Eyewitness Identification
\identification\\witness and lineup.wmv
\wrongful arrest, conviction\ronald cotton.wmv
...\after innocence lkl.wmv
...\ruben cantu, executed.wmv
...\james giles.wmv
...\calvin johnson.wmv
...\arvin mcgee.wmv
...\larry peterson.wmv
...\Alito on wrongful execution.wmv
...\Barry Scheck Colbert.wmv
\Technology\video in court.wmv
...\hollywood cameras.wmv
\DNA\Timothy Ennis.wmv
Witness factors
Opportunity to view the suspect
– Elapsed time during viewing and time passed since viewing
– Physical proximity
– Weather, obstructions to view, etc.
Physical and psychological factors
– Drives, interests, emotions, prejudice
– Past experiences and conditioning
– Physical abilities/infirmities (vision, alertness, drug use, age, etc.)
– Difficulty of cross-racial identification
Memory is not static -- it is cumulative, can change
Memory can be influenced by prior, concurrent and later events
– Was a weapon displayed? (“Weapon Focus Effect”)
– Did witnesses view photos? Participate in drawing a sketch?
– Have others suggested who the perpetrator might be?
Stakes in the outcome -- relationships, ax to grind
Witness interviewing –
Keep witnesses separate
– Suggestibility
– Peer pressures
Convey that suspect may
not be present
Maintain absolute neutrality – avoid coercion or
Do not reinforce witness decisions (leads to
Do not allow witness to see the suspect’s photograph
Beware the “usual
suspects” trap!
Many people have criminal records
– According to the FBI, in 2005
police in the U.S. made 14,094,186 arrests for non-traffic violations
– 603,503 were for violent crimes and 1,609,327 for property crimes
Having committed crimes in the past is a good predictor of committing
more crime in the future, BUT only in a general statistical sense
– Statistics CANNOT yield probabilities that someone will commit a
certain act
Even for the same kind of offense, criminal record is NOT a reliable
indicator that someone was involved in any specific event
– Piling up indicators like criminal record, presence in an area,
membership in a gang, etc. can lead to overconfidence in
identifications and increase the risk of arresting and convicting
innocent persons
Investigative ethics
Null hypothesis
– Type I error - reject a null when it is true
– Type II error - accept null when it is false
Duty to avoid mistaken arrest and wrongful conviction
– NIMBY -- it IS everyone’s responsibility
– Misplaced loyalties
– Agency and public pressures
– Desires to promote
– Peer pressures
– “Usual Suspects” trap
Field Identification – “Showup”
Field ID – “showup”
Suspect usually brought back to scene
for viewing soon after a crime
– Must occur soon after an incident,
usually within twenty or thirty minutes
– Assumption that witness memories will be at their best
– Nature of the event is inherently prejudicial
– Problem of suggestibility, peer and police pressure
– If there is no evidence beyond someone’s presence in an area
there may be a large probability of error
Showups –
NIJ recommended procedures
1. Determine and document, prior to the showup, a description of the
2. Consider transporting the witness to the location of the detained
suspect to limit the legal impact of the suspect’s detention.
3. When multiple witnesses are involved:
a. Separate witnesses and instruct them to avoid discussing details of
the incident with other witnesses.
b. If a positive identification is obtained from one witness, consider
using other methods (e.g., lineup, photo array) for other witnesses
4. Caution the witness that the person he/she is looking at may or may
not be the perpetrator
5. Obtain and document a statement of certainty for both identifications
and non-identifications.
Live and photographic lineups
Live and photographic
“Suspect” – the person in the lineup whom
police believe committed the crime
“Filler” – others in the lineup
Characteristics of a good lineup
– Random placement
– Suspect should not stand out
– Reasonable number of qualifying participants – those whose facial and other
characteristics resemble the suspect. Six is a good minimum (suspect plus at least
five non-suspect “fillers”)
Major problems in lineup identification
– Bias – suspect photo differs considerably from the fillers
– Picking out someone because they look most like the person observed. Can be
partly avoided by showing photos one at a time (see later slide)
– Picking out someone suggested by the officer, verbally or through body language.
Can be avoided by “double-blind” procedure (officer doesn’t know who the
suspect is – see later slide)
– Choice is reinforced by an officer, leading to overconfidence later, when a witness
is asked to identify the suspect in court.
Photographic lineups –
NIJ recommended procedures (partial list)
1. Include only one suspect in each identification procedure.
2. Select fillers who generally fit the witness’ description of the
perpetrator....fillers should resemble the suspect in significant features.
3. If multiple photos of the suspect are reasonably available to the
investigator, select a photo that resembles the suspect description
or appearance at the time of the incident.
4. Include a minimum of five fillers (nonsuspects) per identification
5. Consider that complete uniformity of features is not required.
Avoid using fillers who so closely resemble the suspect that a person
familiar with the suspect might find it difficult to distinguish the suspect
from the fillers.
6. Create a consistent appearance between the suspect and fillers
with respect to any unique or unusual feature (e.g., scars, tattoos)
Photographic lineups –
Other recommended procedures
Suspect in lineup should be selected by police based on information
tying him/her to the crime, not through the use of mug books,
accidental “spotting” of look-alikes on the street, and similar
procedures. This greatly reduces the possibility of error.
Officer displaying lineup must tell viewers that suspect may or may not
be in lineup
“Please tell me if you recognize any of these persons. The suspect may or
may not be one of them.”
“Thank you for your help. Good-bye!”
Officer must not tell viewers whether they successfully identified the
known suspect
Interview and show lineups to witnesses one at a time, never when
other witnesses may be nearby
Witness ID procedures North Carolina State Law
Double-blind or automated equivalent
Written pre-administration admonishment
At least five fillers resembling witness description of perpetrator
All eyewitnesses separated
Suspect to be placed in different position for each eyewitness
Signed witness statement denoting certainty of identification
Video or audio record of administration, or if cannot, a detailed
written account by administrator
UTEP – testing lineups
with mock (make-believe) witnesses
A “mock witness” is someone who never actually observed a suspect but is
trying to identify him/her based only on a physical description.
– If a lineup is unbiased, mock witnesses should not pick any certain
member of a lineup significantly more than another
Bias indicated when suspect is identified at a rate exceeding chance
In a 6-pack, mock witnesses should not ID the suspect at rates beyond 17%
(1/6). If there are 24 mock witnesses, ID’s should distribute:
“Fillers” (members of a lineup other than the suspect) should be selected to fit
the witnesses’ description, not because they “look” like the suspect
Sequential, doubleblind lineup
According to the Innocence Project, of the
first 130 DNA exonerations 111 (almost 80
percent) were due to mistaken ID
– Photospreads allow “comparison shopping”
– Drawings may not reflect the real suspect
Sequential, double-blind process (NIJ Eyewitness Guide)
– Show photos one at a time, in random order
 Encourages witnesses to focus on individual photos
– Detective doesn’t know which one is the “real” suspect
– The more photos the better
As always...
– Tell witness that criminal may or may not be in any of the photos
– Do not reinforce a witness decision
Texas Injustice:
The Prosecutor Didn’t Care
In 1983 James Giles was arrested for the gang
rape of a woman who lived 25 miles away.
Police focused on him because of an anonymous
tip and the fact that he was on probation for
attempted murder.
Giles did not come close to the suspect description.
But after some difficulty the victim identified him. He was convicted on that alone.
In prison, purely by chance, Giles met the man who called in the tip. The man
realized this was the wrong “Giles.” The James Giles who actually raped the woman
lived across the street from her. Police and prosecutors had learned of this years
before but buried the report in their files.
DNA finally proved that the imprisoned James Giles didn’t do it. The DNA belonged
to a friend of the man who committed the rape. The victim’s ex-husband picked the
friend from a lineup. The victim now admits she might have been mistaken
Giles was paroled in 1993 after doing 10 years. The new Dallas County D.A.
accused the old one of not caring who got convicted as long as his conviction rate
held up. Giles, who helped three of his fellow prisoners win releases through DNA
testing, was the 13th. prisoner from Dallas County to be exonerated through DNA.
Freed after twenty-six years
On August 3, 2005, Luis Diaz walked out a
free man after DNA conclusively proved that
semen found in two of the seven victims of a
serial rapist was not his.
Between 1977 and 1979 seven women
motorists were brutally raped by a man who
pulled them over by flashing the lights of his car. Diaz was arrested
when one of the victims, a gas station attendant, told police that one of
the patrons looked like the rapist. Although several victims initially
described their attacker as a large, Hispanic man, every one identified
Diaz (a little guy) from a photo lineup, then in court. There were other
inconsistencies as well.
In 1993 two victims recanted their ID and those charges were
dismissed. But Diaz remained in prison on the remaining counts.
Prosecutors declined to say that Diaz was “innocent” of the assaults
that had no DNA to compare but decided not to retry him.
Thomas Doswell
On August 1, 2005, nearly 20 years
after being imprisoned for rape,
Thomas Doswell was freed after being
exonerated by DNA. Doswell, who
was identified by the victim and a
witness, claimed all along he was
innocent, leading parole boards to
repeatedly refuse to release him.
Doswell was first ID’d from an
8-picture photospread in which his
photo was the only one prominently labeled with an “R”,
signifying a prior arrest for rape (he had been acquitted of
raping a girlfriend.) The victim also reported that her attacker
had a beard, but Doswell only had a mustache.
Pittsburgh Post-Gazette, 7/30/2005
Calvin Johnson, cleared by DNA of rape and burglary after serving 18 years
“The Usual Suspect”: In 1983, two years after being convicted of burglary, Johnson was picked out of a
photo spread by a rape victim who admittedly did not get a good look at her assailant. Eighteen years
later a swab from the rape kit positively eliminated him as being the assailant. Interestingly, in 1984,
while in prison, he was acquitted of a 1982 sexual assault (his name came up because of the arrest).
Security cameras
Security cameras
– In many public and semi-public
May be useful when there are no
– Suspects can be developed by
police and the public
– Can track suspect movements
– Images may be grainy and indistinct
– Viewing can contaminate witness
memories and lead to
overconfidence in the identification
Remember Efren Cruz? Here’s another
security camera case:
In November 2004 a Federal court jury convicted
William Cottrell, a Cal Tech doctoral student, of arson and
conspiracy. Fifteen months earlier Cottrell and two associates,
Tyler Johnson and Michie Oe, allegedly firebombed and
vandalized vehicles at four L.A.-area auto dealerships, causing
$5 million damage. They acted in the name of the “Earth
Liberation Front” to protest environmental damage caused by
SUV’s. At trial Cottrell admitted he was present but said he did
not personally set the fires. Cottrell’s claim was countered by
students who said he bragged about the deed. Cottrell was tied
to a Cal Tech computer that was used to send e-mails to the
media claiming responsibility for the attacks.
Soon after the attacks the FBI and West Covina police arrested
Joshua Connole, an anti-war protestor who lived in the area and
supposedly resembled a person depicted on the dealers’ security cameras.
Within days an unknown person informed the L.A. Times that police had the
wrong man and gave details that only those responsible could know. Connole
was released but police kept insisting he was still a suspect until it became
painfully obvious that he had nothing to do with the crime.
Composite images – “sketches”
Composite images –
Especially useful when there are few
investigative leads
– Can help suggest or narrow down
the range of possible suspects
Limited accuracy
– Cannot be the sole basis of probable cause
– Operator intervention in process
– Limited flexibility
– Witness endurance
– Planting of false memories can affect future identification
Composite images –
NIJ recommended procedures
1. Assess the ability of the witness to provide a description of the
2. Select the procedure to be used from those available (e.g.,
identikit-type, artist, or computer-generated images).
3. Unless part of the procedure, avoid showing the witness any
photos immediately prior to development of the composite.
4. Select an environment for conducting the procedure that
minimizes distractions.
5. Conduct the procedure with each witness separately.
6. Determine with the witness whether the composite is a
reasonable representation of the perpetrator.
In July 1984 in Burlington, NC an assailant twice broke into apartments, severed
phone wires and sexually assaulted two women.
On August 1, 1984, Ronald Cotton was arrested for
these crimes. Evidence included a photo ID
and lineup ID by the first victim, a flashlight found
in his home that resembled the one used by
the assailant, and rubber from Cotton's tennis shoe
that was consistent with rubber found at one scene.
In January 1985, Cotton was convicted by a jury of the second rape. On appeal,
the conviction was overturned because the second victim had picked another
man out of the lineup and the trial court did not allow this evidence to be heard.
In November 1987 Cotton was retried, this time for both rapes because the
second victim also decided that Cotton was her assailant. Cotton was convicted
of both rapes and two counts of burglary and received life plus fifty-four years.
Before the second trial, another prisoner convicted for similar crimes told another
inmate that he was responsible for the crimes for which Cotton was convicted. A
superior court judge refused to allow this information into evidence.
(sources: Innocence Project and Truth in
Words of second victim, Jennifer Thompson:
“In 1984 I was a 22-year-old college student with a grade point average of 4.0....
One night someone broke into my apartment, put a knife to my throat and raped
me....I studied every single detail on the rapist's face. I looked at his hairline; I
looked for scars, for tattoos, for anything that would help...identify him....I was
going to make sure that he was put in prison and he was going to rot.
I worked on a composite sketch to the very best
of my ability. I looked through hundreds of noses
and eyes and eyebrows and hairlines and nostrils
and lips. Several days later, looking at a series of
police photos, I identified my attacker. I knew this
was the man. I was completely confident. I was sure.
I picked the same man in a lineup. Again, I was sure. I knew it. I had picked the
right guy, and he was going to go to jail. If there was the possibility of a death
sentence, I wanted him to die. I wanted to flip the switch.
When the case went to trial in 1986, I stood up on the stand, put my hand on the
Bible and swore to tell the truth. Based on my testimony, Ronald Junior Cotton
was sentenced to prison for life. It was the happiest day of my life because I
could begin to put it all behind me.”
(Source: Truth in
“In 1987, the case was retried because an appellate court had overturned Ronald
Cotton's conviction....Another man had supposedly claimed to be my attacker and
was bragging about it in the same prison wing where Ronald Cotton was being
held. This man, Bobby Poole, was brought into court, and I was asked, "Ms.
Thompson, have you ever seen this man?" I answered: "I have never seen him in
my life. I have no idea who he is." Ronald Cotton was sentenced again to two life
[Eight years later] I was standing in my kitchen
when the detective and the district attorney visited.
They told me: "Ronald Cotton didn't rape you. It
was Bobby Poole."
The man I was so sure I had never seen in my life
was the man who was inches from my throat, who raped me, who hurt me, who
took my spirit away, who robbed me of my soul. And the man I had identified so
emphatically on so many occasions was absolutely innocent.”
(Source: Truth in
Ronald Cotton was released after serving 11 years. Bobby Poole pleaded guilty to
both rapes and was imprisoned.
Jennifer Thompson
Speaks Out About
Witness ID
Jennifer Thompson, the rape
victim whose misidentification
Ronald Cotton & Jennifer Thompson
sent Cotton to prison for a crime
he did not commit, now talks about the problem of mistaken
identification around the U.S. In the process, she and Cotton
have become good friends.
Pittsburgh Post Gazette, 5/8/05
More Problems With Composite Sketches...
Gary Dotson spent nine years in prison for a rape he did
not commit. He was identified after a woman tried to
explain away her pregnancy by claiming she was raped.
Based on her description, a police artist drew a sketch.
The woman was then pressured to pick out a like person
from a mug book. DNA finally cleared Dotson, and the
woman admitted that she was impregnated by her boyfriend.
Kirk Bloodworth spent ten years in prison for the rape
and murder of a nine-year old girl. He was identified by
one of his neighbors who recognized him from a composite
drawing of the suspect that was circulated by police.
Authorities were so certain they had the right man that
they ignored the fact that a mentally ill person confessed
to the crime to employees of a mental health clinic. DNA
eventually proved that this person was the one responsible.
Pittsburgh Post Gazette, 5/8/05
Mug books and photo collections
Mug books and
photo collections
Books and collections of
– Sorted by type of crime,
gang, etc.
Can be useful when there are few leads
– When there is no independent evidence pointing to a
suspect there is a much greater probability of error
– Picking out someone who “looks like” or “looks most like”
the suspect
– Can contaminate memories and lead to overconfidence in
the identification
Sometimes there’s a happy ending...or is there?
On December 11, 1980, a man held up the Burger
King restaurant in Orange, California and shot and
killed the manager. Suspecting that gang members
were involved, Orange police obtained numerous
photos from the LAPD. A Burger King employee
identified a photo of Dwayne McKinney as the killer.
Mc Kinney was considerably shorter than the original witness description and walked
with a limp.
Police arrested McKinney, who had a record for violence and armed robbery. Four
witnesses identified him at the trial. Although the prosecutor asked for a death
sentence, McKinney got life imprisonment.
Nearly nineteen years later McKinney was freed when two inmates admitted they
committed the robbery and identified another prisoner as the shooter. Two of the four
witnesses who sent McKinney up the river looked at this man’s photograph and said
that, indeed, he was the killer – not McKinney.
McKinney sued the Orange police, claiming suggestive interviewing. The lawsuit was
settled for $1.7 million. McKinney later became a successful entrepreneur in Hawaii.
In 2007 he appealed for compensation from the State of California. He was opposed
by the Calif. Attorney General, who said that the two inmates, who were already doing
life terms, were lying to help McKinney. Los Angeles Times, 7/19/05, 1/31/07, 9/22/07
Delayed identifications
Federal Jury: L.A. County Sheriff to Pay $18 Million
(L.A. Times, 2/16/06)
In 2002 a 16-year old girl was kidnapped and driven away by a man who
demanded sex. She was able to get away. Months later the girl and her
mother spotted a car that resembled her attacker’s. Sheriff’s detectives
arrested the driver, Raul Ramirez, a Compton middle-school teacher.
Although Ramirez differed in key respects from the description initially
provided by the girl, she identified him as the assailant and he was
prosecuted. At trial the defense produced cell-phone and bank ATM
records indicating that Ramirez was many miles away when the attack
took place. Fortunately, jurors found Ramirez NOT guilty. Ramirez later
sued the Sheriff’s Dept. for violating his Federal civil rights, claiming that
the detective had known about these records all along but purposely held
them back. Jurors agreed with him again.
The Sheriff’s Dept. sharply contested the civil verdict. "This was a 16year-old girl who said she was kidnapped and duct-taped by Mr.
Ramirez," said Sheriff's Chief Bill McSweeney, who oversees litigation
involving the department. "When two deputy [district attorneys] and a
16-year-old kidnapping victim believe in our case, so do we."
Federal Jury: Tulsa to Pay $14.5 Million (L.A. Times, 3/31/06)
In 1989, after three trials, Arvin McGee was
convicted of raping a woman two years
earlier. The woman had failed to pick him
out of a photo lineup, but picked him out of
another lineup four months later. This
identification, along with a serological report
that “did not exclude” McGee as the sperm
donor, were used to convict him.
Thirteen years later, DNA testing positively
excluded McGee’s sperm. A positive match
was made for another prisoner, Edward
Alberty. Alberty has been charged with
rape and forcible sodomy.
McGee sued police for violating his civil
rights. He alleged improper investigative
techniques, including a bad photo lineup
and ignoring serious inconsistencies in the
victim’s description. In March 2006 a
Federal jury agreed and awarded McGee
$1 million for each year he spent in prison.
Legal decisions
People v. Jerry Noble Kennedy
(Calif. Sup. Ct., no. S037195, 7/25/05)
You be the judge
A witness in a car parked at a rest stop hears a gunshot. The
defendant exits a restroom and passed by within 5-10 feet.
They lock eyes and the man leaves. The victim stumbles out of
the restroom, mortally wounded. Police are called.
The witness describes the defendant as a curly-haired white
adult male, about five feet eight or nine inches, 150 pounds, no
facial hair. She later helps a police artist prepare a composite
sketch but is unsatisfied with the results.
Arrest, identification and trial . . .
Based on other facts the defendant is arrested. He is 37, six feet tall,
with a full mustache and goatee covering the lower half of his face.
Defendant's appearance does not resemble the composite sketch.
Police have a LOT of physical and other evidence that the defendant
was the shooter.
Days later the witness later sees a photo of the defendant in a
newspaper, notices the beard and fears it’s the wrong man. But when
she views a videotape of the defendant's arrest and sees his eyes her
opinion dramatically changes: “Oh, my God, that's him, and I don' t
know how I missed that beard.“
The witness positively identifies the defendant at a pretrial hearing and
again at the trial, where she testifies: "I just kept saying, ' I don't
believe I missed the beard, I don' t believe it,' "and "Oh, my God, that's
the man."
Conviction and appeal . . .
The defendant is convicted and sentenced to death.
Other than the identification, the evidence against
him is overwhelming. There is really NO doubt he
was the shooter.
In an automatic appeal, the defendant objects that
the identification process was unduly suggestive.
How did the court rule as to the
identification? Why?
The Court’s decision . . .
Considering the totality of circumstances test
of Neil v. Biggers and noting that the lapse
between the crime and the identification was
“only three weeks” the California Supreme
Court concluded that the identification was
sufficiently reliable to be admitted at the trial.
Neil v. Biggers (U.S. Sup. Ct., 409 U.S. 188, 1972)
Even if the police use a suggestive procedure, one must look to
the “totality of the circumstances” to determine if a witness
identification is sufficiently reliable to be admitted as evidence
Factors to consider include:
– Opportunity of the witness to view the criminal at the time of
the crime
– Witness' degree of attention
– Accuracy of the witness' prior description of the criminal
– Level of certainty demonstrated by the witness at the
confrontation (viewing)
– Length of time between the crime and the confrontation
Twists and turns
Freed after 18 years, then busted again –
the strange case of Leonard McSherry
In March 1988 Long Beach police arrested Leonard McSherry for kidnapping and
raping a six-year-old girl. McSherry was identified by the victim and a neighbor from a
photospread, in a line-up and in court. A detective testified that the victim identified
McSherry’s car and his grandparent’s house. McSherry, a previously convicted sex
offender, was convicted and got 48 years.
In 1992 McSherry appealed for a new trial because of DNA tests that supposedly
cleared him. Prosecutors said the tests were inconclusive. Because of conflicting
opinions between defense and prosecution experts the court denied the motion.
In 2001 DNA tests proved that George Valdespino, already in prison serving time on a
1997 kidnapping/molestation conviction, was the one responsible. McSherry, who had
served 13 years, was declared factually innocent, released and given $481,000.
In 2005 McSherry was arrested for loitering around schoolyards and annoying children.
He was convicted and got 25 years to life because of his prior convictions.
Meanwhile McSherry’s suit against Long Beach police drags on. The victim’s
description of him and the place she was taken were inconsistent with McSherry and
his grandparent’s house. But police included him in the photospread anyway. The
victim testified that she was impatient during her interviews with police and just wanted
to play. She said that she did not identify McSherry’s car or his grandparent’s home.
In September 2005 the 9th. Circuit Court of Appeals denied the LBPD detectives
qualified immunity and ordered the lawsuit to proceed because there was "a disputed
issue of fact” whether fabricated evidence was used to gain McSherry's conviction.
Freed after 18 years, then busted again –
the strange case of Steven Avery
In 2003 Steven Avery, 43, was
freed from a Wisconsin prison
after new DNA tests proved he
had been wrongly convicted of
rape. Avery received $400,000
compensation. His conviction
was based on eyewitness ID by
a single person – the victim – and
on inconclusive DNA evidence.
Avery’s freedom was due to the
Wisconsin Innocence Project of
the University of Wisconsin Law
School. Avery became a high-profile symbol of “flawed-justice”.
In November 2005 Avery was arrested when police found the burned remains
of a 25-year old woman in his family’s salvage yard. DNA testing (oh, the
irony...) revealed the presence of blood from Avery and the victim in her SUV.
Avery’s DNA was also found on the vehicle’s ignition key, which had been
hidden in Avery’s room. He was later convicted of the woman’s murder. In
May 2007 he was sentenced to life without parole.
Sometimes a witness may
have been right all along...
In 1985 a soldier, Timothy Hennis, was
arrested for brutally murdering a woman and
her two children the evening after buying
their dog. The victim was also raped. Hennis
could not account for his whereabouts.
A passer-by helped police draw a sketch and later identified Ennis as being in
the area that night.
Hennis was convicted and placed on death row. His conviction was later
overturned because overly grisly crime scene photos were shown to the jury.
There was too little DNA available for comparison.
Hennis was acquitted in a retrial. Elizabeth Loftus, a UCI professor and expert
on mistaken identification challenged the witness ID. The defense also showed
that a man who looked like Hennis regularly walked his dog in that
neighborhood at night.
Twenty years later new DNA techniques allowed a comparison, and a positive
match was made between semen from the woman victim and Hennis. Hennis
could not be retried in civilian court. However, he had retired from the Army, so
he was arrested by military authorities and is pending court-martial for murder.