When seeing is believing

It seemed simple enough. The surveillance photos from the bank were good and were shown around to a group of Winnipeg detectives. One of them recognized the guy and he was brought in.

The supposed thief was shown the photos and he was cooperating. That was him in the pictures, alright. But he was emphatic. He said that he'd never ever been in that bank and that he sure as hell didn't rob it.

Well, he was partly right. He sure as hell didn't rob the bank.

But he was wrong when he identified himself. The right guy was eventually caught.

So now, imagine how difficult it might be for an eye witness, who catches a fleeting glimpse of a crime, to look at a photo array of 10 strangers and be asked to pick out the culprit.

Identifying someone has its challenges, yet for centuries, the criminal justice system, worldwide, has held such evidence in high esteem. Just like on TV.

But, according to a piece in the New York Times, American courts are beginning to question the relative worth of eye-witness evidence in light of research that suggests "memory is not so much a record of the past as a rough sketch that can be modified even by the simple act of telling the story."

Eye-witness identifications require the most careful scrutiny. That has become especially evident in light of the reports suggesting three-quarters of American DNA-based exonerations of wrongly convicted people came, at least in part, with faulty eye-witness testimony.

The reasons for flawed identifications are numerous. Witnesses may feel the need to help. They may feel pressured to help. The brain gets overloaded with too much information about the crime making it susceptible to suggestion. Some researchers theorize that memory can be embellished, unbeknownst to the witness and become crystallized by the time trial rolls around.

The example of the man who identified himself in the bank photo gives fodder to the notion that nothing is as obvious as it appears.

One researcher goes so far as to conclude that, "memory is designed not just to keep track of what has happened, but to offer a script for something that might."

While eye-witness testimony ought not to be eliminated from the court setting, there is growing thought that it should become less of a lynchpin.

To that end, researchers are developing ways to make eye witness evidence -- especially suspect identifications -- as reliable as possible and fair to boot.

In September, Gary Wells, a psychology professor at Iowa State University, released a new report comparing the accuracy of photo lineups when the suspects are presented to witnesses in sequence and those shown all at once, fixed on a single sheet (the way usually shown on cop shows.)

Wells found that the sequentially presented line-ups were substantially more reliable.

He adds that witness should not be subjected to unnecessary stress, should always be advised that the actual perpetrator may not be in the lineup and that there is no obligation to pick anybody.

A witness should never be told that he picked the right or wrong guy. In ideal circumstances the investigator showing the photos should not be involved in the investigation and not know which photo is of the suspect.

The Wells report also says that a statement should be taken from the witness when he is shown the photos to reflect the degree of the witness's certainty. The thought is that down the road some witnesses are prone to inflating their confidence in their identifications beyond what they were at the time of viewing.

And while the New York Times breathes a sigh of relief that the potential frailties of eye-witness identification are increasingly being considered in U.S. courts, Winnipeg can take some comfort. Its police service is way ahead of this curve.

The photo line-up protocols advocated by Wells and reported by the New York Times have been part of Winnipeg policy for more than a quarter century.

In the mid-1980s, our city police sponsored a major crime conference attended by investigators from across the country. One of the keynote speakers was Gary Wells whose presentation covered the issues carried in the Times.

And since that time, policies regarding suspect identification have been a reflection of Wells' work.

The Winnipeg police take it a step further with a more or less informal policy. Identifications, like statements from the accused, are nice to have. But investigators push further and are much more comfortable going to prosecution when the identification or statements can be backed up by evidence that is physical or scientific and not subject to the malleable mind.

Robert Marshall is a retired Winnipeg police detective.

rm112800@hotmail.com

Republished from the Winnipeg Free Press print edition December 10, 2011 J6