News & Observer, NC
02/22/06
Lineup process rankles DAs
They say question unsettles witnesses
Andrea Weigl, Staff Writer
When eyewitnesses pick a crime suspect out of a photo lineup, the police are
supposed to ask them how confident they are that they've made the right choice.
Now some prosecutors say they don't want officers to do that.
The N.C. Criminal Justice Education and Training Standards Commission is
requiring that officers learn to ask the so-called confidence question. It's meant to
help prevent wrongful convictions.
But opponents say the question injects reasonable doubt into investigations that
defense lawyers can exploit later. The executive committee of the N.C.
Conference of District Attorneys came out against the practice this month.
"It's manufacturing reasonable doubt where the issue wouldn't exist," said District
Attorney Jim Woodall, who prosecutes cases in Orange and Chatham counties.
About 75 percent of the 174 prisoners exonerated by DNA evidence since 1989
were convicted based on false identifications, according to The Innocence
Project, a New York-based nonprofit. Four North Carolina men exonerated in the
past decade were convicted largely because of mistaken eyewitnesses.
New Jersey, North Carolina and Boston have been among the first to promote
the new photo lineup procedures, which the U.S. Department of Justice has
recommended since 1999.
Starting Jan. 1, all new North Carolina officers began learning the procedure in
basic law enforcement courses. Last week, the training standards commission
ordered that current officers learn the procedures next year.
Police typically do not conduct lineups with suspects standing in a line beyond
one-way glass. That's the television version.
Instead, witnesses pick a suspect from a handful of photos shown at once. That,
experts say, encourages the witness to pick the one that most resembles the
perpetrator -- even if the perpetrator is not among them. Plus, an investigator
who knows the true suspect can unintentionally prompt the witness.
The new process requires that the witness be shown six or eight photos, one at a
time. Experts say that encourages the witness to decide about each person
individually, instead of by comparison. An investigator who does not know the
suspect's identity should be involved. And after a witness has chosen a suspect,
the officer should ask the witness to describe how sure he or she is.
Process and certainty
The confidence question is key to helping investigators decide whether to focus
on one suspect and should be asked immediately, said Gary Wells, a
psychologist at Iowa State University and the nation's leading expert on
eyewitness identification.
After a photo lineup, investigators and prosecutors influence a witness'
confidence, he said. By the time of trial, a witness who has chosen the wrong
person can become supremely confident in his choice, Wells said. "A mistaken
identification is not what convicts innocent people. It's a mistaken identification by
confident people," Wells said.
In 2004, the Burlington Police Department became the state's first law
enforcement agency to institute the new procedures, including asking the
confidence question. "It gives them an avenue of articulating the certainty," Chief
Mike Gauldin said.
Alamance District Attorney Rob Johnson said he has had no difficulties
prosecuting criminals despite the use of the confidence question.
Second-guessing
Johnson's fellow prosecutors aren't convinced.
"You're almost inviting the witness to second-guess himself. I'm not sure that's
prudent," said Tom Lock, district attorney in Johnston, Harnett and Lee counties.
Branny Vickory, the district attorney in Lenoir, Wayne and Greene counties and
president of the district attorneys conference, agrees. "When that question
becomes a standard part of the identification process, it opens the door to an
argument that this person is not 100 percent certain," Vickory said.
Woodall, the prosecutor in Orange and Chatham counties, believes the question
can confuse witnesses. He recently prosecuted an armed robbery case in which
a person broke into a Chapel Hill investment firm after hours, bound and gagged
two men at gunpoint, and robbed them. Investigators asked the victims to identify
the suspect from a photo array.
They were then asked to rate the confidence of their identification on a scale of 1
to 10. One said eight, and the other said seven. Both victims later told Woodall
that they didn't grasp the question's purpose. "They both felt like they didn't
understand that question because they were as sure as they could be," he said.
Woodall said he was reluctant to take the case to trial because the defense could
exploit doubt raised by the witnesses' answers.
UNC law professor Rich Rosen represented Ronald Cotton, a North Carolina
inmate exonerated after 11 years in prison. Cotton had been convicted of rape
largely based on the testimony of a victim who mistakenly identified him. Rosen
was disappointed to hear the prosecutors were discouraging law officers from
following the complete procedures.
"It would be a shame to see some really good improvements being made
ineffectual," Rosen said.
Staff writer Andrea Weigl can be reached at 829-4848 or
aweigl@newsobserver.com.