Tagged: misidentification

I Am Sure That’s Him … I Think – Eye Witness Identification: Improper Showups

POST WRITTEN BY: Maria Dollas (’16), J.D. Pace Law School

Often, there are no witnesses to a crime other than the victim. Given the stress and state of the victim the question arises whether such conditions affect this lone witness’s ability to accurately recall the assailant. Things become more muddied when the police apprehend an assailant (not necessarily THE assailant who committed the crime in question) and the police proceed to do more than to merely present the alleged assailant to the victim.

In a 3-1 majority the Appellate Division Second Department recently held that the use of showup identification by police was unduly suggestive and that the victim’s identification testimony should have been suppressed. People v. James, ___ N.Y.S.3d ___ 2015 N.Y. Slip Op. 03864 (App. Div. 2d Dep’t May 6, 2015).

The discrepancy in the attributes of the person the victim described and the person actually caught were significant:  they varied in age, height, and attire. The victim described her assailant as about 20 years old, 6 feet tall, wearing a brown and white striped shirt. The person apprehended by police was 13 years older and 4 inches shorter. A striped shirt of a different color combination, in this case a red-and-blue striped shirt was found near a parked vehicle and not on his person. Nonetheless, the police presented the person apprehended in handcuffs to the victim. That alone might have signaled guilt. It was particularly suspicious since the person arrested was walking shirtless in the area.

Still, the victim was not able to identify her assailant. It was only when the police purposely placed the miscolored striped shirt across the defendant’s chest that that the victim conceded that he was her assailant. The victim did not request the shirt to be placed upon the apprehended individual. Initially, she could not and did not identify him. It was only after the police officer took active steps that the victim said he was the one.

There is no doubt that the crime was committed. There is however doubt as to the reasonableness of the police tactics in presenting the apprehended individual to the victim. Showups and other identification procedures are not to be so unduly suggestive as to violate due process. The primary evil to be avoided is a “very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968).

The law is not concerned with the number of witnesses but rather with the quality of the identification given. Even a slight deviation from permitting the victim to objectively determine whether the person presented to her as the assailant taints the process. The circumstances in this case are not free from coaxing the victim even so slightly as to whether the right shirt and therefore the right person is in custody.

Additionally, the identification here may have been a cross-racial one:  the assailant was described as a light skinned black male, the victim was only described as a 22 year old female and her skin color was not noted. Ordinary human experience indicates that some people have greater difficulty in identifying members of a different race than they do in identifying members of their own race. See Gary L. Wells & Elizabth A. Olson, The Other-Race Effect in Eyewitness Identification: What Do We Do About It?, 7 Psychol., Pub. Pol’y & L. 230 (2001).  Here, an already challenging identification may have been even more problematic by irresponsible police tactics.

The people’s burden is not only to prove beyond a reasonable doubt that a crime was committed but justice requires that the defendant is indeed the person who committed the crime. One person wrongly identified is one person too many whose liberty and life may be irrevocably altered because of the procedural missteps of others. Misidentification and its consequences can also happen to you and me.

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Professor Gershman Conducts Eye Witness Identification Exercise in Criminal Procedure Class

POST WRITTEN BY: Annmarie Stepancic (’15), Pace Law School

I was part of a fascinating experiment in my Criminal Procedure Class at Pace Law School, which powerfully brought home the dangers of mistaken identification and wrongful conviction. On Thursday, April 24, 2014, class began in its ordinary fashion – a student was called on to discuss the facts and holding in United States v. Wade388 U.S. 218 (1967). About ten minutes into class, we all learned that this was no ordinary criminal procedure class when a man suddenly stormed into the classroom. According to students’ accounts of the event, the man approached the Professor, Professor Bennett Gershman, and shouted, “Hey Gershman, remember me? You fucking failed me last year.” The intruder then pulled out a gun with his right hand (a “black Glock semi-automatic pistol,” according to some students), and stated, possibly two times, “Give me your wallet.” One student stood up, but the man ordered her to sit down. The man ordered everyone in the class to stay seated. The Professor gave up his wallet and the man ran out. The whole event, according to students, lasted anywhere from thirty seconds to a minute and a half.

A Pace Security guard came in moments later. Professor Gershman assured him that everything was OK. Professor Gershman asked the students not to talk to each other and to write down a brief description of what they just observed, including a description of the assailant.

After the students did so, Professor Gershman dimmed the lights, pulled down the screen, and projected a photographic array of males of similar age and facial characteristics to the intruder.   The students were asked to try to identify the intruder from the photos. Prof. Gershman specifically admonished the students that the perpetrator might or might not be in any of the photos.

Here are the results:

  • Photo #1 – 1 student (1%)
  • Photo #2 – 7 students (9%)
  • Photo #3 – 1 student (1%)
  • Photo #4 – 9 students (12%).
  • Photo #5 – 41 students (55%).
  • Photo #6 – 9 students (12%)
  • Six students reported that the assailant’s photo was not present in the array (7%).

The intruder’s photo was photo #5.

After the students made their selections, the “intruder,” was invited in along with the Greenburgh Chief of Police, Chris McEnery, a Pace Law School alum and a wide-ranging mini-symposium on the constitutional, ethical, and policy rules governing eyewitness identifications began. Specifically, the discussion focused on, as Justice Brennan famously observed in the landmark case of United State v. Wade, how

the annals of criminal law are rife with instances of mistaken identification.

A review of the student responses apparently reveals that most of the students got the prominent facts right, but varied on lots of subsidiary details, and that they omitted important facts. Even though the students were shown the photo array approximately five minutes after the event, only 55% correctly identified the perpetrator in the photo array lineup. It is critical to note, of course,  that real eyewitnesses would not be shown a lineup – corporeal or photographic – so quickly after an event, when the event is so fresh in the minds of the observer, as was the case in our class. As social science and scientific research demonstrates, memory retention – particularly the memory of an eyewitness – dissipates over time.

NY Appellate Court Upholds Vacatur of Conviction Based Upon DNA Evidence

On February 27, 2014, the NY Appellate Division, First Department, unanimously affirmed a prior judgment entered in Bronx County of New York (Clark, D.), vacating Tyrone Hicks’ conviction for Attempted Rape in the First Degree (PL § 110/130.35[1]) and Attempted Sodomy in the First Degree (PL § 110/130.50[1]), based upon his presentation of DNA evidence that had been unearthed by his lawyer, Professor Adele Bernhard of New York Law School. At trial, the only evidence linking Hicks to the crime was the uncorroborated eyewitness identification by the victim. The jury rejected Hicks’ alibi defense, which consisted of testimony from his son-in-law, who claimed that Hicks was home when the attack occurred.

In 2009, Professor Bernhard, who directs the NYLS Post-Conviction Innocence Clinic, successfully obtained testing of genetic material found under the victim’s fingernails that had been collected shortly after the crime. The results of such testing concluded that there was male genetic material recovered from the victim’s fingernail scrapings that did not match the defendant’s DNA. Professor Bernhard petitioned the court to vacate Hick’s conviction based upon both the DNA results, and the likelihood that Hicks had been misidentified as the assailant.

In vacating Hicks’ conviction, the Bronx County Court concluded that a new trial was warranted under CPL § 440.10 (1) (g), since the results of the DNA testing “could not have been discovered prior to [Hicks’] trial,” and were “unquestionably material to the issues of identity” – undermining the “sole evidence connecting [Hicks] to the crime.” The court observed that “the DNA test results ruling out the defendant’s genetic profile [had] pronounced forensic value where there [was] multiple differing descriptions of the perpetrator by the sole identifying witness and no physical evidence linking the defendant to the crime.” Id. at 4.  The court explained that the jury may have seen it to be “a particularly powerful piece of evidence, especially where the identity of [the] attacker was the primary issue at trial.”

The Appellate Court upheld the lower court’s decision to vacate the conviction based upon the defendant’s showing that the DNA results created a “reasonable probability that he would have obtained a more favorable verdict.” The Court also concluded that “the DNA evidence [was] material and exculpatory because it support[ed] identifying someone other than defendant as the attacker.” Notably, the Court rejected the government’s claim that the DNA results were cumulative, and not newly discovered under CPL 440.10 (g). Specifically, the Court noted that given the recent amendments to CPL 440.10, namely CPL 440.10 (1) (g-1), the defendant “no longer ha[d] to show that the results of [DNA] testing is newly discovered evidence in order to seek vacatur of a judgment of conviction.”

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