The Texas Legislature is responding - legislation to require law enforcement agencies to have written eyewitness ID policies yesterday passed out of the House Criminal Jurisprudence Committee after already clearing the Senate. Now, Austin PD is taking the hint and creating a written policy on their own without waiting for legislative prompting. The Travis County Sheriff may follow suit, reports the Austin Statesman ("Austin police developing photo lineup policies," May 8):
Austin police officials said detectives use photo lineups dozens of times each month in cases that include homicides, sexual assaults and burglaries. Investigators use live lineups less frequently, although the department has written policies for how to do so.
Austin police Lt. Mark Spangler, who is charge of drafting the new policy, said detectives have historically relied on techniques used by previous investigators that have been passed from generation to generation.
Under those procedures, a lead investigator working on the case generally compiles a photo lineup involving the suspect and five others who have similar physical characteristics. In most instances, Spangler said, that same investigator also administers the lineup to victims or witnesses.
Spangler said the new policies probably will require that an investigator not associated with the case administer the lineup.
Austin defense attorney Bill Hines said he commends the police effort to adopt photo lineup policies. However, he said he thinks it is "embarrassing and shameful that they are only now coming into modern criminal jurisprudence."
These are important changes. The policy also needs to require that the witness be warned that the suspect may not be in the lineup, and that a failure to make an ID will not end the investigation. Investigators conducting lineups should also record a "confidence statement" from the witness declaring how sure they are of the identification in their own words.
Earlier this year Dallas PD decided to reform their lineup policies, mandating "blind administration" of lineups and that pictures be shown to a witness sequentially instead of as a group - a practice which further reduces chances of error.
Edwin Colfax of the Justice Project, who has authored an excellent public policy report (pdf) analyzing eyewitness ID policies at Texas police agencies, likes to say that eyewitness ID evidence should be considered more like "trace evidence" than some sort of evidentiary gold standard, and like other trace evidence, if not gathered carefully using correct procedures can become tainted, discriminatory and unusable.
Kudos for Austin PD for taking the initiative before the Lege forced them to do it.
See related Grits posts:
- Study: 88% of police and sheriffs have no written policy on eyewitness ID procedures
- Eyewitnesses in staged test only 8% accurate
- When eyewitnesses are wrong
- Exonerations educate courts, Lege on innocence
- 5th Harris County DNA exoneration an indictment of eyewitness IDs
- How much do eyewitnesses really see?
- Eyewitnesses and the 'feeling of knowing'
- Emotional pair of DNA exonerations argue for changing eyewitness ID procedures
- CCA Integrity Unit: Eyewitness ID reform should be top innocence priority