Chapter 9

_____________ allows the admission of identification evidence based on "unnecessarily suggestive" identification procedures, unless defendants can prove that the suggestive procedure creates a "very substantial likelihood of misidentification."

The reliability test of eyewitness evidence

True or False:

True

True or False: Administrators who don't give the instruction can infect the pre-lineup procedure even further in culprit-absent lineups by telling witnesses such things as: The police have found the culprit, they know who committed the crime, or they already have plenty of evidence against the culprit

True

True or False: Confidence in our memory rises even as memory fades

True

True or False: Crime labs are state-owned, poorly funded, understaffed, and no formal controls are mandated. Moreover few attorneys for indigent defendants are trained to evaluate forensic techniques

True

True or False: False and fraudulent forensic tests are putting innocent people behind bars

True

True or False: Multiple eyewitnesses frequently describe the same event differently; that no single witness accurately describes the entire event; and that eyewitnesses frequently misidentify, with great confidence, individuals connected with the event

True

True or False: To obtain a criminal conviction, the prosecution must prove every element of the offense, by proof beyond a reasonable doubt. The Constitution entitles a defendant to confront and cross-examine all witnesses against him.

True

True or False: courts rarely, if ever, throw out eyewitness identification evidence

True

True or False: fillers who don't fit the wit-ness's previous description of the culprit "dramatically" increase the chances that the witness will identify the wrong person—an innocent suspect

True

True or False: lineups should consist of a suspect and fillers who resemble one another: They're the same race, ethnicity, and skin color; they're similar in age, height, weight, hair color, and body build; and they're wearing similar clothing.

True

True or False: people have expectations, and our expectations and our highly developed thought processes heavily influence our acquisition of information. In short, our perceptions often trump reality

True

Under the 2 prong test of the bright-line per se rule, _________ and _________ suggestive identifications are admissible unless defendants can prove that they create a "very substantial likelihood of misidentification."

Unnecessarily and impermissibly

In regard to ID procedure, Defendants have to prove by preponderance that procedures were:

Unnecessarily and impermissibly suggestive And they created a very substantial likelihood of misidentification

Were Forensics Lab Technicians Subject to the Sixth Amendment Confrontation Clause?

Yes

three stages of natural human memory—

acquisition, retention, and recall

Psychologists rely on two principal methods to study eyewitness identification, both common in all scientific research:

archival and experimental research

In Manson, SCOTUS equated ______ with the amount of time witnesses spent looking at the culprit's face.

attention

________ also shapes our observations.

attention

But a show-up is better than a _______ one made up of fewer than two fillers

bad lineup

Witnesses in the court room have all made an earlier identification of the defendant—_______ and _______.

before trial and out of court

"Once the prosecution provides any notice required by the statute, the burden shifts to the defense counsel to demand that the prosecution honor its constitutional obligation of calling witnesses to prove each element of the offense _______"

beyond a reasonable doubt

The _______ is stronger in mistaken witnesses than it is in witnesses who are right

boost in confidence

Stovall suggested, and some lower courts adopted, a _________ that focused on the susceptibility of identification procedures to suggestion.

bright-line per se rule

___________ The rule is that identifications that result from "unnecessarily suggestive" identification procedures should be excluded from trial.

bright-line per se rule

In State v. Clopten (2009), the Utah Supreme Court held that defendants have a right to _________

call expert witnesses.

State v. Long (1986), recognized that "research has convincingly demonstrated the weaknesses inherent in eyewitness identification" (490). The court also recognized that "jurors are, for the most part, unaware of these problems" (490). As a result, the court ruled that trial courts had to give jurors "_________," explaining the weaknesses of eyewitness identification evidence.

cautionary instruction

Administrators' __________ remarks infect witnesses in several ways, including affecting other Manson reliability variables.

confidence-boosting

District Attorney's Office for the Third Judicial District and others v. William G. Osborne (2009) - Does a State's Refusal to Grant a Request for DNA Testing Deny the Prisoner's Due Process Right?

defendants' have no constitutional right of access to forensic evidence

_________. Most forensic labs are organized within police departments and are thus dependent on the departments for their budgets. This institutional relationship creates a pro-prosecution bias, as the managers of the forensics units answer to law enforcement agencies.

dependence bias

In Manson v. Brathwaite (1977), Did the Photo Show-Up Create a "Very Substantial Likelihood of Misidentification"? SCOTUS ruled that Trooper Jimmy Glover's single photo show-up identification ________ a "very substantial likelihood" of a false identification.

did not create

In Perry v. New Hampshire (2012), SCOTUS ruled that the due process clause _______ require a hearing into the reliability of eyewitness identification procedures that weren't "arranged" by the police, aka Accidental" Show-Up

doesn't

Stovall v. Denno (1967), introduced _______ into determining the admissibility of evidence derived from a pretrial show-up before indictment

due process rights

When does memory fade most?

during the first couple hours after an event

________: picking an innocent person in a photo array

errors of commission

________: failure to recall some detail or to recognize a perpetrator

errors of omission

In _________, researchers create crimes (live staged or videotaped) that unsuspecting people witness. Then, researchers question them about what they witnessed and show them a lineup.

experimental research

many robbery and rape victims who were close enough to the offender to "get a look at him" were mistaken, because they were under conditions of ________. This can significantly affect perception and memory and should give us cause to question the reliability of such eyewitness testimony"

extreme stress

_______ created by the legislature, these are statutes that permit state prosecutors to use hearsay, state crime laboratory reports, in lieu of live witness testimony, to prove the essential elements of a criminal case. . . . These statutes . . . discourage vigorous defense advocacy, promote carelessness and fraud in crime laboratories, and increase the likelihood of wrongful convictions and sentences

forensic ipse dixit statutes

Melendez-Diaz v. Massachusetts, SCOTUS brought ________ into the Sixth Amendment right of a defendant to "be confronted with the witnesses against him

forensic testing

a show-up is worse than a _______ one consisting of one suspect plus five innocent fillers.

good lineup

Until 1960s, the USSC used a _________ approach, in regards to id procedure

hands-off

Until 1967, the courts, including SCOTUS, adopted a "________" approach to admitting evidence of lineups and show-ups.

hands-off

Many state statutes allow _________ of forensic tests to be entered rather than requiring the scientists to be forced to testify line undergo cross-examination- until Melendez-Diaz v Massachusetts

hearsay results

Gilbert v. California (1967) held that a ________ banned the introduction of an out-of-court lineup identification made in violation of Jesse James Gilbert's right to counsel.

"bright-line" per se exclusionary rule

three variables that Manson includes in its reliability-prong circumstances:

(1) eyewitnesses' opportunity to view the culprit, (2) the amount of attention witnesses devoted to looking at the culprit, and (3) witnesses' confidence (also called certainty) in their identifications.

To improve reliability of the witness identification test, some have recommended several reforms that courts can implement, including the following:

1. A per se rule excluding all evidence based on suggestive procedures 2. Looser standards for admitting expert testimony on human perception and memory and on the shortcomings of eyewitness identification 3. Requiring corroboration of eyewitness identifications in some cases, such as cross-racial identifications 4. Mandating certain police identification procedures recommended by psychologists, such as the sequential lineup

Here are some examples of forensic identification evidence found in the index of the National Research Council's Strengthening Forensic Science in the United States (2009):

1. DNA 2. Controlled substances 3. Blood types 4. Hair analysis 5. Bite marks 6. Voice analysis 7. Handwriting 8. Death 9. Poisons 10. Firearms/tools 11. Digital evidence (gathering, processing, and interpreting electronic documents, lists of phone numbers and call logs, GPS tracking, emails, and photos)

The accuracy of witnesses' first observation of strangers during a crime depends on the interaction among five circumstances:

1. Length of time to observe the stranger 2. Distractions during the observation 3. Focus of the observation 4. Stress on the witness during the observation 5. Race of the witness and the stranger

Court brought the Constitution only a small way into eyewitness identification procedures. Why? Because, to exclude identification evidence on due process grounds, defendants have to prove by a preponderance of the evidence that the totality of the circumstances shows that:

1. The identification procedure was unnecessarily suggestive. 2. The unnecessarily suggestive procedure created a very substantial likelihood of misidentification.

challenge the accuracy of eyewitness identification evidence because of suggestive eyewitness identification procedures. What are some common arguments:

1. The police used a show-up when they could've used a lineup. 2. The police used a lineup in which the suspect stood out. 3. The police didn't tell the witness that the culprit might not be in the lineup. 4. The police showed the witness a photo of the suspect before they conducted the lineup. 5. The police told a witness who was potentially not confident that she picked the "right" person in the lineup. 6. The police conducted a second lineup in which the only person who appeared in both lineups was the suspect

Here are three common situations in which courts are likely to admit show-up identifications:

1. Witnesses accidentally run into suspects, such as in courthouse corridors. 2. Witnesses identify suspects during emergencies, such as when witnesses are hospitalized 3. Witnesses identify suspects while they're loose and being pursued by police, such as when police cruise crime scenes with witnesses

Less than _______ of eyewitnesses who picked the wrong person said that, at the moment when they made the identification, they were "positive or nearly positive" about their selection.

15%

A substantial body of empirical research demonstrates that courts' trust in jurors' ability to discern witness lineup misidentifications is misplaced. Jurors might believe ________ mistaken identifications

3 out of 4

Archival research has demonstrated that real eyewitnesses who select someone from a lineup identify an innocent filler on average _____ of the time

30%

Lineups Recommended:

5 or 6 people Same race,. Gender, age, height, build, hair color, and clothing Blind administrator Tell witness that defendant "might not be in the line up" Use sequential, not simultaneous, presentation

But after a group of mistaken witnesses were told by administrators, "Good, you identified the actual suspect," ________ said they were positive or nearly positive at the moment of identification

50%

eyewitness misidentifications account for _______ of the wrongful convictions of those exonerated by DNA testing

75%

3 common situations when the court is most likely to admit the evidence from a show up:

Accidental encounters between suspects and witnesses Emergencies Suspects on the loose

__________: These are cases where the witness happens to see a defendant in custody, say outside the courtroom or in the police station.

Accidental show-ups

_______ of memory. The perception of an event, when information is first entered into memory.

Acquisition

_________ consists of analyzing real procedures used in actual criminal cases. Only a small portion of the research is archival

Archival research

Why dont most courts don't throw out lineup identifications?

Courts trust jurors' common sense and daily experience to detect wrong identifications

Forensic certificates (granted under ipse dixit statutes) can prove, by a hearsay report, both the chain of command and the "truth" of the forensic tester's conclusions as to the results in a wide range of tests conducted in crime labs, including which?

DNA tests Microscopic hair analyses Fingerprint identifications, coroners' reports Ballistics tests

________, the application of scientific methods and techniques to investigate crimes, comprises many disciplines.

Forensic science

_________ is both subjective and malleable

Human memory

Police ________ increase the power of suggestion

ID procedures

____________. Forensic scientists are privy to information that may be crucial to a criminal proceeding, but extraneous to the questions put to the forensic scientist. Sharing information between police investigators and forensic scientists creates the strong possibility of unconscious bias. Further, dishonest scientists may then more freely act on their self-conscious biases. The inappropriate sharing of bias-inducing information might be called "information pollution."

Information sharing

____________ Process: 1. The prosecutor or law enforcement officer requests a state lab (or a lab hired by the state) to conduct one or more tests. 2. The lab prepares a report of its conclusions. 3. The report follows the statute's requirements. 4. at trial, the state introduces the hearsay report. 5. The report proves the chain of command. 6. The report proves truth of the lab's conclusions. 7. no state witness testifies about the testing methodology, the testing equipment, or the error rates associated with the testing. 8. no state witness testifies about the tester's experience, education, or work performance. 9. The hearsay forensic report creates a presumption that the state has proved beyond a reasonable doubt, the truth of the report's conclusions

Ipse Dixit statute forensic Proof

Until 1967, the hands-off approach to admitting evidence of lineups and shows was because...

It was up to juries to assess the reliability of this evidence, not courts.

___________. From the absence of forensic counsel for the indigent, it follows that there is little competition among forensic counselors for customers. Even if forensic counsel is available, it may not be vigorous or effective in a non-competitive environment.

Lack of competition among forensic counselors

_________. Indigent defendants rarely receive aid and counsel from forensic scientists. The prosecution has forensic counsel and, indeed, batteries of forensic specialists, whereas the defense has none and, often, an attorney unable to adequately understand and challenge forensic testimony.

Lack of forensic counsel

The accuracy of witness identification depends on:

Length of time to observe Distractions during observations Focus of the observations Stress during the observation

_________ are Least often used and most reliable

Lineups

Does a State's Refusal to Grant a Request for DNA Testing Deny the Prisoner's Due Process Right?

No

________. The same scientist who, say, performs a test to establish blood type also then determines whether his test results exclude the police suspect. Forensic error may result from a false interpretation of a test that was properly conducted.

No division of labor between forensic analysis and interpretation

U.S. v. Wong: In restaurant shooting of a Green Dragon gang member: Witness saw shooter for a "few seconds" as she ducked under a table. Viewed 3 photo lineups, couldn't be sure; during third: "It looked like" the shooter. Officers told her repeatedly they believed they had the right man. Court holding:

Not impermissibly suggestive; if it was, it was still reliable and admissible

SCOTUS has identified five factors in the "totality of circumstances" that should weigh heavily in determining whether the "unnecessarily and impermissibly suggestive" procedure created a "very substantial likelihood of misidentification" in lineups and show-ups:

Opportunity to view the defendant at the time of the crime Degree of attention at the time of the crime Accuracy of description of defendants prior to the identification Level of certainty at identification Length of time between ID and crime

__________. In the United States, there are no required programs of accreditation for forensic labs and the principal accrediting agency, the American Society of Crime Lab Directors, is a professional organization, not an independent organization. Quality control measures tend to be poor, which may easily produce shoddy work

Poor quality control

_______. Forensic laboratories are almost universally publicly owned. In the United States, they are often organized under police agencies, such as the State Police or FBI. Competitive private labs may have stronger incentives to produce reliable work than do monopoly government labs.

Public ownership

________ impacts the accuracy of identifications

Race

In SCOTUS's words, "_______ is the linchpin."

Reliability

State v. Thompson, Police officer drove witness to show-up at the place where suspect was apprehended. Officer told witness, "We believe we have the person. We need you to identify him." Asked witness to identify the person, who was "probably the shooter." Shined spotlights and headlights on squad car, then removed suspect from back of the car for the show-up. Court Holding:

Reliable and admissible

Howard v. Bouchard, Witness who saw defendant at defense table with his lawyer about one hour before lineup, which could have unnecessarily suggested he was the culprit. Court holding:

Reliable, only "minimally suggestive"

________ of memory. The process of storing information during the period of time between an event and the "eventual recollection of a particular piece of information."

Retention

_______ of memory. The time when a person recalls the stored information about an event for the purpose of identifying a person in an event.

Retrieval

________—identifications of a single person—

Show-ups

statements contained in forensic lab reports created specifically as evidence to prove guilt in criminal trials are testimony that the _________ guarantees defendants have the right to cross-examine

Sixth Amendment

________ (1968) established due process for ID procedures

Stovall v Denno

Flawed Forensic Evidence ________ are a potential source of problems

Testing procedures

several simple examples of verbal and nonverbal cues to the administrator's knowledge and expectations: A witness calls out the number of a filler photo. The administrator...

The administrator, knowing it's a filler, urges the witness to "Make sure you look at all the photos before you finally make up your mind."

Most misidentifications result from _________ and _________

memory imperfections and suggestions

Relying on eyewitness identifications is risky even in ideal circumstances because _________ result in mistaken identification

memory problems

Eyewitness evidence leaves a "_______" in the witness's mind, which we try to extract without damaging it

memory trace

___________ of strangers "is the single greatest cause of the conviction of the innocent"

mistaken identification

________. In most jurisdictions today, including those in the United States, each forensic lab has a monopoly on the evidence it analyzes. No other lab is likely to examine the same evidence, which allows practitioners to perform sloppy, biased, even fraudulent work, as they cannot be proven wrong.

monopoly

eight features of current forensic science that reduce the quality of forensic practitioners' work:

monopoly dependence bias Poor quality control Lack of competition among forensic counselors Public ownership Lack of forensic counsel No division of labor between forensic analysis and interpretation Information sharing

In District Attorney's Office for the Third Judicial District and others v. Osborne (2009), defendants have ________ of access to forensic evidence

no constitutional right

In cases where law enforcement had so little to do with the identification that courts ruled that there was....

no due process violation because there was no "state action."

Retrieval errors can be either errors of...

omission or commission

The choice of suspects and foils can infect the reliability of lineups by suggesting who the eyewitness should select. To reduce the chance of infection by suggestion, psychologists recommend that a lineup always include ___________

only one suspect, the rest must be fillers

________ is the first of the five circumstances in the reliability prong of the Manson test. A witness's ability to view the culprit at the time of the crime is obviously important. Distance is part of this

opportunity to view

The witness has to retrieve from long-term memory the specific information she needs to answer the questions. This retrieval comes from information acquired from both the .....

original experience and information added during the retention period

Most places in the United States use ______ lineups.

photo

In _________, witnesses look for the suspect in a group of photos, or a photo array.

photo lineups

___________ The least reliable of the 3, nut the most frequently used Their 2 dimensional nature is the cause of the problem

photo lineups

________ of criminals are in the eye of the beholder, and our subjective perceptions influence heavily what happens during events, including crimes.

physical characteristics

research demonstrates that the better witnesses can describe peripheral details the ________ their description of the culprit's face

poorer

Why are show-ups less reliable than lineups?

presenting only one person to identify is more suggestive than providing a group of people to choose from

In eyewitness _______, witnesses are given hints, such as a time frame, and then asked to report what they observed.

recall

Retrieval arises from two phenomena: ________ and ________.

recall and recognition

In eyewitness ______, witnesses are shown persons or objects and then asked to indicate whether they were involved in the crime.

recognition

Bynum v. State,One week after a robber attacked the victim, she selected, from a photo lineup, the suspect and one other person. Victim stated that Bynum "looked the most like the attacker." Four days later, in second photo lineup containing Bynum but not the second person she selected in the first lineup, victim selected Bynum "positively and unequivocally." Second individual witnessed the crime, wasn't able to pick out the attacker from the lineup, but later identified Bynum as the robber. Third witness identified Bynum in the lineup, later testified he was "100% certain" of his identification. Court holding:

reliabile

For ID procedure _________ is key

reliability

The two-prong test of the bright-line per se rule demonstrates that, in Manson's majority opinion, "___________" of due process in eyewitness identification.

reliability is the linchpin

Defense counsel lose challenges to the accuracy of eyewitness identification in almost every case because of the _______ of eyewitness evidence established in Manson v. Brathwaite

reliability test

Clarke v. Caspari, Two liquor store clerks viewed two handcuffed Black suspects "surrounded by White officers, one of whom was holding a shotgun." Court holding:

reliable

State v. Johnson, Murder victim's wife failed to identify juvenile suspect from photo lineup a month after the murder. Seven months later, she identified juvenile dressed in Department of Youth Services clothing, maybe handcuffed, the only young Black sitting at the defense table, at a court hearing in juvenile court to transfer him for trial as an adult. Court holding:

reliable

Witnesses store details in one "memory storage bin," which contains information about the crime they acquired by faulty perception at the time of the crime and information that they added later during the _________stage

retention

Suggestion is particularly powerful and most threatening to accuracy during the _______ and ________ phases.

retention and retrieval

Suggestion is the most powerful during the _______ and ________

retention and retrieval

Psychologists are highly skeptical of _________, because they're highly malleable in response to even slight changes in context, such as: - The social desirability of the responses - The need to appear consistent - Reinterpretations of the past based on new events

retrospective self-reports

several simple examples of verbal and nonverbal cues to the administrator's knowledge and expectations: The witness names a filler. The administrator...

says nothing but frowns and moves his head left to right.

several simple examples of verbal and nonverbal cues to the administrator's knowledge and expectations: The witness names the suspect. The administrator...

says, "Good, tell me what you remember about that guy."

We all pay only _________ to what's going on around us, and this leaves wide gaps in the information we acquire during events.

selective attention

________ Witnesses try to match the suspect with one person, either by live appearance or a "mug shot" photo

show ups

__________ They are less reliable than lineups but more frequently used

show ups

all but _______ states have ipse dixit statutes

six

several simple examples of verbal and nonverbal cues to the administrator's knowledge and expectations: The witness names a suspect. The administrator...

smiles and nods her head up and down

Identifying strangers of another race ________ the risk of mistaken identification

substantially increases

Power of ______ can lead to misidentification

suggestion

witnesses frequently add to their stories of crimes after the event. What they add depends on how she describes what happened. The power of _________ shapes what witnesses later take out of their memory bin and recall during the identification process

suggestions

Mistaken identifications from culprit-absent lineups are significantly higher when the witness is not given the pre-lineup instruction than when the witness is given...

the pre-lineup instruction

Courts rely heavily on eyewitness retrospective self-reports (witnesses' in-court recollections) when it comes to three of the five Manson reliability factors what are they?

their view, attention, and certainty

Witnesses quickly forget that they were uncertain at the moment of identification; instead, they believe....

they were certain all along

Even in places that still use live lineups...

they're frequently preceded by photo lineups

Eyewitness evidence is a form of "_________."

trace evidence

True or False: increased contact with persons of another race doesn't improve the ability to perceive their physical characteristics

true

In U.S. v. Wade (1967), Billie Joe Wade participated in a lineup conducted after he was indicted, without his lawyer present. SCOTUS held that the lineup after indictment without his lawyer there....

violated Wade's Sixth Amendment right to counsel

Witnesses also get distracted from focusing on the physical description to other "details" like the gun the robber waved or the knife a rapist held to his victim's face. Understandable as this "_________" is, the weapon is obviously not as important as the description of the robber or rapist.

weapons focus

Eyewitness identification psychologists have concluded in regard to attention that it's not the amount of time spent but what witnesses do...

with the time

Adopted_________ based on the psychology research: 1. Utilize nonsuspect fillers chosen to minimize any suggestiveness that might point toward the suspect. 2. Utilize a "double-blind" procedure, in which the administrator (called a blind administrator) doesn't know who the suspect is and, therefore, isn't in a position to influence the witness's selection unintentionally. 3. Instruct eyewitnesses that the real perpetrator might or might not be present and that the administrator doesn't know which person is the suspect. 4. Present the suspect and the fillers sequentially (one at a time, or sequential presentation) rather than simultaneously (all at once, or simultaneous pre-sentation). In a sequential presentation, the witness is asked to answer "yes" or "no" as each person in the lineup is presented. This discourages relative judgment and encourages absolute judgments of each person presented, because eyewitnesses are unable to see the subjects all at once or to know when they've seen the last subject. 5. Assess eyewitness confidence immediately after identification. 6. Avoid multiple identification procedures in which the same witness views the same suspect more than once

identification procedures

most mistaken identifications happen because of a combination of the natural imperfections of memory and the normal susceptibility to _________ and ________ suggestion

innocent and subtle

All but 6 states have _________ that authorize the state to prove its forensic allegations by relying on forensic certificates instead of live testimony.

ipse dixit statutes

Researchers have shown that the administrator's ________ or _________ influence the witness

knowledge or expectations

These out-of-court pretrial identifications consist of two procedures:

lineups and show ups

Relying on eyewitness identification of strangers in criminal cases is a risky business. The risks of mistaken identification are high, even in ideal settings, and the most common identification procedures—_______ and _________-—don't take place in ideal settings

live and photo lineups and show-ups

In ______, witnesses try to pick the suspect out of a group of individuals who are present.

live lineups

Reliability in lineups depends on

makeup and procedures

Memories don't just fade. Many things can happen to a witness during this critical retention period. Sometimes, new items are added to our memory bin. Witnesses talk about the event, overhear conversations about it, or read, hear, or watch news stories about it, all of which "bring about powerful and unexpected changes in the witness's memory. Thus eyewitness testimony is...

malleable