The Hot Debate on Lineups: Not Even Cops Agree

The issue.

Highly publicized DNA exonerations have heated up debate about the best practices for obtaining eyewitness evidence using police lineups. Law enforcement, prosecutors, defense attorneys, researchers, politicians, legal scholars and the courts are all weighing in.

Eyewitness evidence and police lineups are getting heightened scrutiny because mis-identification by eyewitnesses was the leading cause of more than 75% of the wrongful convictions brought to light. (1^st web link below)

Who’s debating what.

There is some conflict within the existing research about what practices in police lineups would make eyewitness identifications more reliable. Research is ongoing. (1^st and 2^nd web links below) While everyone agrees that no one wants innocent people wrongfully convicted, the current state of the research leaves room for disagreement on the methods and means for preventing that.

Not surprisingly, the defense bar appears to agree within its ranks that best practices should be mandated – by courts or legislature – and they’re working to accomplish that. They also appear united that the most stringent practices supported by research are the best ones.

Law enforcement has been divided in its responses to the research and to reform that would mandate specific policies and procedures. A bill to standardize police lineups in Florida failed just this month – defeated by intense law enforcement lobbying. Florida law enforcement conceded that written policies for how to obtain eyewitness evidence are a good idea but successfully argued that individual agencies should have discretion in developing and implementing them. (3^rd web link below)

Differing views among law enforcement leaders on what agencies should be required to do to improve the reliability of eyewitness evidence have been published in Police Chief Magazine. (4^th web link below)

Some law enforcement agencies have implemented pilot programs and studies to evaluate how different lineup practices work in the field. Others have voluntarily committed to implementing policies and procedures recommended by the research. (1^st and 5^th web links below)

A police pilot program added to the debate because it suggested that lab results were not supported by results in the field. Researchers had compared simultaneous and sequential lineups. Simultaneous lineups show the eyewitness all the photos or people at the same time. Sequential lineups present a photo or subject to the witness one at a time.

Some researchers asserted that during simultaneous lineups, witnesses use relative judgment - they compare lineup photos to each other rather than to their memory of the perpetrator. This is a problem if the actual perpetrator isn’t in the lineup because witnesses will often pick the lineup subject who most closely resembles the offender.

With sequential lineups, witnesses must decide about each photo or subject before moving on to the next, leading them to use absolute judgment – that is, comparing each subject only to their memory of the offender.

Some research also concluded that the blind sequential method – where the lineup administrator does not know the identity of the suspect – produced fewer false IDs than simultaneous lineups in which the administrator knew who the suspect was because it avoided any suggestibility – inadvertent or otherwise – from the administrator.

Then an Illinois Pilot Program in 2003 in which the Illinois State Police conducted a yearlong examination of the blind sequential versus the simultaneous lineup rattled the research cage. Data collected from 700 photo and live lineups from urban, suburban and semi-rural Illinois police departments showed that blind sequential lineups had a higher rate of false IDs and a lower rate of “suspect picks” than the simultaneous lineup.

The Illinois program results have since been undercut with challenges based on flawed methodology but there is still disagreement with the research community. Roy S. Malpass, Ph.D., professor of psychology at the University of Texas at El Paso has said,

“At the present time, there is no definitive sense that one form of lineup presentation (comparing simultaneous and sequential) is superior to the other.”

(See 1^st web link below for further discussion of the research.)

Some police departments think the best practices may be too burdensome or interfere with other aspects of the investigation. For example, requiring a blind administrator for lineups may be difficult in small departments or may disrupt the relationship an investigator tries to build with a witness. (1^st web link below)

But a Deputy Chief in Massachusetts has published that he believes the blind procedure is easily implemented even in small departments. (5^th web link below)

Politicians disagree – depending on who is effectively lobbying them. Compare Florida’s failed bill to standardize police lineups with the May 2011 Eyewitness Procedure Reform Bill in Texas. (6^th web link below)

To no one’s surprise, courts disagree on what lineup procedures are required to ensure adequate reliability of eye witness identifications. Legal scholars are urging the Supreme Court to revisit its dated decision in Manson v. Brathwaite, 432 U.S. 98 (1977), on what due process requires of police procedures for out-of-court identifications in light of all the intervening research. (7^th web link below)

What is the cop in the field supposed to do?

In light of all this debate and disagreement on the best practices for lineups -- hotly fueled by high profile DNA exonerations of people wrongly convicted and long-time jailed based on false eyewitness identification – what’s the officer using lineups as an investigative tool supposed to do?

Answer: Expect and be prepared for the defense to attack your lineup procedures in court:

Before trial at a motion to suppress hearing on the ground that the eyewitness identification is the product of faulty procedures that undermine its reliability and therefore violates the defendant’s 14^th Amendment due process rights.
During trial by rigorously cross examining you with the “best” practices endorsed by research and other law enforcement agencies.

Are you prepared? You will be if you read next month’s article -- Defending Your Lineup in Court – Know Latest Best Practices.

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About The Author:

Described by Calibre Press as "the indisputable master of enter-train-ment," Val Van Brocklin is an internationally sought speaker, trainer and noted author. She combines a dynamic presentation style with over 10 years experience as a prosecutor where her trial work received national media attention on ABC's Primetime Live, the Discovery Channel's Justice Files, in USA Today, The National Enquirer and REDBOOK. In addition to her personal appearances, she appears on television, radio, and webcasts, in newspapers, journal articles and books. Visit her website: www.valvanbrocklin.com