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[Music] [Applause] hi there I'm Ron right I teach here at Wake Forest University at the Law School and we're gonna talk about a critical Criminal Procedure topic when it comes to the accuracy of the system the question for us today is how do you get accurate meaningful identifications those times when a witness says that's the guy that's the person who committed the crime sometimes they're right sometimes they're wrong how do we sort out the correct identifications from the incorrect ones will survey the different legal strategies that we have for identification procedures let's go in and talk okay folks let's get started we're talking about identifications in Criminal Procedure and the different strategies that we pursue to make sure that those identifications give us good solid accurate evidence now we've done a really bad job of this over the years because it's turned out that we are discovering things about wrongful convictions and when you dig into these wrongful conviction cases these cases where DNA evidence comes along later and proves that this person that we convicted it was the wrong person we got it wrong and then we do a autopsy essentially of the case and saying mmm what went wrong with this case how did we get here and the answer is all too often we depended an awful lot on the on the eyewitness testimony of somebody saying that's the person who did it and then it turned out that that testimony was wrong the person wasn't lying it wasn't evil it was you know that they were giving their very best effort at identifying the person but they were wrong so how can we how can we respond to these errors first first of all you got to know something about the source of the errors where does it come from psychologists love to study this topic they love to tell us about how our memory of watching an event is possibly flawed and those flaws can happen at several different moments along the way there's the acquisition stage when we first acquire the memory and we might get some kind of inaccurate memory right from the start perhaps it's too far away perhaps it's too dark perhaps I'm completely terrified of a threat somebody's pointing a gun at me there are all kinds of reasons why I might not be at my best as I am acquiring the original memory and then there's the retention stage how long do I have to remember this thing before I can tell somebody about it and generally speaking this plays out in a curve that is I remember a lot within the first hour or two if I'm recounting this after that initial period a lot of the details are gone a lot of my ability to recall the event is is wiped out so the speed of talking to the witness is a big factor in knowing how much detail is there and how accurate or at least how close to the original memory the the the later description is so there's the acquisition stage the retention stage and then there's what we call the retrieval stage the moment when I have to go into my memory and pull it out to give my accounts of the event and you can also get some errors at that stage so it might be that the police are suggesting to me the answer that they want to hear or it may just be then it's been too long or that there is something distracting going on in the room while I'm trying to give my account there are various ways that at the moment of retrieval I can introduce new errors into the into the memory that I'm providing for the for the investigation so this is our challenge we know we're messing up we know that these I did eyewitness identifications are very often right but too often they're wrong we know something about the various ways that they can go wrong at the acquisition stage and the retention stage and the retrieval stage what do we do about it we've got several different strategy legally speaking the earliest one was we turn to lawyers there was a time in 1967 where the US Supreme Court said in a case called United States versus Wade I think he was Billy Joe Wade the court said you know we're gonna we're gonna fix this problem of improper identifications by putting a lawyer present there at the police station when the witness is identifying somebody in this particular case Wade was being put into something called a lineup you've seen these in movies where you put people against a wall they're all lined up together and then the person says number three it's number three who did this that kind of live lineup happened in Billy Joe Wade's case but as they were making as they were assembling it the suspect was being showed into the room back behind the one-way mirror and and while he was going while the witness was being ushered into the room the witness spots Wade down the hall being held by the police and it sort of suggests ah that might be the guy so anyway it was a poorly constructed lineup the court says you know you should have had a lawyer there because this is such a critical moment in the investigation it's already this is already he's already been indicted the charges are present so the person gets a lawyer and this is a critical stage in the proceedings this is really the whole case make or break whatever happens later at the trial is just nothing compared to what happens at this moment when the witness says yes or no that's the guy and so you got to have a lawyer there during this critical stage of the criminal proceedings but that's about as far as it ever went in terms of strategy number one the lawyer strategy because the sixth amendment only applies to cases when they're already a criminal case most of these investigations happen before the charges are filed and so you don't get a lawyer once the you know before the charges are filed you also don't get a lawyer if it's post indictment if the charges have already been filed but the police instead of having a live lineup they just show pictures to the to the witness showing pictures again the court has said that's not the kind of thing where a lawyer can really add value it's not like a conversation like an interrogation like under Miranda an interrogation of the of the suspect by the police so this photo lineup just showing one picture at a time or whole set of pictures we're not going to require a lawyer to be present there for that either so this initial strategy put a lawyer in the room didn't turn into very much at all it only happens for those post-indictment live lineup situations and if you think about it well what's a lawyer gonna do I mean you can insist that hey wait a minute my guys the only one wearing a red shirt everybody else is wearing like white shirt or my guy is the only person with long brown hair and everybody else has short blonde hair but apart from that you know there's really not that much for the for the lawyer to do so court went looking for other strategies one possible strategy was just to after the fact after the actual identification happens a judge will decide whether it was reliable enough to come into evidence this happens under the due process sort of general fairness clause of the the Constitution and courts are willing to do this so they asked two questions first of all they asked was the identification procedure suggestive or unduly suggestive like is the police officer saying take a really good look at number three if the if this somehow the police are conveying to the to the witness that's the guy then you've got an unduly suggestive line up one of the famous cases here is called Stovall Stovall the denno from 1967 where this where the suspect was had been injured during a fight and was handcuffed to a hospital bed and the witness is brought in and says see that guy handcuffed to the hospital bed is that the guy and the witnesses yes so the cord ends up saying that's the kind altum Utley they that confession in but because it was because the police didn't really have alternatives but that has been the paradigmatic the classic suggestive procedure anything that really points to a particular suspect at the moment of retrieval the court says that's suggestive and when that happens we have to ask whether other factors make the identification reliable enough to overcome the suggestiveness of the of the process so the court in a case called Neal versus Biggers from 1972 gave us five different factors that the courts are supposed to think about as they ask whether this is a reliable into a reliable identification or not so they asked about the opportunity of the witness to view the crime you know was it dark was it light was it far away was it close second the degree of attention of the witness where they really focused on it or where they just happened to see it out of the corner of their eye third the accuracy of any prior description that is is the person pretty consistent over time and what they describing what they described as happening fourth level of certainty of the witness how sure do they sound and then fifth the length of time between the crime and the actual identification not all of those factors turn out to be scientifically very very valuable in particular the certainty of the witness is a lousy factor people who have all these psychologists who have studied this over and over again have shown that there really is no correlation at all between certainty and accuracy and we know this from life people who are really sure of themselves and they're wrong about as often as people who are unsure of themselves so that's a that's not a very scientifically grounded factor there are a number of state courts that have said when we're reading our state constitution rather than the federal due process clause we'll change those factors and create something of a higher burden for the for the government to prove the reliability of their of their identification processes so we've got some debate going on in the courts about exactly how to apply these five factors and whether to sup than with other factors that produce better greater you know greater reliability in the in the identifications but at the end of the day the judges just don't very often knock these things out it's a you know defendants lose a lot more of these motions than they win judges are quite reluctant to do this they're willing to just pass it along to the jury and let the attorneys argue about how how reliable the with the eyewitness testimony was or was not what's been interesting in recent years once we've started to get all of this DNA evidence about wrongful convictions and the linkage to improper or inaccurate identifications what's happened interestingly is not so much a change in judicial doctrine or constitutional doctrines instead what has happened is that other institutions have gotten involved so for instance sometimes legislators are passing laws saying this is how you have to do a photo lineup and they specify all right the person who administers the lineup should not be the police officer who's investigating a case it should be double-blind so that the officer administering the test doesn't know do I hope number three is the person or number four is the person I have no idea I'm not one of the investigators I'm just here to present the pictures so the the legislation North Carolina is one example of this says in a photo lineup the officer shouldn't ordinarily be somebody involved in the investigation you should present the pictures sequentially I'm going to give you six pictures here's number one yes or no take it away here's number two yes or no here's number three so you just go through and sequentially ask the suspect you should also assemble photos that are of course reasonably similar to one another so that you don't have one photo that you know sort of obviously stands out as the as the suspect they should all roughly look alike but you should pick photos based on the witness's description of the perpetrator not explicitly trying to match or get similar pictures to the one that you think is the suspect so you match your photos to the witness's description and you hope that you have reasonably similar pictures at the end of that process so some legislators have gotten into the act and said this is really the best practice for for these identification procedures and so you should do it this way and that'll cut down on the errors another important institution that's gotten involved here is state attorneys general the sort of lead prosecutors or other sort of management level law enforcement officers have gotten in and said you know we need to clean up our own house here we need to make sure that we are using the proper procedures the best practices so they put out manuals or in some cases rules for led for investigators to follow that are you know internal to the department or internal to the to the justice system so we have sometimes prosecutors themselves or law enforcement officers themselves saying this is the sort of quality standard that we're aiming for for these very important but high risk forms of evidence and then finally one last strategy in addition to the well let's list what we got so far we've got the bring in a lawyer strategy the sixth amendment strategy we've got the judge watching for fairness watching for suggestive procedures and whether or not they're overcome by the reliability factors the due process inquiry then third we've got the we've got the legislature getting in and proposing best practices or requiring best practices from law enforcement fourth we've got law enforcement itself creating these rules for best practices and then finally we've got the trial itself at the you know at the end of the process if you've got an identification from out of court you have to bring that identification in and say okay witness did you see you know what happened did you see who did it yes I did is that person here today yes he is he's that man sitting there you know pointing to the defendant at the defense counsel table but then the Defense Council gets to stand up and say let's talk about when you first identified you know this person as the perpetrator you know how many photos were you shown and you know how long had it been since you had seen and was it dark out that night and so the defense attorney gets to point out to the jury all the different reasons why you might be worried about the accuracy of this of this testimony that's what trials are designed to do so to some extent the adversary process still is there to weed out some of the weaker we hope as many as possible of the weaker in accurate identifications sometimes juries need some help and so we've got litigation where in addition to the defense lawyer standing up and cross-examining sometimes the judge will allow an expert witness to come in and explain to the jury the kinds of identifications that are especially hard you know far away at night gun pointing at me there's a phenomenon called gun focus that says if there's a gun pointing at you you're not that likely to remember other details of you know who was holding the gun so expert witnesses can come in and explain this kind of of psychological difficulty to the to the jury in some cases it's still somewhat rare because it's sort of expensive not that many experts available but it's something that is being litigated lately or occasionally instead of an expert witness the defense asks for an instruction to the jury from the judge where the judge says okay jury you're going to think about this case but remember be very careful with identification evidence it can go wrong very easily sometimes we have state court cases that say particularly in a cross-racial context where a person if one race is trying to identify a person of another race and that turns out to be somewhat more challenging than intra race identifications and so there are some states that now say to their trial judges if you got across racial identification you should instruct the jury that they need to be especially careful there and think about the special difficulties of that so we have all of these strategies going on at once obviously it's still going to be imperfect we're gonna have to be monitoring this over time because we've gotten it wrong so often we need to be on the lookout for other strategies because ultimately at the end of the day what we're after here is truth what we want is getting the right person these strategies combined contribute to that perhaps not enough but we're on our way see you next time [Music]