So Long “Six-Pack”
by Paul Bass | Dec 11, 2012 5:07 pm
Posted to: Legal Writes
If you see someone commit a crime, the police will no longer ask you to pick that person out from an array of photos. Instead they’ll show you one photo at a time.
And the cop showing you the pictures won’t know which one investigators consider a prime suspect.
That change is occurring in police departments all over Connecticut, including New Haven’s, as a result of the findings of a state commission investigating false identifications. It’s part of a nationwide response to a persistent problem: The wrong people going to jail for heinous crimes.
Some 50 detectives and police supervisors from New Haven’s department, which has already put those changes into place, gathered Tuesday to hear the “why” and “how” directly from two people who made it happen: retired State Supreme Court Justice David M. Borden and Chief State’s Attorney Kevin Kane.
The duo formed the commission last year that investigated the problem of false identifications. Then they recommended changes that the state legislature universally adopted. First major change: Having cops dispense of so-called “six-packs,” photo arrays of multiple suspects, in favor of showing eyewitnesses one photo at a time in “sequence.” (The arrays often have eight, not six photos, despite the nickname.) Witnesses looking at photo boards often shape their conclusions based on how one photo looks compared to another photo, as opposed to how a photo compares to the original memory, for instance.
Second major change: Making sure that the lead investigator in the case—or anyone familiar with the identify of a suspect—doesn’t show the photos. The idea is to avoid having the cop lead the witness through body language, for instance. “That corrupts the investigative process,” Borden said.
Click here for an example of a study showing how eyewitness IDs have proved more accurate when they result from “double-blind sequential” viewing of photos.
Since the legislature approved those changes, police departments have undergone training to adopt them. Borden and Kane made a presentation directly to local police chiefs. New Haven Police Chief Dean Esserman said he decided to invite Kane and Borden in person to discuss the broader issue, the reasons for the changes, and the genesis of the commission directly with the city cops charged with carrying them out.
“I want detectives treated like professionals, like lawyers and scholars getting the same presentation the chiefs get” rather than receiving a “piece a paper telling them about a new procedure,” Esserman said.
So Borden and Kane showed up at the end of Tuesday’s weekly “Compstat” meeting at police headquarters complete with a PowerPoint presentation entitled “The Science of Eyewitness Identification.”
Borden (pictured Tuesday with Charles Grady of the U.S. Attorney’s Office), who retired from the Supreme Court in 2007, described how he increasingly grew interested in the problem of false eyewitness identifications during his years on the bench. In 2005 he came across much of the emerging scientific research on the subject when he wrote the court’s opinion in State of Connecticut v. Laquan Ledbetter. His decision required cops to start telling witnesses that the perpetrator of a crime “may or may not” be pictured in a photo array.
Then Borden kept researching the issue in retirement, leading up to the creation of the commission. (Click here to read Hugh McQuaid’s coverage of one of the group’s hearings. Click here to read Borden’s testimony on the subject before a state legislative committee.)
Speaking to New Haven’s investigators and district managers Tuesday, Borden reported that 875 people convicted of crimes have been exonerated across the country since 1989; three-quarters of them had been convicted at least in part based on a false eyewitness ID. DNA evidence exonerated 275 of those people.
The state needs to use eyewitness testimony to convict criminals, Borden noted. At the same time, improper IDs not only put the wrong people in jail; they keep criminals on the street, potentially committing more crimes.
One challenge, researchers have found, is that memory doesn’t work “like a videotape,” Borden said. Instead, “it’s a malleable ... dynamic and selective process” that’s “distortable and corruptible” at every stage. The job of the cops is to try to preserve the integrity of that initial eyewitness memory the way they seek to preserve other evidence at a crime scene, such as bodily fluids, hair, or fingerprints.
For his part, State’s Attorney Kane described a Nixon-goes-to-China moment. For years he successfully lobbied the legislature to resist efforts by reformers to pass legislation to change the eyewitness-ID process. He feared the changes would limit cops’ hands unfairly. Then he arrived at the conclusion that the old process was flawed, that new research was convincing. So he and Borden decided to join hands to lead the effort to write workable rules.
Assistant New Haven Police Chief Archie Generoso, who oversees the department’s investigative units, endorsed the pair’s findings at Tuesday’s session. New Haven has begun using sequential photo displays in some cases as well as making sure that someone unaware of the identity of a suspect shows the photos to eyewitnesses, he said. The department is in the process of making those practices standard.
“More than anyone, we want to get it right,” Generoso said. “We want to be at the forefront.”