identity of the suspect • Investigation will continue • Witness required to sign the lineup/montage instructions as well as the pick/non-pick

33. Number 4 Training to reduce/eliminate influence on witnesses during montage/line up procedures • including blind administration where viable • New York Method hybrid

34. Blind Administration • Research is muddled about advantage • Intuitive appeal and jury can appreciate it • Recommendation: • Do it where practicable and when it matters most!

35. Number 5 • Document eyewitnesses’ comments and nonverbal reactions at the time they make an identification about level of certainty • If no comments made, invite witnesses to express level of certainty in own words. • Video recording where/when practicable

36. The Prosecutor’s Role • Dual Functions: • Advocatory role – attacking bad science/experts and asking jurors to convict on reliable eyewitness testimony • Investigatory Role – Critical analysis of the process, procedures and circumstances in which an identification was made

37. Prosecutors Critical Analysis • ID problems (that I can’t control): • Condition under which crime occurred (lighting, duration, # of witnesess, etc.) • Long delay from crime to lineup • Cross racial • Witness under 12 or over 65 • Multiple suspects involved • Offender has changed appearance since crime

38. Prosecutors Critical Analysis 2 • ID problems (LE could have controlled) • Match to description fillers – no one stands out • Proper instructions to witness • Effort to eliminate cues between LE and witness • Documented Statement of Certainty • Detailed documentation of entire process (Video is gold std.)

39. Red Flags • ID alone (no forensics) • Crime scene circumstances • Circumstances of ID unclear/poorly done • Presence of estimator variables (Age, cross racial, weapon focus, stress, etc.) • No corroboration (“weak” case) • Bad ID’s and Snitches seem to go together • Consistent innocence claim by suspect

40. Exonerating the Innocent • Prosecutors exonerate more people in a week than the Innocence Project will in a lifetime • Doing Justice = Doing our job! • Be cognizant of “tunnel vision” • Case against suspect = hypothesis to be tested

41. Pursuing Justice • Tough ID cases – • always be part of our job • Prosecutors Response/Duty • understand basics of memory, recall and eyewitness issues • Investigate and analyze before you advocate

42. mark.larson@kingcounty.gov