There is a compelling, indeed indisputable, case to be made that faulty identification evidence has contributed to wrongful convictions. The cases of David Milgaard and Thomas Sophonow are prime examples. The crux of the danger lies in the fact that identification witnesses are often mistaken, and yet may be utterly convinced, and convincing, in their assertion that they've correctly picked out the perpetrator. A number of safeguards have been proposed, including the admission of expert evidence to point out to juries the particular frailties of identification evidence. Vancouver criminal defence lawyer Tamara Levy recently advocated this position in her compelling article "The Need for Expert Evidence on the Frailties of Eyewitness Identification", found in The Verdict, Issue 109, June 2006, at p. 38.
Another frequently suggested means of guarding against bad identification evidence is to prevent its creation in the first place by employing double-blind sequential (DBS) photo array lineups. The idea has 2 parts, and is deceptively simple. First, neither the police officer who shows the photo array, nor the witness, knows which of the people in the array is the police suspect, hence the term "double blind". The double blind procedure prevents the officer from consciously or unconsciously prompting the witness to pick the suspect from the array. Second, the array is shown sequentially, one photo at a time, rather than all at once. Sequential display avoids errors caused by the witness choosing the person who looks most like the culprit. Research has shown that witnesses sometimes do this even though the true culprit is not in the lineup.
DBS lineups should be used by all police forces. It was strongly advocated by former Mr. Justice Cory in the Sophonow Report, is more and more finding favour with the courts (see, e.g., R. v. Miller, [2003] B.C.J. No. 215 (S.C.); R. v. Friesen, [2005] S.J. No. 417 (P.C.)) and is currently taught to recruits at the Ontario Police College. It is to be commended and encouraged.
Against this background, it is distressing to learn that a recent Illinois study appears to have sabotaged, whether by design or incompetence, a move towards requiring DBS photo arrays in that state. The study arose out of the 2002 Illinois Governor's Commission on Capital Punishment, which reviewed the many wrongful convictions in that state and, among other things, recommended the DBS procedure. The Chicago police strongly opposed this recommendation, and instead of implementing this change the legislature established a three-city pilot project to study DBS identification. More study is by no means a bad thing. But sadly, the project was run by the Chicago police department, the very body that opposed DBS lineups. It is therefore not surprising that the results of the study, published this year in the Report to the Legislature of the State of Illinois: The Illinois Pilot Program on Sequential Double-Blind Identification Procedures (the Mecklenburg Report), are badly flawed.
To begin with, the study established no protocol for the control group, that is, for those photo arrays in which DBS procedure was not used. It is therefore impossible to determine which variables are responsible for differences, if any, between results obtained for the study and control groups. Second, and bizarrely, the study defined a correct identification as occurring whenever the witness picked the police suspect from the array. This makes no sense. It means that even clearly erroneous identifications, for example as determined by later DNA testing, are treated as correct. Given that the control group, unlike the DBS procedure, did not employ steps taken to prevent "suggestivity" by police, the flaw is glaring. Finally, the study was not conducted openly, and in particular was not monitored by the Mecklenburg Committee while in progress. Such an approach is incongruent with good scientific research.
In sum, the study is of almost no value, even without knowing the results. But the results add to the obvious concerns about methodology. In particular, the study asserts that there were no incorrect identifications by the 152 witnesses in the control group. This perfect rate of identification boggles belief, and is in sharp contrast with the 20% filler selection rate typically seen in similar studies. Indeed, the author of the Mecklenburg Report later admitted that in fact some of the 152 control witnesses selected fillers, which appears to suggest that the Report manipulated data in order to skew results. Another strange aspect of the study arises from data suggesting that witness identification improves substantially with time. Such a result runs counter to other research in the area, as well as human experience.
If there is any good news, it is that the Mecklenburg Report came to no conclusions about whether DBS procedure should be implemented, and rather recommended further research. But at the end of the day, the Report represents a missed opportunity. Timothy O'Toole, in an excellent article in the NACDL magazine, The Champion, August 2006, p. 18, aptly states: "The Illinois Legislature gave the criminal justice system a marvelous opportunity to conduct a serious, large-scale study of the efficacy of eyewitness reform procedures, one that could have been vital to correcting flaws in our current system. Instead of accepting the opportunity, the Mecklenburg Report ignored the guidance of the legislature and conducted a valueless exercise at substantial taxpayer expense".
The Mecklenburg Report can be viewed by clicking here. Timothy O'Toole's article can be accessed by clicking here.
To read the Sophonow Report, click here.
To read R. v. Miller, click here.
