Department of Justice Eyewitness Guidelines

A Point of View

David H. Fauss, M.S.M.

On July 6, 2017

Category: Getting the Job Done, Litigation Tips, Magnus, Magnus Insights, Magnus Research, Psychology, Trial Consultants, Trial Consulting

As I noted in a previous post, research into eyewitness accuracy was a starting point in my business partner/wife’s study of psychology and the law. I suppose it is normal in the course of things that science, specifically psychology, was ahead of the law. Law is usually based on precedents, while social science is based experimentation and hard data. Well, as of 2017, the law took a big step forward to catch up and utilize the science of the past 50 or so years of study in this area. In January of 2017, the Deputy Attorney General for the United States (Sally Q. Yates) issued a “Memorandum for Heads of Department Law Enforcement Components All Department Prosecutors” within the U.S. Department of Justice. The memorandum’s subject is “Eyewitness Identification: Procedures for Conducting Photo Arrays” and was a revision to its 1999 publication on this topic. As noted in the prior post, gauging the witness’ confidence in the identification he or she makes is an important component in evaluating her/her accuracy. However, beyond this, as the memo and related guidelines accompanying the memo point out, prosecutors and law enforcement need to update their procedures to ensure that the evolution of the research and practice of gathering eyewitness reports are taken into consideration. For example, the report points out that sequential administration of suspects in a photo array generally results in more accurate identifications than does the use of simultaneous administration of suspects. Other areas covered by the best practices procedures include: Location of the Photo Array; Photograph of the Suspect; Selection of Filler Photographs; Method of Presenting Photographs; Administrator’s Knowledge of the Suspect; Instructions to Witness; Multiple Witnesses; Administrator Feedback; and Documentation. It is important, of course, for attorneys involved in criminal matters with an eyewitness to be aware of these guidelines. Ensuring that law enforcement is up to date on the techniques utilized is critical to a case. Civil attorneys also have cases in which there is an eyewitness. Reviewing the literature on eyewitness accuracy is a worthwhile exercise in these cases to ensure the best case outcomes. It is impressive to see the DOJ take on a topic such as this. The memo and supporting materials, including an appendix of the science behind the newly recommended procedures, are worthwhile reading.

Another View

Melissa Pigott, Ph.D.

On July 6, 2017

Category: Getting the Job Done, Litigation Tips, Magnus, Magnus Insights, Magnus Research, Psychology, Trial Consultants, Trial Consulting

I will begin my part of this post by saying how impressed I am that David is interested in my colleagues’ and my research on eyewitness testimony. I am also glad that, after over 50 years of psychological research on this topic, the Department of Justice finally implemented procedures to enhance the accuracy of eyewitness’ identification. Better late than never, especially when there are serious ramifications for falsely identifying an innocent person, resulting in letting the true perpetrator go free, not to mention ruining the life of the innocent person. In my years as a graduate student whose research focused on eyewitness identification accuracy, I spent countless hours with the detectives in the police department at Florida State University. I was my research team’s designated police liaison and, as such, I was responsible for taking all of the photographs we had archived to the detectives so that they could structure lineups for our experiments. All of our experiments involved staging a crime like event, in which a perpetrator did something out of the ordinary, after which our experimental participants (who, in those days, were called “subjects”) attempted to describe the perpetrator, pick him out of a photo lineup, and indicate their degree of confidence in their decisions. I enjoyed watching the FSU detectives selecting 5 photos of men (all of our perpetrators were men who were undergraduate students on our research team) who matched, as closely as possible, the perpetrator. The detectives took their task seriously and they diligently tried to help me make our experiments as realistic as possible. This being said, there were absolutely no guidelines for the detectives to follow, such that each lineup was constructed according to a particular detective’s way of doing things. In that our “perpetrator” was not actually a criminal, and the “foils” whose photos were used in the lineup had no fear from the consequences of being falsely accused, there were no serious ramifications from the manner in which our lineups were constructed. We did the best we could, absent the type of DOJ guidelines that were implemented in early 2017, but as 50 years of research has revealed, sometimes doing the best we can do is not good enough. Many thanks go to my colleagues for conducting 50 years of excellent research; The Innocence Project (largely responsible for having overturned numerous wrongful convictions based on faulty eyewitness evidence); and the Department of Justice for assisting our nation’s well meaning law enforcement officers follow procedures that ensure the correct person is placed behind bars.

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