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How to avoid the perils of witness misidentification

By Wilson Dizard | Al Jazeera America | June 4, 2014

Part of the Al Jazeera America original series The System, exploring controversy within the criminal justice system.

On the day of the 1989 murder Brooklyn prosecutors said he committed, Jonathan Fleming was vacationing with his family at Disney World. But that didn’t stop him from spending half his life behind bars.

“I knew he didn’t do it, because I was there,” his mother, Patricia, who traveled with him to the theme park, told The Associated Press.

His alibi didn’t stop prosecutors from pursuing the case, claiming Jonathan Fleming flew round trip from Florida to New York just to kill his friend, Darryl “Black” Rush, that sweltering August day.

“When they gave my son 25 to life, I thought I would die in that courtroom,” said his mother.

Finally, in April, a judge released Fleming, now 51, on the grounds of misidentification, and prosecutors dropped the charges. The eyewitness recanted her testimony in 1990, but authorities had continued to maintain Fleming’s guilt, despite plane tickets and postcards providing an alibi.

“I feel wonderful,” Fleming told the AP after leaving prison into a world far different from the one he’d left. “I knew that this day would come.”

Such cases show that eyewitness testimony can have severe flaws, and police departments should always take a few simple steps to increase the chance of getting it right, say advocates for criminal justice reform.

According to the Innocence Project, a nonprofit group that uses DNA evidence to clear wrongfully convicted prisoners languishing behind bars or on death row, eyewitness testimony played a key role in 75 percent of the at least 316 people exonerated. The group says this statistic shows how wrong eyewitness testimony can be — preventing the convictions of the guilty and sometimes allowing the criminal justice system to destroy the lives of the innocent.

“Juries need to be able to understand that people make mistakes,” said Paul Cates, spokesman for the Innocence Project. “Memory is much more complicated than we ever thought, and it begins to deteriorate very quickly after the crime. It doesn’t tend to improve over time.”

The Innocence Project urges juries and prosecutors to take other evidence, like DNA, into account when considering an indictment or conviction. It also calls on police departments to uphold high standards of accuracy in suspect identification.

The stakes are high. Misidentification leading to a conviction can send an innocent person to prison for decades — or to die in an execution chamber.

Improving witness identification

The “best practices” for conducting a suspect lineup for an eyewitness, Cates said, include the option of not making any selection. Otherwise, the witness might feel pressured to choose — and then pick incorrectly.

Another progressive method, the “double blind” system, involves the law enforcement officer conducting the lineup or photo array. So as not to sway the eyewitness, the officer should also not know who the prime suspect is, hidden among other “filler” faces or bodies.

According to Cates, state laws on lineups vary significantly. Connecticut, Oregon, Maryland, Rhode Island, New Jersey, Texas, North Carolina, Ohio and Wisconsin have already adopted the changes recommended by the Innocence Project.

“My experience is, when you explain to law enforcement why these are best practices, they understand completely,” said Jennifer Dysart, a John Jay College of Criminal Justice professor who studies eyewitness identification.

“Law enforcement wants to do a good job,” Dysart said. “And they want to get the right guy.”

The same goes for prosecutors, said Kay Chopard Cohen, executive director of the National District Attorneys Association.

“While 30 or 40 years ago, eyewitness testimony might have been relied upon entirely, that is just not the case in today’s world,” Chopard Cohen told Al Jazeera in an email.

“Prosecutors use reliable evidence from a variety of sources that just weren’t available many years ago — examples like surveillance camera footage or DNA or smartphone information,” she said, adding that she doesn’t know any prosecutors opposed to double-blind lineups.

‘Binders full of young black men’

Critics argue that not everyone is on board with lineup reform, including the New York City Police Department, America’s largest municipal force.

“The NYPD is not using best practices. It’s been very frustrating for many people who are trying to reduce mistakes that eyewitnesses make,” Dysart said, adding that the department often has witnesses look through stacks of photos, instead of finding a suspect before presenting a true lineup.

One New York City woman, who asked that her name not be used, was mugged earlier this year at knifepoint on a subway platform. She described the daunting NYPD lineup process to Al Jazeera: “They bring you to a room with a bunch of binders. You flip through those binders, which are categorized by basic characteristics, age, ethnicity, and also, I think, they were people who had been booked for similar things before.

“Then they have a database on their computer, where you click through faces,” the victim said. “I probably went through a thousand or so.”

After she saw a face in the binders who looked like her attacker, police brought that suspect into a physical lineup. She identified that person again and was confident in her choice.

A grand jury indicted the suspect, and he took a plea deal, the victim said. She doesn’t know what sentence he received.

“I would rather have not named anyone at all than name someone and not be sure. These binders full of young black men … it’s oppressive,” she added. “But I saw the dude who did it.”

The New York Police Department did not reply to requests for comment on its lineup practices. The Manhattan district attorney’s office provided documents detailing its lineup practices, which do not include double-blind procedures, but did not provide further comment.

Cates at the Innocence Project said this process is fraught with the possibility of misidentification. He said following a photo lineup with a physical lineup is “pretty unique to New York.”

“The problem with this is that, once someone has picked a photo out of a photo lineup, there is a tendency for their memory to become tainted — so that they are going to pick the [physical] person whose photo they [had already] selected,” Cates said.

Read the full article on Al Jazeera America here.