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In a move to reduce misidentifications in police lineups, a steadily growing number of jurisdictions across the country are adopting new procedures. Called a “sequential, double-blind lineup,” the person who administers it is kept in the dark about the identity of a suspect, and shows a witness only one photo or one person at a time in photo spreads or live lineups. In a standard lineup, an eyewitness is shown six people at a time and the administrator usually knows who the suspect is. Lawyers and law enforcement officials who use the new system report a drop in misidentifications, as well as a reduction in the number of challenges by defense lawyers to the fairness of the lineups. Jurisdictions that now use sequential, double-blind lineups include New Jersey; most of North Carolina; Santa Clara County, Calif.; Suffolk and Norfolk counties in Massachusetts, which includes Boston; and parts of Hennepin County, Minn., including Minneapolis. The new methods will start soon in parts of Wisconsin and more of Virginia. Even some prosecutors-who initially feared higher costs and fewer IDs of perpetrators-have been won over. “Juries more readily accept the accuracy [of these kind of identifications and] I sleep better at night knowing we have reduced the risk of a faulty eyewitness identification,” said New Jersey Deputy Attorney General Lori Linskey. “These DNA exonerations have been a wake-up call.” Of the first 130 DNA exonerations, 111, or about 78%, were mistaken-ID cases, according to the revised edition of Actual Innocence, by Barry Scheck, Peter Neufeld and Jim Dwyer. How it works Nancy Steblay, a psychologist at Augsburg College in Minneapolis who specializes in eyewitness identification, explained why these lineups are more accurate. “When a witness approaches a lineup . . . typically the six people don’t match their memory exactly-the lighting is different, for example-so the eyewitness will look at the simultaneous lineup and compare the people and make a relative judgment that this picture is a better match to my memory relative to this one,” Steblay said. If the perpetrator is in the lineup, he or she is likely to be the best match, she noted. “But the problem is that if the true perpetrator is not in the lineup, then there’s no mechanism for correction,” Steblay said. “It’s typical that a witness makes a choice anyway. Innocent people get chosen because of their resemblance.” Steblay added that in a sequential lineup, “a witness is asked to dig a little deeper into his or her memory to make a decision as opposed to comparing pictures.” The New Jersey attorney general, who has supervisory authority over all prosecutors and police officers in the state, mandated double-blind, sequential lineups in October 2001. That was in the wake of what Linskey described as a “perfect storm” of circumstances that led to the changes. Those circumstances included the exoneration of a man mistakenly picked out of a lineup, as well as a federal report indicating that the new lineup methods are more reliable. In addition, the New Jersey Supreme Court had overturned a rape conviction because the trial court had refused to give a jury instruction on the problems often present in cross-racial IDs. New Jersey v. Cromedy, 158 N.J. 112 (1999). Before the retrial, the defendant, McKinley Cromedy, was exonerated because DNA testing excluded him as a possible suspect. Also in 1999, the U.S. Department of Justice’s National Institute of Justice (NIJ) published Eyewitness Evidence: A Guide for Law Enforcement. According to the guide, “[s]cientific research indicates” that lineups and photo arrays are more reliable when done sequentially and that unintentional influences on witnesses could be avoided if the procedure was conducted by someone who didn’t know the identity of the suspect. On the heels of the Cromedy reversal, his subsequent exoneration and the NIJ report, Linskey said, “[we] got unofficial word from the [New Jersey Supreme] Court that if we didn’t make our identification procedures better they were going to limit [by court rules of evidence] our ability to use eyewitness identification in the absence of significant physical corroborating evidence.” Many prosecutors predicted doomsday, Linskey said. They feared that witnesses would be unable to identify suspects if the rules changed. “All the science was there-sequential was better-double-blind was the hard sell,” she said. Eighteen months later, the deal closed. The doomsday predictions proved wrong, she said, and anecdotal reports indicate that there are far fewer challenges to the procedures from defense counsel. Amy Klobuchar, district attorney for Hennepin County, Minn., asserted, too, that her office had seen fewer challenges in court by defense attorneys to its sequential, double-blind lineup procedures. “We’re not saying in any particular case that the other method is wrong, we’re saying that the scientific research shows that it does decrease mistaken IDs . . . .And its biggest benefit has been that it has bolstered the weight of the evidence. We’re able to explain that we’ve used this new type of identification.” ‘Violent’ opposition But the NIJ report did not indicate a preference for sequential procedures, and blind procedures were not discussed at all in the guide’s section that dealt with lineups. One of the 34 members of the group that drafted the report explained why. “The reason it was not a ‘best practice’ is that the NDAA [National District Attorneys Association] was violently opposed,” said criminal defense lawyer James M. Doyle, of counsel to Boston’s Carney & Bassil. An NDAA spokeswoman could find no official who recalled the organization’s taking a position, and did not provide a district attorney to comment on lineups. The DOJ did not return calls seeking comment. Doyle asserted that police are an easier sell than prosecutors. “The police are more open to improve the way they get IDs because they actually see a lot of mistaken IDs, so they’re used to the fact that confident eyewitnesses are going to make mistakes. Those cases never get to prosecutors.” People resist change, said Gary Wells, a psychology professor at Iowa State University, who is a specialist in eyewitness identification and was also a member of the NIJ study group. Wells and a colleague first proposed the use of sequential, double-blind procedures in 1985. “There’s this historical and cultural discomfort between eyewitness researchers and prosecutors,” Wells said. “[They] consider this research as a way to question and undermine the evidence they’re trying to offer, when in fact we’re trying to enhance it and make it more persuasive, and at the same time make it more accurate.” Wells has consulted with law enforcement officials in most of the major locales that have adopted sequential, double-blind lineups, including Wisconsin, where Attorney General Peggy A. Lautenschlager has recently recommended the procedures as a best practice. As in every state but New Jersey, she as attorney general doesn’t have the authority to order its use. Lautenschlager was spurred by the 2003 DNA exoneration of Steven Avery, who was incarcerated for more than 18 years for a rape that he didn’t commit. He was identified by the rape victim in a simultaneous lineup, then convicted despite having 16 alibi witnesses. Avery was freed after the Innocence Project at the University of Wisconsin Law School in Madison filed a motion requesting post-conviction DNA testing on biological evidence collected from the victim. That testing ultimately excluded Avery and identified the true perpetrator. Project co-director Keith Findley said the police had told the victim that they had a suspect in mind and that she approached the lineup believing the suspect would be in it. Wells thinks that Lautenschlager’s guidelines will spread across Wisconsin quickly, for the same reasons they have in North Carolina, where they are part of best practice guidelines, but not mandated. As soon as one county adopts them, defense lawyers in other counties will be asking why their clients haven’t received the same benefit, he said.

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