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Most police departments use old lineup methods

N.J ruling may prompt wider policy changes

Dallas Police homicide detectives Chris Daniels (left) and David Pughes presented a sequential photo lineup method. Dallas Police homicide detectives Chris Daniels (left) and David Pughes presented a sequential photo lineup method. (Rex C. Curry for The New York Times)
By Erica Goode and John Schwartz
New York Times / August 29, 2011

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The decision by New Jersey’s Supreme Court last week to overhaul the state’s rules for how judges and jurors treat evidence from police lineups could help transform the way officers conduct a central technique of police work, criminal justice experts say.

In its ruling, the court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures are flawed and can send innocent people to prison. By making it easier for defendants to challenge witness evidence in criminal cases, the court for the first time attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.

“No court has ever taken this topic this seriously or put in this kind of effort,’’ said Gary L. Wells, a psychology professor at Iowa State University who is an expert on witness identification and has written extensively on the topic.

Other courts probably will follow suit, and in November the US Supreme Court will take up the question of identification for the first time since 1977.

But changing how the nation’s more-than 16,000 independent law enforcement agencies handle the presentation of suspects to witnesses will be no easy task, many experts say.

Across the country, the idea has met with resistance from police officers who remain skeptical about the research and bristle at the idea that they could affect the responses of witnesses, even unintentionally, which studies find is how most influence occurs.

In many communities, lineups are conducted the same way they have been for decades, although typically they now involve photos, not actual people. According to some estimates, only about 25 percent to 30 percent of jurisdictions have police departments that have revised their policies to protect the integrity of lineup procedures.

Although some states are studying revisions or require single changes in procedure, only two - New Jersey and North Carolina - mandate the two practices that researchers regard as most important: lineups that are blinded, that is, administered by someone who is not familiar with the suspect and who is not one of the primary investigators; and photo arrays that are presented sequentially rather than as a group. Both practices, studies find, decrease the pressure on witnesses to pick someone and guard against influence.

The idea that human memory is frail and suggestible has gradually gained acceptance among leaders in law enforcement, buttressed by more than 2,000 scientific studies demonstrating problems with witness accounts and the DNA exonerations of at least 190 people whose wrongful convictions involved mistaken identifications. About 75,000 witness identifications take place each year, and studies suggest that about a third are incorrect.

Some large departments, such as Dallas and Denver, have already made changes, often under the leadership of an administrator eager to keep up to the national standard or after DNA exonerations revealed mistaken identifications.

In Dallas, for example, detectives take elaborate precautions to make sure that identifications remain untainted and that they will stand up in court.

Witnesses are sent to a special unit of the police department devoted entirely to lineups, where they are read instructions and shown photographs by trained lineup officers who have no relationship to the cases.

Photos are presented one at a time instead of all together, and the witnesses then indicate how confident they are in their judgments. The whole process is videotaped, so that it can be viewed by defense lawyers and by the court, if necessary.

David Pughes, commander of the homicide unit, said 5,000 lineups had been conducted in this manner since April 2009, when the policy was instituted, a major departure from the days when the investigating officers in criminal cases conducted lineups and no consistent procedures were followed.

Initially, Pughes said, the new practices were resisted by detectives, who felt that their integrity was being challenged.

“The only way to overcome that was through an elaborate training program that talked about memory and physiology and all different types of things,’’ he said. After the training, he added, “I could see that the lights were going on.’’

The Denver Police Department adopted similar revisions six years ago, said Matthew Murray, an aide to the department’s chief.

Ron Waldrop, a former assistant chief in charge of investigations in Dallas who instituted the changes there, said most departments do not make changes until wrongful convictions or other problems become an issue. And small departments in particular are unlikely to have changed their procedures.

“You have a lot of 10-man departments in the United States, and nobody really knows what they’ve done,’’ he said.

In an effort to find out, the Police Executive Research Forum has begun a survey of lineup practices in more than 1,400 randomly selected police departments around the country. The results are expected later this year, said Jerry Murphy, the survey’s lead investigator.

Yet even in departments that have enacted changes, police officers sometimes fail to comply with the new procedures. Stanley Z. Fisher, a law professor at Boston University, did a pilot study on compliance with changes in two jurisdictions in Massachusetts. He found that in Middlesex County, for example, where police officers are urged but not required to conduct blinded lineups, they recorded doing so in only two of 11 photo arrays.

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