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June 24th, 2016 
Awake Goy
The following post was shared with the CopBlock Network anonymously, via the CopBlock.org Submissions Page. It was originally published at the Pacific Standard by Sue Russell in September 2012 and reposted at Salon.com.
Why Police Lineups Can’t Be Trusted
The single biggest cause of wrongful convictions is mistaken eyewitness identification. Is there a better way?
Studies have shown that memory and recall are more fallible than failsafe. That finding undermines eyewitness identifications—a critical prosecution mainstay—revealing them as far more fragile evidence than imagined. Just ask Rickey Dale Wyatt of Dallas, Texas. On January 4, 2012, he was released from prison after serving 31 years of a 99-year sentence for a rape he did not commit.
The third victim, who had been grabbed from behind and dragged at knifepoint to a dimly lit area, was the first to identify Wyatt. Ultimately, all three picked Wyatt from photographic lineups. All had described their rapists as being between 170 and 200 pounds, between 5’9” and 6’, and as having no facial hair. Wyatt is 5’6”, was close to 140 pounds—and he had abundant facial hair and a mustache.
While Victim No. 3 identified Wyatt in the photo lineup, she had failed to do so in a live lineup (which wasn’t recorded). That failure, and knowledge of the lineup’s very existence, was withheld from Wyatt’s defense attorney.
Wyatt stood trial for one rape: the first. While his nephew testified that he’d never weighed more than 140 pounds, a police officer testified that after Wyatt’s arrest the suspect had lost approximately 30 pounds in 10 days.
Wyatt, then 25, declined a plea deal for a 5-year sentence and defended his innocence in front of a jury. He lost.
There was much that jurors did not know. Innocence Project lawyers who eventually fought to free Wyatt found that police and prosecutors held back exculpatory photographic evidence of the physical appearance mismatch—then-recent photographs showing Wyatt with facial hair, weight approximately 135 pounds. They also alleged that a report in which the third victim put her attacker at around 200 pounds was suppressed; at his sentencing hearing, the third rape victim publicly identified Wyatt as her rapist.
Wyatt’s complex case had more problems than just lineup problems, starting with an inadequate legal defense. Body fluid tests did not link Wyatt to the rape, and his trial lawyer failed to challenge it. The attorney also failed to present evidence like recent hospital records that would have shown Wyatt had facial hair.
Wyatt’s conviction was vacated thanks to the efforts of the Innocence Project and Dallas’s Conviction Integrity Unit and District Attorney’s office, which pushed for DNA testing. Also key: the city of Dallas’ propensity for saving physical evidence likely to have been discarded elsewhere to save on the cost of storage.
The need to reform eyewitness identification procedures has been recognized in recent years, but actual changes have lagged. Although the Department of Justice issued its “Eyewitness Evidence, A Guide for Law Enforcement” (pdf ) in 1999, calling for written protocols on eyewitness evidence, many U.S. police departments still lack written protocols. Last June, 10 states including Texas enacted legislation requiring all law enforcement agencies to create written procedures.
Misidentification is the single biggest common denominator in wrongful convictions, and a factor in 72 percent of cases overturned by DNA nationwide. In 50 percent of those convictions, shaky eyewitness testimony was not shored up by physical evidence or other corroboration like a confession or informant testimony.
In 2001, New Jersey became the first U.S. state to adopt federally recommended guidelines on witness identifications after mounting awareness of the old methods’ fallibility (such as eyewitnesses being influenced by unintentional verbal or body clues from investigators).
But those improvements still didn’t go far enough, said experts.
The 2004 case of Larry Henderson, sentenced to 11 years for reckless manslaughter and weapons possession in connection with a fatal shooting in Camden, pushed New Jersey to examine its standards again.
In his appeal, Henderson argued that police had failed to follow the guidelines adopted in 2001 and that the police photo lineup conducted 13 days after the murder improperly swayed a witness to pick him out. The witness later testified that a police officer had moved the photographs around as if hinting which to select and that “there was pressure” to make a choice.
An appellate panel in 2008 called the Henderson lineup “a charade” and ordered a new hearing on the photographic evidence’s admissibility. The state appealed. In response, the New Jersey Supreme Court said that before it would address the issue, it wanted a full inquiry into procedures used in the state’s eyewitness identifications.
That’s when, says Barry Scheck, cofounder and co-director of the Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University, “they did something that courts should do much more with science and the law. … They remanded it to a special master, a very smart retired judge”—in this case former New Jersey State Appellate Judge Geoffrey Gaulkin.
Gaulkin’s task was to determine if New Jersey’s identification procedures were scientifically sound. He held hearings and reviewed more than 2,000 pertinent scientific studies published since the 1977 introduction of the Manson test. The test is a two-step process that first decides whether the eyewitness procedures police used to identify a suspect were impermissibly suggestive. If so, courts must then determine, using a five-part reliability factor test, whether the identification still should be admissible. Bottom line: even if there are problems with the procedure, unless there is a “very substantial” likelihood of an “irreparable” misidentification, courts must allow the identification into evidence.
In a June 2010 report (pdf), Gaulkin wrote that the short answer to the court’s question whether the test and associated procedures were “‘valid and appropriate in light of recent scientific and other evidence’ is that they are not.”
His report called for a major overhaul of the legal standards governing whether or not eyewitness testimony is allowed in court. And he recommended that memories be treated as “fragile, difficult to verify and subject to contamination.” During his research, he’d come to view them as more akin to trace evidence: “a fragment collected at the scene of a crime like a fingerprint or a blood smear, whose integrity and reliability needs to be monitored and assessed from the point of its recovery to its ultimate presentation at trial.”
Source Article from http://www.copblock.org/162095/police-lineups-false-identifications-wrongful-convictions/
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