Charlotte Observer, NC
10-08-06
Experts: Lacrosse IDs likely tainted
Psychologists say flaws in police procedures create doubts about who the
defendants should be
Joseph Neff
(Raleigh) News & Observer
Psychologists Gary Wells and Brian Cutler helped design a procedure in 2003
for witnesses to identify crime suspects. Police departments across North
Carolina embraced the procedure. The Durham Police Department adopted it
almost word- for-word in February.
The conduct of the Durham police in the Duke lacrosse case, however, is a case
study in violating the new policy, the psychologists said. And as a result, police
have injected doubt into a woman's selection of three lacrosse players whom she
accused of rape.
Police violated two fundamental rules for running an identification procedure, said
Wells, a professor at Iowa State University, and Cutler, a professor at UNCCharlotte.
First, the psychologists said, police did not have an independent investigator
administer the process. Second, they neglected to include photos of
nonsuspects, known as fillers.
The procedures used can yield only uncertain or misleading results, Wells said,
and that's bad for everyone.
If the woman was raped, Wells said, the botched lineups undermine the
prosecution and the search for justice.
"And if she wasn't sexually assaulted, or was assaulted by someone else, [the
players are] in a position of guilty until proven innocent," Wells said. "It really
shifts the burden to the person identified to prove it wasn't them. That is a
profoundly difficult and very unfair situation."
Compounding the flawed procedures are the accuser's attempts to pick out her
alleged assailants. She selected 20 players when she viewed their photographs
in March and April. Every choice contained flaws or contradictions, according to
an analysis of police records turned over to defense lawyers by District Attorney
Mike Nifong.
The woman recognized 15 players at one viewing but didn't recognize them at
another.
She picked out only one player with certainty at both the March and April
viewings. He, however, was in Raleigh, not at the lacrosse party.
She wrongly identified the player who made a rude comment about a broomstick.
The woman, a dancer for an escort service, picked out four assailants in April
after telling police that three men gang-raped her March 14 in a bathroom at a
lacrosse team party.
There are problems with her identification of the three men who have been
indicted. She said David Evans had a moustache; his lawyers say he never had
one. She identified Collin Finnerty as an assailant; Finnerty did not match any of
the initial descriptions she gave police. In March, she was 70 percent sure that
she recognized Reade Seligmann but couldn't recall where she saw him at the
party. In April, she was 100 percent certain he had orally raped her.
Arranging lineups
Cutler, the UNC-Charlotte psychologist, said a witness may identify a suspect for
the correct reason: The suspect is the perpetrator.
But, he said, there can be other reasons: The witness could be guessing; the
witness could be lying; the witness could be influenced by police behavior to pick
a suspect; the witness could be influenced by repeated questioning or by having
seen a picture on television or in the newspaper.
"A well-conducted test will maximize the possibility that the reason for
identification is recognition and will rule out the other nuisance or extraneous
results," Cutler said.
In the lacrosse case, Durham police conducted several ID sessions with the
accuser. On March 16, she viewed 24 photos of lacrosse players printed from the
goduke.com Web site. On March 21, she viewed 12 more.
She recognized five of the 36 players, but police records of the March lineups are
unclear whether she identified the five players as assailants or merely as
partygoers. According to forms filled out at the time by Investigator Richard
Clayton, he showed the accuser a series of photographs and asked whether the
person had sexually assaulted her.
In an undated typed report released to defense attorneys in June, Clayton said
he asked whether she recognized the player. Clayton did not return phone calls
for an explanation of which question he asked, or both.
On April 4, Sgt. Mark Gottlieb conducted a third lineup session, using a
procedure suggested to him by Nifong. Gottlieb met with the accuser at the
police substation at Northgate Mall. He told her she was going to view pictures of
the people who attended the party. He showed her mug shots of all 46 white
players. (He did not show the team's lone black player because the accuser said
her assailants were white.)
How it can go wrong
As the senior investigator on the case, Gottlieb should not have been running the
ID procedure, said Wells and Cutler.
Social scientists widely accept that a test administrator privy to answers can
unintentionally influence the outcome of the test. A common example is a
pharmaceutical trial, where some patients take the tested drug and others get a
placebo, such as a sugar pill. Or some patients take an older drug, and some
take the new drug being tested. In both cases, doctors don't know which drug
their patients are taking.
"It's not because we don't trust the medical profession but because we know from
extensive experiments that when a person giving a test knows the answer, that
person tends to influence the person taking the test," Wells said.
In a criminal case, Wells said, it could mean that if a witness picks the wrong
person in a photo lineup, a police officer might urge the witness to "take your
time." Or if the witness picks the suspect, a police officer might congratulate the
witness on a job well-done, thereby solidifying the witness' confidence in the pick.
"Not only can a lineup administrator influence who the witness picks but how they
feel about the pick," Wells said.
According to Wells and Cutler, police must give a witness the chance to pick the
wrong person. This is why photo lineups contain fillers -- photos of people who
resemble the suspects but are demonstrably innocent.
Durham police showed the accuser only photos of Duke lacrosse players, with no
fillers. The District Attorney's Office and police had declared all 46 players
suspects.
"It's a multiple-choice test with no wrong answers," Wells said.
Wells said he would have urged Durham police to include photos of lacrosse
players from other universities.
"You mix them in, and if the witness doesn't know ... or is making it up, she'll pick
the fillers," Wells said. "We'd know we have a problem. As it is, I could pick a
suspect out of that lineup."
Staff writer Joseph Neff can be reached at jneff@newsobserver.com .
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