New state law governs how police are to conduct lineups
By Nick Hiltunen
Published in News on March 24, 2008 1:48 PM
Police conducting criminal lineups have new rules to follow since the first of this month.
It's an attempt to make eyewitness identification more scientific, proponents say.
But Wayne County Sheriff Carey Winders said the new procedures also mean organizational headaches. Wayne County District Attorney Branny Vickory also said the law will take some getting used to for police, and may make for fresh challenges in the appellate courts.
Meanwhile, Goldsboro and Wayne County's most famous victim of faulty eyewitness identification, Dwayne Dail, welcomes the new law.
And Dail's attorney, director of the N.C. Center on Actual Innocence at the Duke University School of Law in Durham, said she and others contributed to the authoring of the bill by legislators.
Christine Mumma helped free Dail in August after DNA evidence showed he could not have committed the crime for which he served 18 years in state prison.
'Independent
administrators'
On the front lines of the justice system, the law brings changes.
Before March 1, police detectives working a case often were the ones who presented lineups to eyewitnesses.
Not so anymore -- the new law says an "independent administrator" must run the lineup.
What does that mean to the sheriff and other law enforcement?
"I've got to find somebody in the office that has absolutely no knowledge of the case," Winders said.
The law also requires the lineup to have fillers -- people who are not suspects in the crime that look like the suspect.
In prior Wayne County photo lineups, six photos were usually presented on one sheet of paper, in two rows of three, Winders said.
That's another thing changed by the law, the sheriff said.
"You don't get to say, can we see them all at one time," the sheriff said. "He's got to present them one photo at a time."
The sheriff thinks that will lead to fewer, lower-quality identifications.
"How many photo lineups are going to be worth a damn," the sheriff said. "Very rarely, unless this guy's got a big tattoo on his forehead."
But others think the changes make sense.
Dail's attorney Ms. Mumma is one.
She said the N.C. Justice Academy -- which trains police at a Salemburg campus -- reviewed and approved the changes in 2004.
"So this process has gone on for a while," Ms. Mumma said.
And many police departments have actually been following the new procedures since the Justice Academy's approval of them, she said.
"What we were finding is that the departments that were following the procedures were saying 'It would really help if we were all following them,'" Ms. Mumma said. "Of course the Duke lacrosse case gave things a little nudge."
'Double-blind'
People with any science background are probably familiar with the term "double-blind."
Put simply, it means that any information that could bias the witness is kept from him or her.
Ms. Mumma said that witnesses are often victims, and even when they are not, they want to help police officers get the "bad guy."
"Witnesses want to help the investigation. They want to please the officer," Ms. Mumma said. "They want to pick the right person, and they assume that they wouldn't be doing a lineup unless the police had a good suspect."
The new law lays out a couple of procedures that address those helpful desires of witnesses.
Before photo lineups are presented in order, witnesses are told:
*That the lineup may not contain the suspect,
*That the independent lineup administrator does not know the suspect's identity,
*That witnesses should not feel like they must make an identification, and
*That investigation continues whether an identification is made or not
Ms. Mumma said some complaints from police about the new law are more common than others.
"The primary complaint is that they don't have the resources to handle having double-blind investigators," Ms. Mumma said.
Automating it
Computers might offer a solution to having too few people, Ms. Mumma said.
"We're working with a software company to develop software so the witness is basically self-conducting the lineup on the computer.
"It provides an excellent record to be taken into court," Ms. Mumma said. "The officer who is investigating the case can actually remain in the room as long as they're not looking at the screen.
Ease of use is added to increased accuracy with the program, the lawyer said.
"The software is very user-friendly, and has audio and visual capability," Ms. Mumma said.
But if police agencies don't have the $10,000 to buy the software, lower-tech solutions are offered, Ms. Mumma said.
The six photos in a lineup can each be put in a manila folder, and passed one by one to the eyewitness, she explained.
"As long as the officer doesn't know which one is the suspect," Ms. Mumma said.
The lawyer said using a computer will probably mean fewer motions in court to suppress identification evidence.
"It's like the CSI of ID," Ms. Mumma said, referring to the hit CBS procedural crime drama that many say has changed the landscape of American justice.
"They really like it in the courtroom," she added.
Prosecutor's view
District Attorney Branny Vickory said there is often resistance to any change, but described Winders as "receptive" to most of the new policy.
He compared the new lineup procedures to a second part of the innocence initiative, which asks for at least audio, if not video recording of murder interrogations.
"I think most law enforcement initially resisted it because it was a change. That's just a natural human instinct.
"Once everybody gets used to doing it, it's not going to be that big a deal," the district attorney said.
What might be a big deal, however, is what trial attorneys choose to do with the law in the appellate courts, he explained.
"Somebody down the road is going to say, this (sequential photo presentation) is not a valid method," Vickory said.
Almost any change in police methods opens up new avenues for defendants making an appeal, the prosecutor said.
"Everything gets tested in the appellate courts," Vickory said.
A question
of integrity?
Mumma said the changes are not a statement about the honesty of investigators.
For Wayne County's sheriff, however, the new law smacks of distrust of police officers.
"What irritates me is they have made it seem like, 'We trust you enough to go testify in court, we trust you enough to arrest people, but we ain't going to trust him to do that photo lineup," Winders said.
But Dail, who was cleared by DNA evidence of a 1987 rape of a 12-year-old girl, said lineup changes should be just the first of many.
"We're taking one step at a time. Other changes will be made as well, because a lot more need to be made.
"I'm very honored to know that my case may have helped put a face, put a story to the changes," Dail said.