2/6/15

By Andrew C. Whitman, ACLR Featured Blogger

Illinois’s new law1 seeking to make police lineups less susceptible to bias requires lineups, among other requirements, to be videotaped and conducted by a neutral police officer. These steps will help to curb police suggestion to witnesses and will have profound impacts on trials in Illinois. In addition, though an unintended consequence of the law, videos obtained in the course of conducting lineups and photo arrays could prove to be extremely probative evidence. In the search for the most accurate record of a witness’s memory, a video of the very first identification of a suspect should prove to be quite instructive. For these reasons, it should be adopted by other jurisdictions.

The Memory Tampering Problem Illinois is Trying to Solve

Since the advent of DNA evidence proving peoples’ innocence, the reliability of eyewitnesses has been called seriously into doubt. In particular, experts have identified key procedural deficiencies that can impair witness recall. According to the non-profit The Innocence Project, almost three-fourths of the 325 convictions overturned nationwide since 1989 because of DNA evidence involved false identifications2—making it the most frequent single cause of wrongful convictions.3 Many of these misidentifications are the result of improper lineups or photo arrays.4

There are a variety of ways that the presentation of suspects in these arrays can lead the witnesses to choose suspects based on factors other than their own memory. Police body language, statements encouraging witnesses to remember situations a certain way, and the manner in which suspects are presented can all have an effect. Studies show that memory (particularly while remembering traumatic events) does not act as a “video recorder,” but rather is a complicated, constructive process occurring as the witness is recalling the scene.5 Anecdotal evidence, as well as substantial empirical analysis, confirms that outside factors can have a profound impact on what a witness remembers6.

One way that this phenomenon occurs is called memory tampering. According to this phenomenon, cues by police officers interfere with witnesses constructing their memories. For example, if an officer remarks that the witness can assume that the suspect is in the lineup, they may encourage the witness to identify the person most similar to their recollection.7

Once this memory tampering has occurred, witnesses become increasingly certain that their initial recollection was correct. This is because of a phenomenon called confirmation bias. Confirmation bias is the tendency of people, once they have adopted a certain belief, to filter information to further, and not challenge, that belief.8 While a witness might not have been sure about the initial identification, they often become much more confident about their memory, even if erroneous.9 Jurisdictions have taken a variety of steps to compensate for the problem of bias in witness identification.10 Illinois’ law is especially interesting, particularly given the unintended consequences it will cause.

The Law

The Illinois law counters the problems of cognitive and confirmation bias. The law first requires that photo arrays (in which witnesses are shown pictures of the suspect and “fillers”) and in-person lineups be conducted by officers who do not know which choice is the suspect.11 Nobody who knows the identity of the suspect is allowed in the room.12 Next, the law sets standards to ensure that the police’s suspect “does not unduly stand out from the fillers.”13 For example, it would be against the spirit of the law if all of the fillers wore prison garb, and the suspect wore a shirt and tie.14 New Jersey, North Carolina, Connecticut, other states, and many cities have implemented these and other requirements.

Most uniquely, the new law requires that lineups and photo array identification be videotaped by an unbiased police officer. Thus, the State of Illinois hopes to remove the guesswork of identifying bias and see for itself what’s going on.

The Intended Consequences

The immediate effect of this law will be to reduce bias in identification procedures. The blind study will prevent those administering the lineups from cueing the witness to the officers’ suspect. Requiring parity between suspect and fillers prevents situations where the suspect stands out from the group, is the only person included in multiple arrays, or is subconsciously cued in some other way. The videotape validates the police adherence to the previous two requirements. The videotape also will improve internal investigations, provide transparency within a problematic area, and foster trust with communities suspicious of police. A lineup camera program is also not expensive or burdensome like a body camera program, where departments must buy dozens and maintain their chain of evidence.

The videotaping will also remove a potential weapon for defense attorneys and reduce litigation.15 In the face of the evidence questioning eyewitnesses, defense attorneys have frequently brought forth expert testimony explaining the potential problems with lineups and arrays. Possibly for this reason, prosecutors in Illinois have spoken out in support of the law.16 Defense attorneys will no longer be able to speculate about what might have occurred during these arrays. Police can ensure that their evidence is unquestionable simply through videotaping the process, and allowing the judge to view the tape in camera. Defense attorneys, too, favor the law, as any reduction in bias can only help their clients.17 Thus, nearly everyone supports the clarity and transparency the law will bring.

The Unintended Consequences

The unintended consequence of this law is what will happen if lineup videos become admissible at trial. Witnesses at trial testify to their memory of events. However, the testimony occurs far after the event and is influenced by confirmation bias, as mentioned earlier. The lineup, as designed by the law, will be relatively free of confirmation bias and will occur much closer to the event.18 Videos showing how witnesses react, how long they take to identify the suspect, and their mental state at the time of the lineup are flatly probative. Defense attorneys will start to introduce videos showing that the prosecution’s star witness was not as strident about her memory during the lineup as she appears now. Likewise, a confident witness who identifies the suspect quickly at lineup is likely to be seen as more credible, frustrating defense attorneys trying to point out flaws in memory construction. While the videotape might cut either way, it seems to be a valid source of information for fact finders to consider. While not perfect, allowing the witness to “testify,” earlier on in the process, before memory has been tampered with, would be an improvement over the current system, rife as it is with cognitive drawbacks. Whether the video would be allowed as evidence (it is hearsay) depends on whether courts think it satisfies a state hearsay exception. Possible grounds for this include, in Illinois: Recorded Recollection19 and Certified Records of Regularly Conducted Activity.20

The law does say that witnesses can refuse to be recorded while viewing the photo lineup. If the consequences stated above manifest, there’s always the possibility that witnesses will be instructed to refuse videotaping as a matter of course by police. If this happens, it will frustrate the law. Either the courts or the legislature will have to save it; we’ll be watching closely to see how it goes.