In today’s Philadelphia Inquirer, nationally syndicated columnist Michael Smerconish wrote about the ground-breaking New Jersey case of Henderson and asked whether Philadelphia’s eyewitness procedures are sufficient to protect against an inaccurate eyewitness identification. In the article, Mr. Smerconish mentions conversations he had both with Philadelphia District Attorney Seth Williams and a representative from the Philadelphia Police Department. While everything said in the article is correct in terms of the practices in our city, what was unsaid shows that there is still a far way to go.
There are two main forms of eyewitness identification procedures for stranger on stranger crimes: photographic arrays and live lineups. The photo arrays (or photo lineups) generally are created by a police detective through a Commonwealth-wide computer system where thousands of arrest photos are stored. The detective will enter either the description from the witness or, if police have a suspect already, a description of the suspect. The detective can then choose the photos that most resemble each other. This is so that the suspect will not stand out in any particular way: by being the only one with a beard, or with long hair, or wearing a white shirt. According to Mr. Smerconish’s article, the Philadelphia Police Department believes there is “never a problem with fairness of the arrays because the computer picks people who look like the suspect.”
That is not the practice in Philadelphia; however, the city’s system has additional safeguards for defendants. For example, photo arrays are currently presented as a group of eight (not sequentially), but a Police Department spokesman said there was “never a problem with fairness of the arrays because the computer picks people who look like the suspect.”
Far from having “safeguards” in place, Philadelphia’s photo array method is out of step with modern police practices. And there is a major fairness problem here. What if the victim’s description is not similar to the suspect? What if, as in the case of Marshall Hale, the description by the victim is of a man who is 30-35 years old, 5’11” – 6′ tall, light-skinned African-American, weighing about 185 pounds but the suspect is 21 years old, 5’6″, dark-skinned and 140 pounds? How can a “fair” array be conducted with that situation? Do you pick photos to resemble the description, as social scientists suggest, or the suspect?
And fairness of the array does not even begin to address the problems with eyewitness memory and the very real possibility that a witness’ memory can be changed by “identifying” the wrong person. Best police practices suggest that a witness be given the following warnings before being shown an array:
* the person who committed the crime may or may not be present,
* police will continue to investigate whether they make an identification or not,
* it is just as important to clear the innocent as confirm guilt,
* they do not have to make a choice.
If these warnings are not given, the victim/witness may feel pressure to make a decision even if it is incorrect. Through a process described as “relative judgment” witnesses wind up choosing the perpetrator who most resembles the perpetrator if the actual perpetrator is not present in the array. By comparing one photo (or live person) to another, the witness’ memory of the event fades to be replaced by an image of the wrong person.
Showing a witness or victim photos one at a time also reduces the possibility of an incorrect identification while having absolutely no effect on correct identifications. In other words, if the perpetrator is in the array he will be identified. But the chances of an innocent person being misidentified drops off significantly.
But the most important practice of all is ensuring that the identification procedure is conducted by someone who does not know who the suspect is. In other words, that it is “blind.” This eliminates the possibility that the administrator of the procedure will inadvertently (or intentionally) give cues to the witness as to the “correct” person.
None of these practices exist in Philadelphia. Arrays are conducted by detectives who are investigating the case. They are created using a computer that searches for matches to the suspect, not the victim’s description. Witnesses are not warned before they are shown an array that they do not have to make a choice, or that the perpetrator may or may not be there. To be sure, some detectives do this on their own. But the Department has no written policies requiring universal array administration.
Now let’s look at live lineups.
“In Philadelphia, the detective that coordinates the lineups is not assigned to the case. He does, however, know who the defendant is, because in Philadelphia the defendant and his/her attorney pick the ‘fillers’ for the lineup. The detective explains the process to the victim and witnesses in the presence of a prosecutor and defense counsel; while doing so, he clearly states that the defendant may or may not be in the lineup. I don’t know how we would in practice conduct the lineups without the detective knowing who was arrested and requested the lineup.”
In Mr. Smerconish’s article, he quotes the Philadelphia District Attorney as saying that he does not know how lineups could be conducted without the detective knowing the suspect’s identity. Yet law enforcement agencies all across the country are doing just that. It is a simple fix, really. Have one officer present whose job it is to put the lineup together, and another who conducts it without knowing who is a filler and who a suspect. But more importantly, witnesses should be warned that the person who committed the crime may or may not be present (which is done only if a defense lawyer asks the warning be given), that the police will continue to investigate whether or not an identification is made, that they do not have to make an identification. Witnesses should be shown a lineup one at a time–sequentially–as opposed to all at once. And after an identification is made, witnesses should be asked to state in their own words how “certain” they are of the identification. None of that is happening here.
While we applaud Philadelphia for having a straightforward and consistent lineup policy, the truth is that the practice is far from the suggested procedures of the National Institute of Justice, the International Association of Chiefs of Police or the Commission for the Accreditation of Law Enforcement Agencies (CALEA). Law enforcement across the country are adopting better ways of running eyewitness identification procedures. We know how to protect a victim’s memory to ensure that it is not tainted or changed by an improper lineup or photo array. And when the memory is untainted, the chances of arresting the actual perpetrator are much higher. Which is, of course, what we all want: convict the guilty, but free the innocent.