Eyewitness ID Reform Bill on Track in New Mexico

By Jeralyn, Section Crime Policy
Posted on Mon Feb 05, 2007 at 07:11:00 AM EST
Tags: eyewitness identification (all tags)

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Mistaken eyewitness identification is the largest cause of wrongful convictions. New Mexico has a bill pending that would greatly reduce the chances of misidentification. A hearing is scheduled today on the bill.

Under the proposed regulations, an eyewitness must provide a written description before a lineup takes place; there must be at least six individuals in a live lineup and 10 photos in a photographic line-up; and the members of the lineup must be shown sequentially rather than simultaneously.

The bill would also restrict the amount of time in which law enforcement could bring a suspect by for a physical identification by a victim or witness to within one hour after the crime was reported. Anything beyond one hour would require a lineup with multiple photos or people....

Innocence Project co-director Barry Scheck explains in this letter (pdf) why the bill is so critical to justice.

The bill is Senate Bill 5. You can read the text here.

The key features are these:

Conducting lineups double-blind (where the person administering the lineup does not know who the suspect is and therefore cannot give incidental cues to the witness)
Selecting lineup fillers according to the witness’s description of the perpetrator as opposed to based on their similarity to the police suspect, thereby lessening the chances that the suspect will stand out
Instructing the witness before the identification procedure that the perpetrator may not be present in the lineup, not to feel compelled to make an identification, and that the investigation will continue regardless of whether or not the witness makes an identification
Ensuring that witnesses document, in their own words, their degree of confidence in their identification
Creating an audio and visual recording of the eyewitness procedure

As Barry says,

It’s not complicated: mandating reform in eyewitness identification procedures is a win-win situation, resulting in fewer innocent people being sent to prison, more guilty people getting caught, and our communities becoming safer.

For years, Democrats and Republicans alike have embraced policies that are tough on crime. Now it is time they get smart about crime, too. In light of the daunting number of wrongful convictions caused by erroneous eyewitness identifications, along with the copious scientific research documenting the factors that enhance its error rate, our leaders must prioritize aggressive reform of police procedures in this arena. Supporting bills like New Mexico Senate Bill 5 is a good place to start.

New Mexico Governor Bill Richardson wants to be the Democrats' nominee for President. A good way for him to begin the journey would be to endorse Senate Bill 5 and show he values justice and is willing to be smart, not tough, on crime.

Send him an e-mail and urge him to support this bill.

Update: Tomorrow's Christian Science Monitor will have this article on how the call for sequential lineups is taking hold. [Via How Appealing.]

Update: The bill passed the Senate,22-20. Defense attorney Michael Stout reports it was amended, but not fatally, and now moves on to the House Judiciary Committee.

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Eyewitness ID Reform Bill on Track in New Mexico | 25 comments (25 topical)

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This is important (5.00 / 2) (#1)
by Tim From VA on Mon Feb 05, 2007 at 08:36:44 AM EST

ID Reform is a critical part of a new progressive approach to crime -- one that is smart and not just reflexively draconian. Every criminal justice problem is not a nail, and progressives need to start expanding criminal justice policy beyond the "hammer everything" approach where we try to "out-tough" the other side. As in the foreign policy arena, there is room for nuance and sophistication here as well.

Governor Richardson has said that the netroots is vital to his White House run, and an article in the Albuquerque Journal Saturday, "Blogging Time for Richardson" (Sorry No Link because the AJ won't let non-subscribers link) suggests that he gets the importance of our community.

Let's make sure that a key to our support is a funamental change towards progressive policy, and not just the same-old-same-old with a "D" next to the name.

"Smart" vs. "Tough" (5.00 / 1) (#2)
by joseph k on Mon Feb 05, 2007 at 08:50:28 AM EST

Glad to see the dialogue shifting from the typical right-wing rhetoric about the need for being "tough on crime." We've been using the brute force method long enough to know being merely "tough" on crime lands a lot of innocent people in prison, as Mr. Scheck and the Innocence Project have proved.

This New Mexico bill is a great example of how law enforcement can benefit from social science research, and begin to transition from "tough" to smart. And this isn't altogether a new thing, either -- progressive police forces all over the country are starting to implement the same reforms, with tangible success. From the Innocence Project's page on mistaken ID:

These changes have proven to be successful. The state of New Jersey, large cities such as Minneapolis, MN and Seattle, WA and small towns such as Northampton, MA and others have implemented these practices and have found that they have improved their quality of their eyewitness identifications, thus strengthening prosecutions and reducing the likelihood of convicting the innocent. Numerous other jurisdictions, such as the states of North Carolina and Illinois, as well as Boston, Massachusetts, and other cities, are now beginning to implement these procedures.

The reforms aren't complicated, and they are proven to work. Hopefully Richardson is paying attention and will help move the dialogue from the tired rhetoric of being "tough on crime," by passing smart, progressive bills like this one into law.

: Being Accurate is Being Tough AND Smart on Crime (5.00 / 1) (#7)
by CrimLaw Reformer on Mon Feb 05, 2007 at 01:08:25 PM EST

I don't really see this as being a "tough" vs. "smart on crime" debate. Policies that are based on science and which improve accuracy in the criminal justice system are smart AND tough, because they better ensure that the real perpetrators of crime are caught. If faulty eyewitness ID procedures resulted in an innocent person going to prison for rape while the real rapist is out on the streets continuing to victimize women, you're not being "tough" by supporting procedures that let the guilty go free to hurt more people. Whether you support being tough on crime or smart on crime -- or both -- you should support this New Mexico eyewitness ID reform legislation.

Smart reforms are scientific reforms (5.00 / 1) (#3)
by keasterly on Mon Feb 05, 2007 at 11:13:59 AM EST

Reforms for eyewitness id procedures, like the ones proposed in New Mexico, are smart because they've been scientifically tested both in the lab and the field.

Here again, Amy Klobuchar has proved to be a leader. While she was the County Attorney for Hennepin County, MN, she authorized a field test of double-blind sequential lineups to determine if these reforms were a good idea and if they could really work in the real world -- the answers were yes and yes. Here's a link to the article she co-authored with leading researcher Nancy Steblay about the study, which was published in the Cardozo Public Law, Policy and Ethics Journal: http://www.innocenceproject.org/docs/SteblayIDStudy.pdf.

: please use the link buttons for urls (none / 0) (#5)
by Jeralyn on Mon Feb 05, 2007 at 11:35:40 AM EST

Thanks for your comment, but in the future, please use the link button at the top of the comment box for your urls. Otherwise, they skew the site. Thanks.

New Mexico Eyewitness ID bill is a good thing (none / 0) (#4)
by BoogieDown on Mon Feb 05, 2007 at 11:14:46 AM EST

100 years ago, Harvard Professor Hugo Munsterberg lamented about the pitfalls of eyewitness identification. In 1932, Yale Professor Edwin Borchard's "Convicting the Innocent" looked at dozens of wrongful convictions and found that the majority were caused by mistaken eyewitness identification. Now, in 2007, 194 exonerations later, we are still waiting for states to implement scientifically sound procedures to both prevent wrongful convictions and improve law enforcement's ability to apprehend actual perpetrators. Let's hope the New Mexico bill passes and that other states soon follow suit.

: SB 5 Passes (none / 0) (#25)
by Tim From VA on Mon Feb 05, 2007 at 10:02:40 PM EST

SB 5 passed in the New Mexico Senate today by a vote of 22-20. One step down. The House and Governor are next.

This seems like a really good reform (none / 0) (#6)
by janinsanfran on Mon Feb 05, 2007 at 12:00:48 PM EST

I've been attending to two cases, both full of questions about witness IDs and both really dubious instances of "justice." In each case, the failure of law enforcement personnel to follow any discernable procedural rules related to witness IDs started a train of events that seems pretty certain to have unfair consequences.

We already comply (none / 0) (#8)
by Patrick on Mon Feb 05, 2007 at 02:48:03 PM EST

with 3 of the five "key" components.

The first component is seems rather silly. How can you guarantee it, and moreso how can you enforce it. It's more of the "One size fits all" legislation. If I work for a small department, I might not be able to find someone who's not aware of the suspect's identity to do the line-up. How do you get around that?

The 5th component is also questionable. If I don't have the capability to audio and video tape an in-field show up, should it not be allowed? There are any number of scenarios which would completely foil investigative attempts to ID a suspect. It's a human system, if you're looking for perfection, you're fooling yourself.

That doesn't mean I don't fully support trying to improve it, but I don't see these two components really moving it forward towards that end.

The Bill Already Accounts For These Concerns (none / 0) (#9)
by Tim From VA on Mon Feb 05, 2007 at 03:19:19 PM EST

The New Mexico Bill simply requires blind administrators or blind "procedures." Police around the country currently administer blind ID procedures using manila folders -- the folder method. That method allows an officer who knows the suspect's identity to place photos in unmarked manila folders, shuffle them and hand them to the witness one by one. Since the officer wont know what picture the witness is looking at, the officer cannot inadvertently influence the procedure. The cost of the method is the cost of the folders, which obviously can be reused. The benefit is priceless in terms of fewer mis-id's and id's that cannot later be attacked in court on the ground that the officer influenced the procedure.
As far as recording, the New Mexico Bill not only allows an exception for show-up procedures in the field soon after the incident, it also allows audio recording. As the Legislature found in connection with an interrogation recording Bill from a couple years ago, the cost of such a requirement is minimal, as an audio recording can easily be made using a low-cost tape recorder.

Everyone agrees that about the importance of making any new regulations easy for police to implement. But this Bill has already taken that into account. These procedures can be implimented simply and cheaply, even in rural jurisdictions.


Tim (none / 0) (#11)
by Patrick on Mon Feb 05, 2007 at 03:46:13 PM EST

With those caveats, I don't have a problem with #1, and much less of a problem with #5. I suppose I could have read the law, and not the interpretation of it in the thread. Either way, if your case is hanging on an ID and that's the only evidence you got, it's kind of a weak case to start with,

As far as recording, the New Mexico Bill not only allows an exception for show-up procedures in the field soon after the incident,

I'm not so sure about the 1 hour time limit though. Why not use a reasonable standard based on the circumstances. We don't even respond to some calls for an hour, and others can take that long to drive to, depending on where you are, I suspect New Mexico might have some long response times in some areas.


Time Limit (none / 0) (#13)
by BoogieDown on Mon Feb 05, 2007 at 04:07:44 PM EST

I believe there has been discussion of extending the time-limit for field showups from one hour to two hours. Moreover, given the bill's many other important provisions, I do not think that this should be a sticking point.


: My experience (none / 0) (#15)
by Patrick on Mon Feb 05, 2007 at 04:17:42 PM EST

Whenever you set a hard limitation like that you wind up with conflicts. I can't see any reason not to make it a reasonable time period, and let a judge determine what is reasonable based on the particular facts of the particular case, and relevant case law (as it's decided). There are just too many variables to have one size fits all laws.

Each Recommendation is Easy, not Silly (none / 0) (#10)
by BoogieDown on Mon Feb 05, 2007 at 03:37:54 PM EST

As for the audio and visual recording, this provision covers photo and corporal lineups and would not be mandated for field showups. There is no reason why non-field showups cannot be recorded.

As for the perceived difficulties for smaller police departments to conduct "double-blind lineups", there is an easy, simple, and cheap solution: the "folder shuffle method". This method, already used by police departments in Minnesota and Massachusetts, for example, simply requires the lineup administrator to place individual photos in indiviudal folders, shuffle them, then hand them to the witness sequentially (ideally from a position where the administrator cannot see what photo the victim is viewing). In this way, the non-blind administrator has just made him or herself blind. Another possibility (albeit a more costly one) is to implement state-of-the-art laptop computer-based technology. Using this technology, which incorporates many of the proposed reforms, the identification procedure is conducted on computer by the witnesses themselves. Recently such software was developed by OSSI in North Carolina, where police departments in Winston-Salem and Charlotte have already begun using them. Even better, the software is mobile, so the police can take the software via a laptop computer to the witnesses' home, employment, hospital, etc. This may be fiscally unfeasible for some departments at this juncture (though likely not in the future), in which case the folder method should be used.


: Yeah, I get the part (none / 0) (#12)
by Patrick on Mon Feb 05, 2007 at 03:57:01 PM EST

about the shuffle, but the law as stated in the thread said the officer giving the lineup didn't know the ID of the suspect, not, didn't know which picture they were portrayed in. That's a big difference, and I agree it's easy to overcome with that added little bit of info.
As for the in-field show ups, again there's no mention of this exception. If the law only applies to line-up while at the department, we pretty mcuh already video-tape that as well. So we're in compliance with #5 as you've described it.
If I hand someone a proof page with 6 photos on it, I don't know which photo the witness is looking at anyway. If a cop is looking to influence a photo-line-up this these other methods are not foolproof either. Which is what I understand everyone is looking for.

Better procedures (none / 0) (#14)
by atlanta lawyer on Mon Feb 05, 2007 at 04:10:00 PM EST

I have seen more and more folk pushing for reform and trying to bring law enforcement on board with some sucess. They do not expect to find solutions that are either fool or liar proof. If a police officer is LOOKING to influence the lineup, and is smart enough, he'll get around whatever procedures you put there, (though, IMHO many won't be smart enough and their disingeniousness will become more evident the more meaningful steps they must take to protect the integrity of the investigation.) What the research has shown, and is basic, elemental scientific procedure, is that the administrator of an experiment, especially one collecting data about human events preserved by human memory, can and will influence the outcome unintentionally. Well meaning police who don't have blinders on can be training to provide more reliable results in eyewitness identification without a statistically significant reduction in correct identifications.

: Whatever (none / 0) (#16)
by Patrick on Mon Feb 05, 2007 at 04:22:01 PM EST

IMHO many won't be smart enough and their disingeniousness will become more evident the more meaningful steps they must take to protect the integrity of the investigation.)
I beg to differ. There are very sophisticated cops out there and some of them are bad. Also, never underestimate a government worker's ability to avoid work, even if it means doing more work to avoid it.
I took the comment as a backhanded shot at the intelligence of cops. If it wasn't meant that way, then I apologize. If it was meant that way, you've got a lot to learn.

Many doesn't mean most (none / 0) (#17)
by atlanta lawyer on Mon Feb 05, 2007 at 04:39:14 PM EST

And the "many" is not even many in the class of police officers, but "many" in the class who don't have a problem comitting perjury.

But my point is, these procedures aren't really meant to protect citizens from that kind of police impropriety. And I'm not sure any procedures can.

: Fair enough (none / 0) (#18)
by Patrick on Mon Feb 05, 2007 at 04:48:15 PM EST

But my point is, these procedures aren't really meant to protect citizens from that kind of police impropriety.
If you say so, but my take is it's a little of both.

Clever Hans (none / 0) (#19)
by joseph k on Mon Feb 05, 2007 at 04:48:17 PM EST

I think this sort of procedure is aimed primarily at the inadvertent cues that cops (or anyone) can give, when they know the "answer" to the question being posed. Mandatory blind procedures will help minimize the influence of bad cops with agendas too, but the main point of the reform is to make the procedures more scientific, and therefore leading to more objective results. That is, IDs based on the memory of witnesses and not the suspicion of cops.

A lineup is like any experiment, and even with the best intentions people conducting experiments who are looking for a certain outcome from a test group are likely to give away the expected outcome, which in this case means it's more likely that a witness will finger the suspect, whether or not that's the guy that committed the crime. By and large, the people pushing for this kind of legislation aren't out to second-guess the judgment or intelligence of cops -- they just want to make that inadvertent influences are minimized for what is a potentially a very suggestive procedure, usually with serious consequences. And the cops I'm aware of who use double-blind, clearly documented procedures love them, because they are insulated from attacks by defense lawyers when they have to take the stand.

Patrick (none / 0) (#20)
by Jeralyn on Mon Feb 05, 2007 at 05:09:22 PM EST

for those of you new here, Patrick is a law enforcement officer who has been commenting on TalkLeft for years. He does so politely and without personal attacks and is thus welcome to express his views here.

Well, (none / 0) (#21)
by Patrick on Mon Feb 05, 2007 at 05:20:29 PM EST

He does so politely and without personal attacks and is thus welcome to express his views here.

I've certainly not earned that. I have my moments of incivility. I must ask, I'm pretty clear in my comments where I'm coming and make no secret of my occupation. Was your comment some kind of warning to others or a response to something that's been said to you?


just explanatory (none / 0) (#22)
by Jeralyn on Mon Feb 05, 2007 at 05:25:48 PM EST

Don't be so sensitive! There are a lot of lawyers reading this post who aren't familiar with TalkLeft or the comments section. Your comments clearly expressed your position, but didn't state you were coming at this from your professional point of view. I thought that disclosure would put your comments in context.


: Thank you, (none / 0) (#24)
by Patrick on Mon Feb 05, 2007 at 05:54:36 PM EST

I meant to add..."or add context" to my orginal post. Yes it does sound like I'm being a tad sensitive, and perhaps I was. Thanks for clearing it up.

Patrick (none / 0) (#23)
by Tim From VA on Mon Feb 05, 2007 at 05:33:27 PM EST

I wish all cops would address reform issues in the straightforward way you have in your comments. Good reforms will only become better with serious police input.