Top 5 Best and Worst Decisions of the Past Year Applying Manson

Courts routinely face cases where they have to apply Manson. Normally, the court runs through the Manson factors without much thought, and some of the decisions can be quite appalling, as you’ll see. But, let’s start with the best of the very rare good cases applying Manson, counting down from #5.

Number 5

Actually, I’ve included two good cases in the number 5 slot. Both have good language, but share the characteristic that the decisions took no judicial courage. One dealt with an obviously crappy ID procedure in Poland (that probably would have been upheld in 99% of courts if done in the U.S.), and the other involved a post-exoneration civil suit, where the court knew that the wrongfully convicted man had been misidentified.

In re Mazur, Slip Copy, 2007 WL 2122401 (N.D.Ill. July 20, 2007).
Extradition case in which US court considered ID evidence introduced by DOJ on behalf of the Polish government. The Court used great language in eviscerating the terrible line up procedure. The defendant was forced to wear a red jacket and was surrounded by men with “little resemblance” to defendant who all wore dark, subdued colors. The Court observed that “They may as well have made him wear a target on his chest or a sign over his head saying ‘pick me,’” “Indeed, the government’s reliance on this identification is shocking and offensive, particularly in light of the recent revelation that the red jacket was foisted upon him by the Polish authorities.” While the opinion is great, one can’t shake the suspicion that the fact that the ID happened in Poland influenced the Court (see, e.g., U.S. ex rel. Hendricks v. Washington, 1997 WL 43487 (N.D.Ill.,1997) (finding show up ID reliable)—the Court’s claim that the Polish “identification would never pass muster in this country” is rather suspect. Every day in the U.S. police use the even more suggestive one-on-one show up procedure with near impunity from courts.

Bibbins v. City of Baton Rouge, 489 F.Supp.2d 562 (M.D.La. May 11, 2007).
This is a civil case involving Innocence Project exoneree Gene Bibbins, raised a 1983 claim against the city and officers. The faulty ID procedure was a show up, before which cops allowed witness to view robbery proceeds, thereby suggesting that the person in custody was almost certainly the culprit. Court weighed Manson factors, and ultimately found that it could not as a matter of law say that there had not been a substantial likelihood of misidentification. Of course, it seems improbable that the Court would have used this same language in the initial case (keep reading for some terrible La. Cases). Here, due to DNA exoneration, we know the ID was mistaken even though the witness continues to believe that the defendant is culprit.

 

The Court’s discussion of two factors in particular were good and against the norm. First, the Court found opportunity to view “neutral” because the rapist was unmasked, but in dark room at night (normally this would be a huge strike against a defendant). Most importantly, on the “certainty” Manson factor, though witness was certain, the Court stated that there was a factual dispute about why she was certain, as a result of Dr. Gary Wells’ testimony about the effects of suggestive ID procedures on “certainty” (and, of course, because she was, in fact, mistaken).

In all, some good language in this case, but it would have taken a particularly callous court to find against an exoneree on summary judgment on the basis that as a matter of law there was not a substantial likelihood of misidentification (again, when in fact there had been a misidentification).

Number 4

State v. Sundberg, 2007 WL 4239205 (Minn. App. 2007) (unpublished opinion)

The Court affirmed the trial court’s suppression of the show-up identification which led to dismissal. First, the Court found the show-up unnecessarily suggestive, emphasizing that the police told the witness that they had “caught” the defendant and that he was “currently being detained.” The Court also found that the witness did not have an independently reliable basis for the ID. While the witness saw the perpetrators for 30-40 seconds, he was driving, 60 to 70 feet away, at night, and only saw their backs and clothes and could not ID their faces. The Court noted that a “description of two young males in hats, winter jackets, and tennis shoes was not particularly detailed or unique, given the time of year.” The fact that the witness thought one perpetrator was running with a limp, and that at the show up one defendant seemed to be favoring one leg, coupled with a short time between initial sighting and the show up, did not outweigh witness’s overall inability to observe the individuals and note distinctive characteristics. Not a groundbreaking case, considering that the witness never saw the perpetrators’ faces, but courts have still upheld ID’s where there was no facial recognition (see the bad cases below), so congratulations to the Court of Appeals of Minnesota for doing the right thing.

A Bad ID, and Bad Law, in Louisiana

In a recent Louisiana bench trial, eyewitness ID expert Robert Shomer testified in front of a judge in the 21st Judicial District on a collection of factors tending to undermine the reliability of eyewitness evidence. The local press reports:

Had the robbery case been tried before a jury, rather than a judge alone, the testimony of the specialist in eyewitness identification would not have been allowed. Because the defendant had waived his right to a jury trial, the judge permitted the testimony of Robert Shomer, an experimental psychologist who has taught at Harvard and UCLA.

The ID in this case was a police procedure in which the cops showed the witness a photo lineup including five color photos and one in black and white. It shouldn’t be hard to guess which one was the suspect, which one got picked, and which one ended up on trial and found guilty.

Though it didn’t persuade the judge in this case, Shomer testified as follows:

For a picture lineup to be fair, the pictures must be presented in the same format and should match the initial description of the perpetrator to the same extent, he said.

And:

Like a scientific study, a photo lineup should be presented in a double blind manner, he said. When the effectiveness of a drug is being studied, the nurse actually administering the drug shouldn’t know which patients are receiving the real drug and which are getting the sugar pills. That way, the nurse can’t, either consciously or accidentally, provide any indications to the patients, Shomer said.

In a photo lineup, the person showing the pictures to the witness shouldn’t know which photo is that of the suspect. Without intending to do so, a police officer might provide the witness with subtle clues as to which picture is that of the suspected person, Shomer said.

Unfortunately in this case, the judge was unable to get past the positive ID, notwithstanding the fact that it resulted from an unacceptably suggestive police procedure clearly calculated to induce the witness to pick their suspect.

There’s no question in my mind that this sort of police misconduct should result in an exclusion of any identification evidence, even under the ill-conceived current due process standard of Manson v. Brathwaite. And defense attorneys have to keep pushing that the standard be applied with teeth until Manson is eventually revisited by the Supreme Court.

Until then, expert testimony would seem to be an important remedial measure to educate juries about the fallibility of eyewitness testimony and stave off wrongful convictions. Except in states like Louisiana — and there are many states like Louisiana in this respect — where the courts don’t allow expert testimony in front of juries because they think the work of battalions of social scientists is common sense. This, despite clear evidence (PDF of poll of DC jurors) that it is far from common sense.

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Coke Machines, Willie Nelson Lookalikes, and the Failure of Manson v. Brathwaite

The following, from a real court decision:

Barnett testified that Mrs. Hayden told him the intruder was short and stocky, approximately 5’4 to 5’6 in height, that he had long hair, and that he was in his middle 20’s. At trial, Mrs. Hayden testified that she told Barnett that the intruder was between 5′ and 5’4 tall, that he had red hair, and that he had a red bandana tied around his head. Later in the day, after defendant had been apprehended, Deputy Barnett called Mrs. Hayden, told her he thought they had caught the person who had broken into her home, and asked her to come to the courthouse to see if she could identify the suspect. She went to the courthouse where she viewed a lineup. The lineup, which was reminiscent of a scene from the television show Saturday Night Live, consisted of the defendant, who bore a resemblance to a diminutive look-alike of country singer Willie Nelson, red bandana and all, five other men, the shortest of whom was 5’11 tall, and a red Coca-Cola machine. Defendant was the only person in the lineup who had red hair and who was wearing a red bandana as a headband. At the motion to suppress hearing, Mrs. Hayden was asked if defendant was the only person in the lineup with red hair. Her reply was, “I didn’t notice the other ones because when I saw him, I knew it was him.”

In case you missed it, or tend to skip over block-quoted text, the police in State v. Kiplinger (591 S.W.2d 207 (Mo.App. S.D. 1979)) used a Coke machine as a filler in a lineup, presumably to minimize the extent to which a red-headed suspect — wearing a red bandana — stood out from other members of the lineup. Further to that end, the police included five other men 5’11” or taller, to draw attention away from the 5’4″ miniature Willie Nelson lookalike.

But the most astonishing thing about this case is not the lineup itself, nor is it the egregious police negligence, incompetence, and general disregard for the rights of the accused. The most astonishing thing about this case is the fact that the appellate court held that the lineup did not run afoul of due process.

This case is a stark illustration of the failure of the Manson v. Brathwaite due process standard for the admissibility of eyewitness identification evidence. The Supreme Court in Manson told us that “reliability is the linchpin” in the admissibility analysis for eyewitness evidence, which on its face doesn’t sound all bad. When there is a suggestive procedure, courts should look to other “indicia of reliability” — the classic factors, including the witness’s opportunity to view the perpetrator, the accuracy of the prior description, and (science notwithstanding) the confidence of the witness.

But the Manson court didn’t stop there. The Supreme Court held that against those “indicia of reliability” should be weighed “the corrupting effect of the suggestive identification itself.” Which is to say, the presence of suggestive procedures was not intended to be relegated only to the first prong of the analysis, as a threshold requirement to be met prior to engaging in a reliability analysis. Rather, the corrupting effect of the suggestive procedure itself was intended to be carried over into the second step of the analysis, for a determination as to whether or not the “indicia of reliability” outweigh that effect. In a case like the one quoted above, at best it should be impossible to extract any indication of independent reliability from a procedure so corrupting, such that the corrupting effect should easily be found to win the day.

But instead, that court — and nearly all courts since — managed to omit a fundamental step of the analysis set forth in Manson, namely that the corrupting effect of the procedure itself should be considered in determining the overall reliability of the identification evidence. The unfortunate reality is that Manson has been interpreted to mean, in direct contradiction to the clear language of the decision, that if the circumstances surrounding the original viewing of the perpetrator are found to be sufficiently reliable, even the most egregiously suggestive procedure will be excused and overlooked.

The result is that courts allow eyewitness evidence in front of juries from procedures that they themselves liken to a Saturday Night Live skit. I’m not sure that the Comedy is the right literary vehicle for the story of wrongful conviction.

(Thanks to occasional fellow-blogger Zeke for digging up this case.)

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Stress Effects on Eyewitness Recall

It’s a recurring theme in eyewitness testimony: “My adrenaline was racing, so I’ll never forget that face.” Or, “I was terrified; his face is burned in my mind.” As if fear is a veritable steroid for memory. Witness after witness reports the belief that there is a positive correlation between the level of stress of an event and the level of detail at which the witness recalls the identity of the perpetrator, as if the presence of stress heightens the witness’s attention and, in turn, her ability to recall details later. A poll of potential jurors (PDF) conducted by the Public Defender Service for DC confirmed the prevalence of this commonly held belief.

It turns out that the opposite is true (DOC), but courts continue to consider evidence of stress in their analysis of the reliability of eyewitness identifications, as a factor that heightens reliability, rather than diminishes it. As one stark example, just last month, the U.S. District Court for the District of Massachusetts handed down this decision (PDF) in U.S. v. Loren Harty, in a firearm possession case.

In applying the Manson due process analysis for the reliability of an eyewitness ID, the court first considered the suggestivity of the identification procedure — in that case, a field show-up. On that prong, it found “[t]hat elements of suggestiveness infected the showup in Harty’s case” to be “beyond doubt.” Indeed, observed the court, “[t]he manner in which Harty was displayed beside the police cruiser braced between two uniformed officers would have made it clear to any reasonable witness that the police were convinced that they had their man.” But on to the so-called “reliability factors,” under Manson v. Brathwaite. In considering the witness’s “opportunity to view,” the court considered that the witness had been chased into a building, that the assailant had fired shots into the floor as the witness ran up the stairs and threatened to kill the witness. And how did this weigh on the reliability of the ID that sprung from this series of events? Astonishingly, the court found that “These are events that tend to focus a witness’s attention.” (!)

Study after study (DOC) has confirmed a negative correlation between stress and the accuracy of eyewitness recall. That is, the more stress undergone by a witness at the time of an event, the lower her ability to recall the details of that event — including the identity of the perpetrator.

One striking example of this negative correlation is worth bearing out in some detail. In a 2004 study by Charles Morgan, et al., researchers used a military “survival training” scenario to test the correlation between stress and accuracy of recall. Morgan et al., Accuracy of eyewitness memory for persons encountered during exposure to highly intense stress, Int’l J. of L. and Psych., 27, 265-279. The test subjects were active-duty military personnel, with an average age of 25 and average length of service of 4 years.

Each subject underwent both stressful and non-stressful interrogation room scenarios, after which the subject’s ability to recall the identity of the interrogator was tested through various methods. In the stressful scenario, subjects were confronted face-to-face with an interrogator, in a well-lit room, for a full 40 minutes. When asked to select that interrogator that the subject had faced for 40 minutes in a small, well-lit room, only 34% were able to correctly identify that same interrogator from a photo lineup — compared to 76% who were subjected to a similar, but low-stress scenario. Further, (in a different sample) 68% of the high-stress subjects selected someone other than the interrogator from the photo lineup, compared to only 12% in the low-stress scenario.

This study puts a pretty fine point on the effects of stress on eyewitness recall. If witnesses subjected to a 40-minute long interrogation session, in the most ideal, controlled viewing conditions can only accurately identify an interrogator 34% of the time, and similarly make a false identification 68% of the time, it seems abundantly clear that — at the very least — courts are going astray when they consider gunshots and homicidal threats as “events that tend to focus a witness’s attention.” These are events with a strong tendency to do quite the opposite, and the science is in on this one.

From the same paper, this sums it up:

Contrary to the popular conception that most people would never forget the face of a clearly seen individual who had physically confronted them and threatened them for more than 30 min, a large number of subjects in this study were unable to correctly identify their perpetrator. These data provide robust evidence that eyewitness memory for persons encountered during events that are personally relevant, highly stressful, and realistic in nature may be subject to substantial error.

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Ledbetter Resurfaces, with Teeth

An interesting case came down earlier this month from an appellate court in New Jersey, in which a conviction was overturned for the failure to give jury instructions on a collection of issues relating to a faulty eyewitness identification. Not surprisingly, the court in State v. King (Westlaw — acct. required) didn’t find Manson to possess enough force to keep a bad ID out of court, but it did find that the great Ledbetter decision from Connecticut had teeth enough to overturn the conviction for failure to instruct the jury on the eyewitness ID pitfalls at play in the case.

The court found that the police investigators conducting the lineup “may have suggested” that their suspect was in the lineup, did not instruct that the perpetrator might or might not be present, and where the witness’ description included a facial marking, only the defendant’s photo matched that description, showing a noticeable scar. Citing Ledbetter and the NJ Supreme Court’s Herrera decision, the court found that instructions on suggestivity and other procedural flaws were warranted, and reversed on those grounds.

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Recent (disturbing) cites to Manson v. Brathwaite

Manson v. Brathwaite is the seminal Supreme Court eyewitness ID case, which set out the constitutional standard governing the admissibility of eyewitness evidence in criminal courts. A couple of recent cites to Manson caught my attention, insofar as they highlight a couple of the myriad problems with the status quo re: admissibility standards and judicial reasoning on the subject of eyewitness ID reliability. Cites and quick summaries below.

In the first, a federal judge inexplicably relies on the eye contact skills native to the work of an insurance agent to find heightened reliability of an ID, with no empirical basis to speak of:

U.S. v. Welch, Slip Copy, 2007 WL 119954 (E.D.Pa., Jan 09, 2007)

Photo show-up in which federal agents arrived at witness’s workplace and showed single photo (driver’s license) to witness, and asked if witness knew the person. Witness said yes, that’s the guy who opened the fraudulent account you happen to be investigating. Court found that anticipated in-court ID was sufficiently reliable and not the result of a tainted process, citing the “benign motive” of the agents in conducting the photo show-up (they only haphazardly discovered that the office where the witness worked was across the street from the house they were searching, so decided to “stop on by” given that they were “unexpectedly” there during business hours). Court also relied on opportunity to view (5-10 minutes in well-lit room), and the “skill and appreciation for the importance to make eye contact” in the work of an insurance agent.

In the second, a state appellate court relies on the myth that law enforcement officers are better at identifying/recalling culprits than other people:

State v. Biggs, — S.W.3d —-, 2006 WL 4007009 (Tenn.Crim.App., Jul 21, 2006)

Photo show-up two months after incident, in which witness was undercover narcotics agent. Fourteen months after incident, witness was unable to ID defendant in court. Despite needless suggestivity, court found ID reliable, citing three opportunities to view (longest being two minutes), and also relied on the erroneous observation that cops are better at IDing than lay people.

How do we know this judge’s assumption is wrong? Because decades of research tell us so. Here are a few quick examples:

Christianson & Karlsson, Police personnel as witnesses to a violent crime, 3 L. & Crim. Psychol. 59 (1998) (cops are no better at identifying perpetrators than civilian college students).

Stanny, Claudia & Johnson, Thomas, Effects of stress induced by a simulated shooting on recall by police and citizen witnesses, 113 Am. J. of Psychol. 359 (2000) (no difference between cops and civilians on identification accuracy).

Woodhead, Baddeley, & Simmonds, On training people to recognize faces, 22 Ergonomics 333 (1979) (three-day training course on face recognition had no effect on identification accuracy).

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