Chris Opfer is a writer and attorney in Washington, D.C. His work has appeared in New York Magazine, The Daily Beast, The Village Voice and Pacific Standard, among other publications.
False eyewitness identifications are the leading factor in wrongful convictions. Washington, D.C., wonders if it can fix that.
Want to know who done it? Ask the person who it was done to; or at least someone who watched it be done.
From Hill Street Blues to Law & Order, eyewitness testimony has long been a cornerstone of both real life police work and the TV shows that depict it. Recently, however, officials in cities and states across the country have taken a harder look at how witnesses point the finger. Many want them to do it "blind."
Last month, local legislators in Washington, D.C., introduced a law that would require city cops to incorporate a number of safeguards into their eyewitness line-up procedures. Chief among them is that the line-up be conducted "double-blind," with neither the witness nor the investigator aware of which participant is the actual suspect.
"The problem of eyewitness identification has been significant across the nation," says D.C. Councilmember Mary Cheh, one of the law's sponsors. "This is a way to try to correct those subtle influences that may lead a witness to mistakenly identify somebody."
False eyewitness identifications are the leading factor in wrongful convictions, according to the New York-based Innocence Project. It contributed to nearly 75 percent of the 301 convictions that have been overturned based on DNA evidence.
Kirk Odom was exonerated last summer after spending more than 21 years behind bars for allegedly raping a woman in her Capitol Hill apartment. While being questioned for another crime, a D.C. police officer noticed that Odom resembled a composite sketch based on the victim's description of her attacker. The victim later identified Odom in a line-up that included several non-uniformed officers.
Although a faulty hair sample was also to blame for Odom's conviction, his case underscores reliability concerns associated with eyewitness identification.
"Memory is not like a videotape or photograph. It's very vulnerable to contamination," says Boston criminal defense lawyer James M. Doyle, who has written two books on eyewitness issues. "If you have physical evidence like blood, you can send it to the lab to see if it's been contaminated. With eyewitness evidence, you can't."
The high level of stress that comes with being the victim of a crime, time pressure, and expectations (the mistaken belief that the guy who did it must in the line-up somewhere) are some of the possible contaminants. The double-blind method is intended to minimize another: unintentional verbal or physical "cues"- gestures, sighs, coughs, etc. - that a police officer may give the witness during a line-up or photo review.
The problem isn't just that a cop may tip the witness off to the actual suspect, but also that the witness may misinterpret non-cues. "Sometimes the detective scratches his nose and he's just scratching his nose," Doyle says. "If it's the detective handling the case, there's the danger that the witness can interpret this as an inadvertent cue."
Not everyone is chomping at the bit to go blind. D.C.'s Metropolitan Police Department declined to comment on the proposed law, but the union representing city police officers opposes the legislation. "This is a solution that's looking for a problem," Fraternal Order of Police Chairman Kristopher Baumann says. "The District of Columbia has not had an issue with eyewitness identification problems."
Baumann stressed the administrative costs associated with a double-blind line-up, which would require an additional officer not involved in the investigation to be on hand for the line-up and perhaps later at trial. He also noted that many overturned convictions date back to decades old prosecutions, and said that additional protections and criminal justice system enhancements developed over the years guard against wrongful convictions.
"I think it would be difficult to find any of our current prosecutions that rely solely on eyewitness identification," Baumann says. "It is a piece of the puzzle, but it is not the main factor that we rely on in prosecutions."
Opponents of similar line-up reforms often cite a 2006 Illinois report which found that double-blind line-ups conducted sequentially - meaning the witness views one line-up participant or photo at a time - were not likely to produce a lower false identification rate and in some cases even make bad IDs more common. The proposed D.C. law does not include a sequential requirement.
While the measure has failed to pass twice in the last five years, Cheh said she's hopeful that it will get serious attention this time around. On Feb. 12, an ad hoc committee formed by the city's superior court urged MPD to use the blind method "when practicable." The department is reportedly working on a pilot program that would use double-blind line-ups in robbery investigations.
In Dallas, police line-ups are handled by a unit of specially-trained officers who otherwise have no involvement in the particular case. Meanwhile Virginia, North Carolina, New Jersey, Connecticut and Ohio are among states that require police to administer double-blind line-ups and photo arrays. A bill to bring the practice to New York stalled before reaching the state Assembly floor last year.
As the debate over line-up methods continues in nation's capital, both sides agree on the ultimate goal: accurate and reliable eyewitness identifications. "No police officer, no prosecutor wants to put an innocent person away," Baumann says. "Beyond the moral and ethical issues, it means the real bad guy is still out there."