Reforms urged in Nebraska police lineup procedures
July 20th, 2015
Law enforcement agencies across Nebraska have quietly begun a major change in how eyewitness evidence is collected and utilized in criminal cases.
Nebraska became the latest state to move towards reforming how eyewitness evidence is obtained and used after a series of academic studies indicated old methods sometimes put the wrong people in prison. Thirteen other states have implemented standardized practices.
A model policy developed by the League of Nebraska Municipalities was distributed to all local law enforcement agencies this spring. The Crime Commission hopes agencies will use methods outlined in a â€œbest practices toolkitâ€ that came with the letter.
Itâ€™s hoped the new standardized procedures for conducting police lineups and photo IDs will replace older, and in some cases discredited, methods used to help witnesses identify possible suspects.
William Muldoon, the director of Nebraskaâ€™s Law Enforcement Training Center told NET News the center ended teaching the old methods.
â€œWeâ€™re seeing hard evidence of everything from wrongful confessions to wrong identification that we are not infallible,â€ Muldoon said. â€œThe best thing we can do is to realize what the shortcomings are and what we can do to mitigate them.â€
The guidelines encourage incorporating four practices in police lineups or identifications with photos of suspects:
- Have a â€œblindâ€ lineup, conducted by an officer unfamiliar with the identify of the real suspect.
- Remind witnesses the actual perpetrator may not be in the lineup.
- Other lineup participants, the “fillers,” should have features somewhat similar to the suspect.
- Have the witness write or record a statement about how confident they are in their lineup identification.
(CLICK HERE to read the best practices toolkit provided law enforcement)
A review conducted by The Innocence Project of the first 325 cases in which someone was found innocent through new DNA analysis revealed 73 percent were based on faulty eyewitness testimony.
â€œMany aspects of the traditional way that identification procedures were done actually work against reliability,â€ according to Karen Newirth, an attorney and specialist in eyewitness testimony working with The Innocence Project.
Last year The National Academy of Sciences issued a list of procedures proven to increase the reliability of eyewitness identification. The NAS report warned the legal community that â€œcaution must be exercised when utilizing eyewitness procedures and when relying on eyewitness identifications in a judicial context.â€
(CLICK HERE to read the full report on eyewitness evidence from the National Academy of Sciences)
Newirth believes changes in police procedures recommended by the NAS can help offset the understandable mindset of anxious crime victims.
â€œWitnesses naturally feel when they are called down that the police have caught the guy and so they go in thinking the perpetrator is in the lineup,â€ Newirth said.
Muldoon adds failing to understand how outmoded methods of conducting lineups can put police in an unwelcome position as well.
â€œThese are well-meaning detectives who locked up an innocent person and everyone was convinced of their guilt until the DNA exonerated them,â€ Muldoon said. He hopes teaching methods backed by solid research will minimize the risk of wrongful convictions and improve the odds of arresting the correct suspect in a crime.
Nebraskaâ€™s voluntary guidelines were developed late last year after the Innocence Project proposed a new law requiring Nebraska police change procedures. Representatives of the Crime Commission and League of Municipalities endorsed changing methods but doubted law enforcement would embrace rules mandated by state law. The Nebraska State Patrol, the Police Chiefs Association, the Sheriffs Association and the Police Officers Association all signed on, agreeing that voluntary guidelines would be more likely to find support.
â€œItâ€™s all on them now to adopt the policy,â€ Muldoon said. â€œI would expect thatâ€™s what the practice will become and weâ€™ve already started teaching this in the police academy.â€
The overall objective is to avoid having investigators signal a preference for a suspect they have detained.
Muldoon says the process of blind administration â€œis very easy.â€
During a visit to the Grand Island-based training center he demonstrated for a visitor.
The first step is in the instructions reminding the witness the goal is to ID the actual criminal, not just pick a photo that might look similar. Participants are told â€œthe person you saw may, or may not, be in the photographs you are about to view. Itâ€™s just as important to clear an innocent person from suspicion, as it is to identify a person as being guilty.â€
Next Muldoon laid out ten plain office file folders on the table in front of him. He slid photos of seven fillers, the fake suspects, into folders and put the photo of the detained suspect in an eighth folder.
He closes his eyes and shuffles the folders around before handing them to the witness. Â â€œIâ€™m not quite sure where the picture is,â€ Muldoon said emphasizing an important aspect of the process. Â Now I am ready to do a blind administration. Identifying one photo, or none, remains the responsibility of the witness without any hints or assistance.
(CLICK HERE to watch a training video on this method)
Nebraskaâ€™s guidelines do not specify recording the entire process, as some experts advise but the best practice recommendations encourage asking witnesses to write down reactions to their choice of suspects.
â€œLaw enforcement should ask the witness at the time they make the identification â€˜how confident are you in the identificationâ€™ and then record verbatim what the witness says,â€ Newirth said.
She referred to research indicating a witness testifying in court with absolute certainty sometimes is not nearly as confident months earlier at the lineup. They may have been influenced by their own desire for justice, media accounts naming the suspect, or a variety of other factors affecting memory months after the crime occurred.
Newirth says â€œhaving that initial statement of their level of confidence is really importantâ€ because at trial â€œconfidence is the single most important factor for juries in determining whether they believe a witness.â€
Chief Steve Lamken of the Grand Island Police Department, in his role as president of the Nebraska Police Chiefâ€™s Association, endorsed the new approach in a letter to the groupâ€™s membership.
â€œThe procedures provide additional steps that significantly increase the objectivity of witness identifications,â€ Lamken wrote. â€œWe need to move forward as a profession in adopting the soundest investigative procedures possible in Nebraska.â€
It is up to an individual law enforcement agency to decide whether to utilize the Crime Commissionâ€™s recommendations. Lamken told NET News he intends to make the best practices part of his department’s standard operating procedures. The Omaha Police Department had its first training session this spring. A spokesperson for the Nebraska State Patrol said NSP may â€œimplement aÂ part of the best practice methods.â€ Changes are under review by the patrolâ€™s commanders.
In December 2014, the Nebraska Crime Commission, Nebraska State Patrol, the Police Chiefs Association of Nebraska, the Nebraska Sheriffs Association, and the Police Officers Association of Nebraska agreed to support the statewide adoption of the model policy developed by the Nebraska League of Municipalities and the League Association of Risk Management Groups in Nebraska.
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