NEW YORK’S NEW IDENTIFICATION LAW How certain were you at the time your identification that you identified the real gunman? How good was the view you had of the gunman? How closely were you paying attention to the gunman? How well could you make out details of the gunman’s face? How easy was it for you to identify the gunman? How good of a basis did you think you had for making an identification? Karen A. Newirth knewirth@innocenceproject.org 212-364-5349

How Did We Get Here? People v. Caserta, 19 N.Y.2d 18 (1966): Photo identifications cannot come in on the prosecution’s direct case because (1) the jury would reach a negative inference about the defendant’s criminal record; and (2) it was possible to distort pictures. This rule was the codified into law and photo identifications could not generally come into evidence on the prosecution’s direct case.

What Followed From This Rule? Greater reliance on live lineups than in other jurisdictions; 2013 Police Executive Research Forum Survey: 94.1% of responding agencies used photo arrays; 21.4% used live lineups These lineups took on a very particular style The use of multiple procedures in nearly every case that went to trial and many other cases; A very specific way of trying ID cases in NY; An epic legislative battle over eliminating the rule in exchange for some reforms to the way identification procedures were conducted. NYSBA Wrongful Convictions Task Force Report (2009) MPTC Policy (2010) Justice Task Force Recommendations (2011) DAASNY Guidelines (2011)

And Elsewhere in the Universe… More than four decades of applied eyewitness identification research and hundreds of years of memory research; Scientific and law enforcement consensus on best practices in eyewitness identification procedures; Judicial recognition of best practices in eyewitness identification procedures in many states; Many states (19 currently) have legislated or voluntarily adopted reforms for eyewitness identification procedures.

Memory is not like a videotape. Ability to see accurately is limited. Perception is interpretive. Expectations affect processing. Memory is selective. Attention is selective. Memory is a reconstruction. Memory deteriorates over time. Memory is easily contaminated.

Forming Strong Memories: Estimator Variables jdysart@jjay.cuny.edu Forming Strong Memories: Estimator Variables Age Race Stress Distance Duration of the observation Weapon focus Duration between event and recall (retention interval) Attention Lighting Intoxication or other physiological conditions Disguise Age Gender Reduced lighting affects ability to encode details High stress affects ability to encode and store information Identification accuracy is significantly affected by the length of the event. Where a weapon is present, witnesses focus on the weapon to the exclusion of everything else, including faces Intoxication reduces the ability to encode and store information Also enhances weapons-focus

Preserving and Testing Memories: System Variables Factors within the control of the system Number and type of identification procedure Type of administrator Pre-procedure instructions Lineup composition Method of presentation Recording

Lineup Theory The lineup is a memory test that is designed to give investigators more information than they had before the identification It is not a reasoning task, but a recognition task Objectives for law enforcement: preserve the witness’s actual memory avoid any contamination construct true memory test

How do eyewitness memories get contaminated? Statements – and questions – by third parties (police, co-witnesses) Media reports Composites Memory Source Confusion Unconscious transference/Prior Familiarity Bystander Effect Multiple identification procedures Repeated recall Attempts by the witness at “making sense” of what happened

Best Practices for Identification Procedures Lineup as a Memory Test: Blind Administration Pre-procedure Instructions Fair Composition Recording, Including Confidence Statements Avoid: Multiple procedures Composites, mugbook searching/PIMS Showups after 2 hours Failure to do these things can increase: Rate of choosing Choosing client Certainty

Witness Instructions Suspect may or may not be present Investigation will continue whether or not you make a choice Witness does not have to choose Equally important to eliminate innocents Will take a confidence statement Do not discuss with others Consider the effect of biased instructions

Blind Administration forty years of general social science research supports blind: experimenter expectancy effect -- in the absence of a blind administrator, individuals typically tailor their responses to meet the expectations of the administrator. Goes both ways – intentional or unintentional cues but also the W looks to the cop for answers. Henderson case involved a witness who was not able to make a selection from a photo array, so the blind administrator left and the two investigating officers came in and spoke to the witness. He was then able to make an identification.

The Post-identification feedback paradigm [Wells & Bradfield, Journal of Applied Psychology, 1998] Witnessed Event Lineup identification Manipulation of feedback Measures Confirming: “Good, you identified the suspect.” Control: Nothing

% at high extreme

Reliability factors affected by suggestion Opportunity to view; Degree of attention; Certainty; Description; Time between crime and confrontation.

Types of Suggestiveness that Can Affect Witness Confidence and Memory Pre-identification feedback (Leippe et al., 2008) Suggestive lineups (Charman & Wells, 2011) Biased lineup instructions (Steblay, 1997) Non-blind administration (Garrioch & Brimacombe, 2011)

What Do We Know About Confidence? Under pristine circumstances, confidence has a good relationship with accuracy. Pristine = One suspect/lineup Suspect does not stand out Witness told the offender may not be present Blind administration Confidence immediately recorded Wixted & Wells (2017)

What Do We Know About Confidence? Where circumstances are not pristine, confidence has a statistically weak correlation with accuracy Confidence is highly malleable and is inflated by suggestive or biased procedures and confirmatory feedback (see Marshall) Witnesses don’t recognize when confidence changes Confidence is the most powerful single determinant of whether or not observers of that testimony will believe that the eyewitness made an accurate identification Confidence conveyed through nonverbal cues

Fair lineup composition Suspect should not stand out Appearance of individuals Appearance of photos Notable features One suspect per procedure Description vs. suspect match How to assess fairness?

Unfair Composition

The expected ID rate per lineup member is 16.8 (101 mock witnesses) 12% 1% 2% 3% 77% 6%

Lineup #2 1% -7% 12% → 2% 3% 34% 77% → 20% 6% → 33% 3%  4%

Effective and Functional Lineup Size Effective size: The number of viable choices in the lineup as defined by those that meet their expectation. (Wells et al. 1979) Fair 6 person lineup, functional size = 6 (1/.167 = 6) Functional size: Application of effective size to the suspect (divide the suspect proportion by 1).

What are the effective and functional sizes of this lineup (suspect = 4)? 12% 1% 2% Effective size = 1 Functional size = 1.29 3% 77% 6%

What are the effective and functional sizes of this lineup (suspect = 4)? 3% 34% 7% Effective size = 3 Functional size = 5 But for #1 = 2.9 20% 33% 4%

Meanwhile, Back in New York, 2017… NY State Legislature passes a series of amendments to existing laws that: Provide for recording of interrogations in certain circumstances; Make admissible certain photographic or video identifications on the prosecution’s direct case.

Admissibility of Photo Identifications “A pictorial, photographic, electronic, filmed or video recorded reproduction of the defendant” can be admitted on the prosecution’s direct case if it was conducted pursuant to a blind or blinded procedure. Via amendment to 60.30 and 60.25, hearsay exceptions that address the ability of a witness or third party to testify about prior identifications [A] “blind or blinded procedure” is one in which the witness identifies a person in an array of pictorial, photographic, electronic, filmed or video recorded reproductions under circumstances where, at the time the identification is made, the public servant administering such procedure:  (i) does not know which person in the array is the suspect, or (ii) does not know where the suspect is in the array viewed by the witness.   In order to be admissible on the direct case, the defendant must be notified pursuant to CPL 710.30(1)

What if the Procedure Is Not Blind/Blinded? Inadmissible on the prosecution’s direct case; ““The failure of a public servant to follow such a procedure shall be assessed solely for purposes of this article and shall result in the preclusion of testimony regarding the identification procedure as evidence in chief, but shall not constitute a legal basis to suppress evidence made pursuant to subdivision six of section 710.20 of this chapter.  This article neither limits nor expands subdivision six of section 710.20 of this chapter.”  

What About the Negative Inference? LIMITING INSTRUCTION ON IDENTIFICATION BY PHOTOGRAPH         Note: Effective July 1, 2017, CPL 60.25 and 60.30, under certain circumstances, permit a witness to testify to an identification of the defendant by “pictorial, photographic,  electronic, filmed or video recorded reproduction.”  Upon request of the defense, the following limiting instruction may be given the jury either at the time of the identification or during the court’s final instructions to the jury or on both occasions.          (Specify name of witness) testified that he/she was shown (specify) by a (specify, e.g. a police officer, detective). The police obtain (specify) of many people from a variety of sources, and for different purposes.  You must not infer from the fact that the police obtained a (specify) of the defendant that the defendant committed this or any other crime. [To do so would be unfair (and you have promised to be fair)].

The Law Also Requires DCJS to Create, Disseminate and Train On Evidence-Based Protocols DCJS must promulgate a standardized and detailed evidence-based written protocol that governs identification procedures and creates standardized forms for reporting and recording; DCJS must disseminate the written policies to all police departments and implement a training program “All members who will be involved in the administration of [an identification procedure] shall receive training on how to properly administer photo arrays.” “Shall” address: Selection of filler photographs or participants Pre-lineup instructions Documentation and preservation of results Procedures for eliciting and  documenting witness confidence statements Procedures for administering identification procedures so as to prevent influencing the witness

MPTC Policy: Definitions Blind procedure:  An identification procedure where the administrator does not know the identity of the suspect. Blinded procedure:  An identification procedure where the administrator may know who the suspect is, but by virtue of the procedures administration, the administrator does not know where the suspect is in the array viewed by the witness.  This procedure is designed to prevent the administrator from being able to inadvertently provide cues to the witness. Confidence statement:  A statement from an eyewitness immediately following their identification regarding their confidence or certainty about their identification.  The witness should be asked to provide their level of certainty in their own words as opposed to using a numerical scale.

MPTC Policy: Filler Selection Similar in appearance to suspect; Original description should be taken into account; At least five fillers; One suspect per procedure – if more than one suspect, use different fillers; Photo quality, color and size consistent; no stray markings/information; Any identifying information should be covered; And for live lineups: If necessary lineup members should be seated; Suspect should be allowed to pick his position – avoid prior position unless specifically chosen by suspect; Lineup members should remain still unless otherwise instructed; Where multiple Ws, suspect’s position should be moved each time assuming suspect and d/c agree.

MPTC: Inviting Witness to View the Procedure Neutral (“We’d like you to come in to view a photo array in connection with the crime committed on (date and location)”) Avoid addressing whether or not person is in custody; Should give no opinion on perception of witness’s ability to identify; Should not inform witness of any supporting evidence; Witness should be prevented from speaking to the victim or any other witnesses about the identification procedure when they arrive to view the array;

MPTC: Pre-lineup Instructions Perpetrator may or may not be pictured; do not assume I know who perpetrator is; focus on photo array and not ask me or anyone else in the room for guidance; Individuals may not appear exactly as they did on the date of the incident; photos may not always depict true complexion; pay no attention to markings or differences; Investigation will continue regardless of whether or not they make an ID; Advise about confidence statement in event of an identification. For live lineups: lineup members can be asked to move/speak/change clothing (?) but all lineup members must be asked

MPTC: Administering the Procedure Photos: “Blind procedure is preferable, where circumstances allow and it is practicable”; Live: ““Where practicable, taking into account resource limitations, a blind procedure should be used to conduct and administer a lineup, but is not required”; If blinded, should be done so that the administrator does not know the suspect’s position in the array until the procedure has been completed; Two person shuffle One person shuffle Stay out of W’s line of sight but able to view W and hear what they say; Multiple witnesses should be prevented from speaking to each other before, during and after the process and must view array separately but can use same array; Admin must remain neutral; Caution re: location; Generally, it is not advisable for a witness to be involved in multiple procedures involving the same suspect; For live lineups: security officer should remain out of line of sight of W.

MPTC: Post-Procedure Post-viewing questions Do you recognize anyone? If so, what number? From where? If vague/unclear, clarify Inform the witness that the investigation will continue Confidence statement Ask W to describe certainty using his/her own words without using a numerical scale Memorialize verbatim Document statements, etc. before describing next steps; Admin should not comment or make gestures on the identification itself; Witness should be told not to discuss procedure with other witnesses, nor should admin discuss any other procedures with the witness

MPTC: Documentation Any changes to any photographs; Where the procedure took place, who was present, date and time; Preserve the array in the original form shown to each W; Each W should complete a standardized form and the array should be signed and dated; Memorialize and document the entire procedure; Memorialize any physical/verbal reaction; if in writing should be verbatim Where an identification is made complete a CPL 710.30 form.

MPTC: Recording Use audio or video recording where practicable and where the witness has consented; Where audio/video recorded, consent must be documented. If no consent, that must also be documented. Audio/video may not be practicable, including: Jeopardize W safety Equipment malfunction Recording equipment otherwise being used Location not equipped and reasons for using that location do not subvert policy Inadvertent error or oversight No W consent

MPTC: Defendant’s Right to Counsel (Live) Defense attorney must be instructed not to speak in the viewing room when the witness is present;

Important Open Questions for Litigation How should courts treat non-compliance with the policy for purposes of due process claims? What about “blinded” – when is it OK? What about the two person shuffle? Victim veto on recording? Right to counsel at photo arrays? Application of statutory effective date – date of array vs. date of indictment vs. date of case? 710.30 notice issues Failure to notice because does not intend to admit / not blind or blinded – OK? If hearing reveals that procedure was not blind or blinded, renew preclusion argument (and take exception if denied) Jury instructions MA/NJ style instructions Cautionary instructions for failure to follow procedures

Thank you. Karen A. Newirth knewirth@innocenceproject.org 212-364-5349