How to be sure the guilty are really guilty

Posted at 3:23 PM on September 19, 2011 by Bob Collins (8 Comments)
Filed under: Crime and Justice

Unless something changes, Troy Davis is going to be executed on Wednesday for killing a police officer in Georgia. Seven of the nine non-police witnesses have recanted their original testimony identifying Davis as the killer.

"Police went to the scene, and they took quite a lot of witnesses -- and all of the witnesses talked to each other -- and they showed a single photo to various witnesses," recalls Barry Scheck, the co-director of The Innocence Project. "You're now in this difficult situation of asking, 'Is this a reliable case?' It's an eyewitness case and now we have this terrible doubt surrounding it."

What could have prevented it? Possibly, a witness identification procedure advocated by a group of scientists, including one at Augsburg College in Minneapolis, who officially released their study today showing that a traditional "lineup" method of identifying suspects in a crime is less reliable than a so-called "double blind" method.

Their study, first reported in the New York Times recently, found witnesses made fewer mistakes in identification if they're shown members of a lineup one at a time rather than as a group.

Dr. Gary Wells of Iowa State University, the lead researcher, said the problem with the group lineups, known as simultaneous presentation, is that witnesses tend to compare people in the lineup to each other "and to decide who looks most like the perpetrator and then they identify that person," he said.

"There's always someone who looks more like the perpetrator in the lineup than others in the lineup, even when the perpetrator isn't there," he said.

"If they look at six pictures (at once), they pretty much assume one of them is a suspect," according to Dr. Nancty Steblay of Augsburg College. "None of the six pictures looks exactly like memory, there's this subtle shift away from, 'is the culprit in the lineup?, do I see the person who robbed me?', to 'which one is closest to what I remember?' And that is usually a sound procedure if the culprit is in the lineup. What we worry about is when the culprit isn't in the lineup. Witnesses are very bad at recognizing when someone is not there."

In DNA exoneration cases, 75% of those who were exonerated after being convicted by juries, are cases involving cases of mistaken identification.

In a "double blind" lineup, the researchers said, witnesses/victims are shown photos of suspects (or so-called "filler photos) individually, and not by someone who is an investigator in the case.

It's a method used now in Hennepin and Ramsey counties. Dr. Steblay has been researching the method since the 1990s and worked with then Hennepin County district attorney Amy Klobuchar in 2004 to see if it provided more accurate identification and, hence, stronger cases.

"We didn't run a comparative test like the one released today," she said. "Amy Klobuchar had asked for volunteers just to see if it was possible for implementation to work. At the time there was a lot of worry about 'the sky will fall if we start doing something different,' or 'it will be too expensive." The question was can it be implemented, and they were implemented and ... it all went well."

"I became involved in this in the early 1990s, about the same time that these DNA exonerations began to pop and more and more we recognized that scientists have something to say about why these wrongful convictions occurred and how we can reduce the likelihood they happen in the future," she said.

Some states -- Texas for example -- are now requiring law enforcement agencies to develop a plan for ensuring that the lineup procedures used are most likely to result in an accurate identification of a suspect. Minnesota is not one of those states.

"I wish it were because Ramsey County, Hennepin County, and the Bureau of Criminal Apprehension all use double-blind sequential procedures and there would be leaders in how to put together and initiate model legislation," she said.

The third researcher on her team, Dr. Jennifer Dysart of John Jay College of Criminal Justice in New York, was in Atlanta today, hoping to detail her findings to the Georgia board that is deciding whether Troy Davis lives or dies.

"The Pardon and Parole Board limited the defense portion today to three hours and because of the number of questions that the Board had for other witnesses, I was not permitted to testify this morning," she said.

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Comments (8)

Improved lineups would help, but that won't fix what's wrong with Georgia or many other states where prosecutors are fixated with making "someone" pay for each major crime, whether that "someone" did it or not. Troy Davis's case is an excellent example of cops leaning on witnesses until they agree to recite the cops' script in court. Davis was railroaded, and systemic improvements wouldn't have helped.

Too many prosecutors (including one U.S. Senator I can think of) run their office with an eye towards getting elected to a higher office. This gives prosecutors all the wrong incentives.

Short of a Constitutional amendment, I don't know how to fix this problem, but it is a problem, and it's a huge problem in states where reckless demagoguery has created a lynch mob mentality among prosecutors.

Posted by Mark Gisleson | September 19, 2011 3:40 PM

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hmmm...we have a govt granted monopoly for a service and we find that it makes grave mistakes...whodathunkit.

Markets can provide police and judicial services just as well as any other service. Ones that allow bad service go the way of the Edsel and the Ford Pinto. We should be relying on Consumer Reports to avoid bad convictions (or nonconvictions), not The Innocence Project to undo the wrongs of the monopoly.

Posted by matt | September 19, 2011 4:20 PM

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This might serve as a bit of an incentive for real justice: Have railroading prosecutors and cops serve the equal amount of time that was served by people who were unjustly convicted. (If someone is unjustly executed, I'll settle for life for the "law enforcers".)

Posted by Jim Shapiro | September 19, 2011 4:39 PM

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Matt, if you think privatizing our courts would give us better justice . . . well, I think you need to switch to some new cable news channels.

Democracy creates self-correcting governance. If our courts aren't working to suit you, then there is a problem with the people we're electing not doing their jobs properly. That can be fixed in the next election.

California has privatized prisons and as a direct result their prison lobby keeps creating new laws to let them throw more people into prison and now they have ridiculously overcrowded prisons. Worse, most of their prisoners committed nonviolent crimes and never needed to be locked up.

Privatization is a hammer that turns every problem into a nail.

Posted by Mark Gisleson | September 19, 2011 4:44 PM

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Mark Gisleson -

While California might in fact be the land of fruits and nuts and an omnipotent prison guards union, many non-violent offenders have recently been ordered released.

Posted by Jim Shapiro | September 19, 2011 5:05 PM

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Mark,
I did not mention privatization at any point in time. Perhaps you should not assume that everybody watches cable news for ideas ;-)

Privatization just transfers the monopoly from the govt to a few choice friends of influential govt officials...as you indicate hardly an improvment.

http://mises.org/rothbard/foranewlb.pdf
Page 227 - It is better if you start at the beginning of the book and get the whole context but it deals with all of the tough questions that have to deal with police and a judicial system and it easily demonstrates that govt is not needed to have these services in abundance.

Also covers Jim's very good suggestion of dealing with those who abuse law.

Posted by matt | September 19, 2011 5:06 PM

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With Jim's idea, you would never have anyone prosecuting for any major crimes unless you physically saw that person there. Maybe some sort of penalty, but not to the extreme that they get equal sentence for the wrong person. Their job is to put criminals behind bars and when you make a mistake and do the wrong thing in you job, you get reprimanded. It is an unbalanced system where the prosecution is charged with finding the right person and the defense is charged with keeping their person (regardless of their innocence) out of jail. By more pressure on the prosecution for accuracy, you will have many more cases that are so close, but no one on a staff is willing to risk it. You have a lot more cases where the new guy is stuck with it because everyone else is afraid of time behind bars and many people who commit crimes get to walk because no one wants to go after them.
If the mob was big before, this would increase the time 10 fold.

Posted by Rick | September 20, 2011 10:08 AM

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Rick - Are you an attorney? I was exaggerating. Offering a hyperbolic solution to a horrendous problem.

That said, anyone who is found to be innocent after having been wrongfully convicted and incarcerated

Should have the right to press criminal charges and bring a civil suit against anyone who was found to be responsible for knowingly creating or presenting falsified evidence.

One charge might be accessory to false imprisonment, with subsequent penalties applied.

Posted by Jim Shapiro | September 20, 2011 11:46 AM

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