Barry Scheck on eyewitness ID best practices

In its coverage of last week's initial meeting of the Court of Criminal Appeals' Criminal Justice Integrity Unit, Mary Alice Robbins at Texas Lawyer described a presentation by national Innocence Project co-director Barry Scheck regarding best practices for eyewitness ID procedures:

The meeting also featured a presentation by Barry Scheck, co-director of New York's Innocence Project, on the use of a computerized photo lineup program. With the high-tech software program, photo lineups can be downloaded onto a laptop computer that law enforcement can take to a witness in the field, Scheck said.

Scheck said the computer makes an audio or video recording as the witness goes through the photo array so there will be some form of documentation of the identification procedure. Also in the computer is information about the witness, he said. That includes the witness' name, his or her description of the suspect, the distance the witness was from the suspect at the time the crime was committed, and whether the witness was under the influence of drugs and alcohol.

For those law enforcement agencies that prefer less high-tech procedures, Scheck suggested the folder method. With that method, the person administering a photographic lineup places each photo in a separate folder, Scheck said. The witness then looks at the photo in each folder separately.

The discussion above referenced Scheck's advocacy of "blind administration" of lineups, including his low-tech "folder method" for performing a random, blind photo lineup. Some agencies have said using blind administrators could add onerous staffing demands, but Scheck said that using either a laptop or the "folder method" could meet the blind administration requirement without additional staff. (See the national Innocence Project's web page on eyewitness misidentification.)

Scheck also told the CJIU about several best practices that are cost free and merely need to be mandated in the law. Chief among those is telling the witness that the perpetrator may or may not be in the lineup. This reduces error, he said, without reducing accurate IDs and costs nothing. Similarly, witnesses should be asked to describe their level of certainty in the identification in their own words, and officers should avoid admonitions to witnesses like, "you have to be sure." Scheck also encouraged audio or preferably video recording of lineups.

Another key, free best practice: "Fillers" chosen for the lineup should be matched to the original witness description instead of finding fillers who look like the suspect. For example, if a witness said the suspect had blue eyes but the person police pick up has green eyes, only blue-eyed fillers should be used for comparison. (See comments for the correction.)

Most of these reforms are free and do not reduce the rate of accurate IDs, said Scheck.

Scheck also advocated using "sequential" lineups instead of photo arrays, but acknowledged that more research needs to be done to definitively prove which is better. Recent research questions whether "sequential lineup advantage is dependent on lineup composition and suspect position," while other researchers insist it's the best way to go. More significant research projects currently underway may soon answer the question definitively, he said.

Related Grits coverage: New CCA "integrity unit" shows shift in establishment opinion about innocence reforms.