Mistaken Identification Results in Yet Another Wrongful Conviction

Just this last week, still another story appeared in the news about a man who was a victim of mistaken identification.  That mistake resulted in his being wrongfully incarcerated in a Florida prison for almost 14 years.  The story appeared in the Sun-Sentinel on October 29, 2007 and is reprinted here in its entirety:

When a bad ID by an eyewitness can land an innocent man in prison for almost 14 years, it's time to kick-start change, says Broward Public Defender Howard Finkelstein.

Trying to remove bias from what he says can be misleading police-lineup procedures, Finkelstein sent a letter last week to Broward law enforcement officials suggesting reforms. This action brings Broward in line with a growing national movement to prevent mistaken witness identification.

The DNA exoneration last month of Larry Bostic, 50, of Fort Lauderdale, prompted Finkelstein's Oct. 23 letter.

A Broward judge tossed Bostic's prison sentence -- 13 days shy of its completion -- after DNA tests showed he was not the man who raped a Fort Lauderdale woman in 1988.

Bostic's accuser recently told an investigator she never saw her rapist. She picked Bostic out of a photo lineup, she said, because she had seen him in the neighborhood in the days before the attack.

Simple extra precautions could keep this from happening again, Finkelstein said.

"These procedures will impact the human cost of misidentification," he said. "This isn't about pointing the finger at law enforcement. This is about making sure the methodology and the systems we employ are designed so innocent people don't get ensnared in our system."

Bostic is the 208th person nationwide to be cleared of a wrongful conviction by DNA, according to the Innocence Project, a New York-based legal advocacy group. Mistaken identification is the common thread in 75 percent of those cases, the group said.

Most of Finkelstein's proposed changes spring from the work of Gary Wells, a psychology professor at Iowa State University who has studied the reliability of eyewitness identification for three decades.

One of the greatest fallacies about it is its reliability, Wells said. "It's highly persuasive," he said, "but it's more persuasive than it is reliable."

In Broward County, witnesses look at photo lineups in groups of six, often referred to as a six-pack. A suspect's mug shot is included with mugs of five other people who look similar.

Finkelstein is asking for witnesses to look at mug shots one at a time.

"When they're handed individual pictures, they're concentrating on the picture in front of them and the image that they have in their mind, as opposed to trying to compare and contrast ... and trying to decide who looks most like the person, in their mind," said Broward Assistant Public Defender H. Dohn Williams, who researched the topic with Finkelstein.

Finkelstein is also asking that witnesses be told, before viewing a lineup, that the suspect may not be included.

Otherwise, according to Wells, the expert, witnesses feel pressured to decide on one person and home in on the person who looks most like the perpetrator, rather than relying on true recognition. "I call that a relative judgment," he said. "Because what they're doing is deciding who looks most like the perpetrator relative to the other lineup members."

Broward Sheriff Al Lamberti and Fort Lauderdale Police Chief Bruce Roberts each received the letter and were reviewing it, their spokesmen said Friday.

"If we had concerns about the procedure, we would have changed the procedure," said Elliot Cohen, spokesman for the Broward Sheriff's Office. "But new ideas and new proposals are always worth looking at, and we'll take it in that spirit."

A year ago, the Broward State Attorney's Office initiated discussions with the Sheriff's Office about modifying its live lineup procedures.

Brian Cavanagh, supervising prosecutor in the homicide unit, advocates allowing witnesses to explain their certainty or uncertainty.

The current live lineup procedure is problematic, he said, because it's an "all-or-nothing" approach where witnesses must identify someone with certainty.

"Not everybody gets as clear a view as we would like them to get," he said. "Maybe they get a partial glimpse or a profile. Well, partial identification is better than none, especially in conjunction with other evidence. Life is not an all-or-nothing proposition."

Sixteen states considered legislation this year to prevent mistaken witness identification. Most recently, North Carolina lawmakers, in the wake of the Duke University lacrosse case, set procedures that law enforcement must follow when conducting a lineup.

Police there had used a flawed photo lineup to indict three players accused of sexually assaulting a woman at a team party in March 2006. They had included only Duke lacrosse players in the lineup they showed the alleged victim. In April, the North Carolina Attorney General's Office dropped all charges against the three players.

In the book "Actual Innocence," the authors correctly note that "[t]he powerful human drive to right a wrong, the instinct to improve a personal narrative that has taken a turn for the worse, cannot be denied. Neither can this fact: Eyewitness error remains the single most important cause of wrongful imprisonment. The face of a suspect is pressed into the soft putty of memory. Then it hardens into a shape. History is made. And the histories formed by mistaken identification are buttressed by every level of society. 'Juries seem disposed more readily to credit the veracity and reliability of the victims of an outrage than any amount of contrary evidence,' Prof. Edwin Borchard wrote in his 1932 classic, Convicting the Innocent."

The authors of "Actual Innocence" know what they're talking about since they have been personally involved in numerous cases in which victims of mistaken identification have been released from prison due to recently-discovered DNA evidence.

In an article entitled "Cross-Examining the Eyewitness," attorney James Doyle asked the reader to "consider this mock trial experiment. When the testimony of a single eyewitness was added to a mock trial fact pattern, the conviction rate rose from 18% to 72%. When the cross-examining defense lawyer managed to show that the single eyewitness was legally blind, the conviction rate plummeted--'plummeted,' that is, to 68%."

Yet in spite of such evidence and warnings, it is still commonplace for judges throughout the United States to not permit individuals charged with crimes to present at trial the testimony of psychologists who are experts in the field of eyewitness identification. In courtrooms throughout the country, experts are allowed to testify about such things as malfunctioning automobiles, botched surgeries, fingerprints, and DNA. Yet they are not permitted to testify about the phenomenon of mistaken identification even though misidentifications have resulted in countless wrongful convictions throughout the years.

Those opposed to juries being presented such evidence argue that jurors don't need the help of experts in order to understand that mistaken identifications can occur. However, it is simply not common knowledge that someone who is the victim of a crime may mistakenly identify someone as her attacker due to the stress of the event or the fact that her attacker is a member of another race. Jurors need to know these things, and experts in the field of eyewitness identification are well suited to impart such knowledge to them.