Chief Judge Easterbrook in the 7th Circuit ruled on a case yesterday in which the central issue on appeal was whether an ID was properly admitted over a motion to suppress, where all the members of the lineup were wearing identical prison clothes with navy blue slippers, with the exception of the suspect, who wore white tennis shoes — where eyewitnesses had described one suspect as wearing white tennis shoes. (cite: United States v. Williams, — F.3d —-, 2008 WL 1701843 (7th Cir. 2008)).
At oral argument, both parties argued that “common sense” supported their respective positions — for the defense, common sense tells us that putting the suspect in white tennis shoes where everyone else has exactly identical clothing makes the suspect stand out. For the government, apparently it has the opposite effect, or no effect.
But the court wanted more than common sense arguments, and it specifically requested empirical data in support of the arguments. Unfortunately, none was provided, and the court was forced to rule on the basis of battling “lawyers’ talk” alone — despite the fact that empirical data do exist on the question of clothing bias as it relates to identification procedures.
Drs. Jennifer Dysart and Rod Lindsay published a chapter in the Handbook of Eyewitness Psychology (vol. 2, 2007) that focuses on clothing bias, and reports that, in target-absent lineups, “clothing bias does lead to a significant increase in false identifications of innocent suspects.” (p. 143, citing Lindsay et al., Do the Clothes Make the Man? An Exploration of the Effect of Lineup Attire on Eyewitness Identification Accuracy, 19 Canadian J. Behavioural Sci. 463)). The same chapter cites to a number of other studies on the same topic.
Dysart et al. published another study in 2006 that revealed the significant effect of clothing bias in show-ups (Dysart et al., Show-ups: The Critical Issue of Clothing Bias, 20 Applied Cognitive Psychol. 1009 (2006)), and Freire et al. published a study showing a serious problem with clothing bias among children subjected to a lineup condition (Freire et al., Lineup Identification by Children:
Effects of Clothing Bias, 28(3) L. & Hum. Behav. 339 (2004)).
While there may be room for more research on this issue, to say that no empirical data exist is an unfortunate oversight.
The redeeming part of the decision, unrelated to lack of empirical data entered into the record on clothing bias, is Easterbrook’s observations on common sense as it relates to eyewitness identifications:
If there is one thing known about eyewitness identification, it is that ‘common sense’ misleads more often than it helps…The problem with ‘common sense’ is that experience tells us what leads to confidence about whether we have seen a given person before but does not provide reliable ways to test whether that confidence is justified. People confuse certitude with accuracy and so are led astray. Psychologists have established that certitude often is unwarranted. It takes data rather than intuition to answer questions such as “can non-uniform footgear in a lineup lead to misidentification?
In support of his observations on the failures of common sense as a guide to understanding the factors affecting eyewitness identifications, Easterbrook cites to Gio Shay and Tim O’Toole’s great article on the shortcomings of Manson v. Brathwaite (PDF), which systematically dismantles the Supreme Court’s obsolete framework governing the admissibility of eyewitness evidence.
Thanks to Gio Shay for the heads up on this decision.