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I cannot understate the wide range of subjects raised by the words prison reform. When breaking it into components, I classify prison reform into three broad categories: criminal justice and procedures, incarceration living, and reentry.

In past posts about reentry, I looked at the Ban the Box bill and jobs as examples of what reentering citizens face. I’ve posted on the subject of incarceration living ranging from the Loss of Compassion for senior inmates to the link between Pork Bellies and Private Prisons. Topics about criminal justice include Indefinite Immigration Detention and America the Confiner, which references the Pretrial Integrity Act of 2017, a bill that may make material changes in the world of money bonds.

This post is a deeper dive into criminal justice reform on a more granular level. The genesis of legislative reform is often found at the crossroads of science and compelling cases indicative of criminal justice problems that need to be fixed. California’s Senate Bill (SB) 923 attempts to change protocols. Let’s look at how science in one particular criminal case illustrates the need to change procedures surrounding how live and photo lineups are conducted in California.

Picking Cotton[1] is a New York Times best-selling book that tells the true story of the collision of the fates of Jennifer Thompson-Cannino and Ronald Cotton. In 1984, Jennifer Thompson-Cannino identified Ronald Cotton as the man who had raped her. As it turned out, Jennifer had incorrectly identified Ronald as her rapist, and his conviction was later reversed after he had served eleven years in prison labeled a convicted rapist.

When she was in college, Jennifer, who is white, was raped at knifepoint by a black man who broke into her apartment while she slept. She escaped and eventually identified Ronald Cotton as her attacker. Ronald, who looks like Jennifer’s actual attacker, maintained his innocence, insisting that Jennifer had mistakenly identified him.

As part of the criminal procedure leading up to the conviction, Ronald was picked by Jennifer from a simultaneous photo lineup of seven black men. This lineup of men’s pictures being presented together and then a subsequent live simultaneous lineup led to Jennifer’s misidentification and Ronald’s criminal conviction. Solid case, huh?

After eleven years, Ronald was allowed to take the DNA test that proved his innocence. He was released after living anyone’s worst nightmare for a heinous crime he had never committed. No words could describe the angst of those lost eleven years.

In 1997, Jennifer and Ronald met face to face and forged a friendship that only destiny could construct. Since then, their respective experiences have led them to work together to reform eyewitness identification procedures. Their story has become a classic example of the fragile nature of eyewitness testimony.

Mistaken Lineup Identity

According to Kirsten Weir’s 2016 American Psychological Association article, “Mistaken Identity,” the advancements in using DNA evidence to solve crimes began to take hold in the 1990s.

Beginning in the 1990s, forensic DNA testing has revealed hundreds of cases of wrongful convictions. In fact, eyewitness misidentification has played a role in more than 70 percent of wrongfully convicted individuals, according to the Innocence Project, an organization that works to exonerate wrongfully convicted people.

Over time, there have been a growing number of DNA-fueled exonerations, and law enforcement agencies have started paying closer attention to the science of memory and identification. The 1995 trial of O. J. Simpson was the first high-profile case in which DNA evidence was brought to the public’s attention. According to Weir, “in the 1990s, police departments across the country began making changes to lineup procedures, such as presenting possible suspects one at a time rather than all at once.”

The Accuracy of Lineups

While lineups appear to be simple tests of recognition, their reliability has been questioned by psychological scientists who have studied eyewitness accounts. An American Judicature Society (AJS) report on national eyewitness identification field studies notes that when broken down into psychological parts—procedural elements known as system variables—the justice system can control the accuracy of eyewitness identification evidence. Lineups, according to the AJS report, whether presented live or through photos, are either simultaneous or sequential.

The lineups we’ve seen on television and in the movies, where a bunch of guys are marched out in a line and stand with height measurements behind them, are what simultaneous lineups look like. Lineups that are sequential have members shown to the witness one at a time and the witness is asked to decide on each person before seeing the next. Scientists have not always agreed whether one method of lineup (in person or using photos) is favorable over the other.

On this topic, the AJS study found that “overall, the DB[2] sequential lineup produces a better ratio of accurate identifications to mistaken identifications than the DB simultaneous procedure.”

The curious fact in Ronald Cotton’s misidentification case is that both systems of lineups were used; both systems resulted in Jennifer’s misidentification of Ronald. In the science of choice, there is a phenomenon called confirmational bias. In an online Psychology Today article entitled “What Is Confirmation Bias?,” Shahram Heshmat, Ph.D., discusses how the bias surfaces:

Confirmation bias occurs from the direct influence of desire on beliefs. When people would like a certain idea/concept to be true, they end up believing it to be true. They are motivated by wishful thinking. This error leads the individual to stop gathering information when the evidence gathered so far confirms the views (prejudices) one would like to be true.

Once we have formed a view, we embrace information that confirms that view while ignoring, or rejecting, information that casts doubt on it. Confirmation bias suggests that we don’t perceive circumstances objectively.

The notion of confirmation bias is persuasive to answering why Jennifer Thompson-Cannino’s picking of Ronald Cotton was, in her mind, accurate. In both the photo and the live lineups, she picked Ronald, but she was wrong.

SB 923 Supports Both Simultaneous and Sequential Lineups

SB 923 was introduced to amend California Penal Code section 859.7 relating to criminal procedure concerning eyewitness identification. The stated purpose of the proposed bill, according to its co-author, Assembly member Marc Levine, is to “prevent wrongful convictions of innocent people by strengthening eyewitness ID standards.” Levine’s bill has four proposed pillar requirements:

  1. Blind/Blinded Administration: Blind/blinded administration of procedures prevents suggestiveness. In a blind lineup the officer administering the procedure is unaware of the suspect’s identity. If that is not practical, a “blinded technique” can be used such as the folder shuffle method in which the suspect and filler photographs are placed in separate folders, shuffled and handed to the eyewitness one at a time.
  2. Eyewitness Instructions: Prior to the procedure, eyewitnesses should be instructed that the perpetrator may or may not be in the lineup.
  3. Proper Use of Fillers: Non-suspect “fillers” used in the lineup should match the witness’s description of the perpetrator and the suspect should not noticeably stand out.
  4. Confidence Statements: Immediately following the lineup procedure, the eyewitness should provide a statement, in his or her own words, that articulates the level of confidence in the identification.
  5. Recording: The entire identification procedure is videotaped.

For more details about the bill, click here.

The California ACLU Supports SB 923

The California ACLU has posted its recent endorsement of SB 923 online.

Incorrect eyewitness identifications have played a disastrous role in the wrongful convictions of countless people in California and throughout the country. It’s about time California adopts statewide standards and best practices to make sure we keep innocent people out of prison. SB 923 will require that all state law enforcement agencies follow basic standards that have been proven to improve the accuracy and reliability of eyewitness identifications. The bill was approved by [the] Senate, but we still need your help to make sure it becomes state law.

Conclusion

Witness misidentification can be problematic, as we see it was for Ronald Cotton. Ronald got a second chance at life because DNA testing became a generally accepted procedure for solving crimes. With SB 923, California legislators wrestle with the problem of witness misidentification through the use of live and photo lineups. The passage of the bill will help level the playing field for men and women whose DNA can become their keys to freedom. Refining the lineup process, as proposed in the bill, makes sense and should have popular support among the people of the state of California.

Please share your thoughts and comments below.

 

Image courtesy of 123rf

[1] Jennifer Thompson-Cannino, Ronald Cotton, and Erin Torneo, Picking Cotton: Our Memoir of Injustice and Redemption  (New York, NY: St. Martin’s Press, 2009).

[2] DB (double blind) is when the administrator does not know the identity of the suspect in the lineup.

2 Responses to Senate Bill 923: California’s Attempt to Line Up against Witness Misidentifications

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