When ID'ing suspect, seeing isn't believing

April 7, 2004

I saw him do it. I picked him out of a lineup. And I would have sent him to jail.

The problem: He was innocent.

Luckily, this wasn't for real. Rather, I was participating in a test put together by Gary Wells, professor of psychology at Iowa State University and one of the nation's foremost experts in eyewitness identification.

Watching a video, I observed a man on a roof with what appeared to be a bomb. Moments later, he ran right past the camera. Knowing my next task would be to identify him, I paid close attention. His face was clearly visible several times and from several angles.

Next came the lineup. One by one, the camera gave me a close-up view of six men. It then zoomed back to show them all standing together. Confident, I chose No. 3.

I was wrong. It wasn't the fault of the video or even the commonly known problem of cross-racial identification. Rather, I got tripped up because, assuming one of those in the lineup must be the perpetrator (in fact, none was), I went through a subconscious process of sorting, narrowing down the six men until I arrived at one who looked most like (but, as it turned out, not exactly like) the bomber I had viewed moments earlier.

In my case, no harm was done. In others, real men and women have gone to jail.

In March, Anthony Powell, convicted in 1991 of kidnapping and rape, was exonerated and set free. His was just the latest in a string of Suffolk County cases in which eyewitnesses had firmly identified the wrong man.

All of which should raise the question: Can we trust eyewitness testimony?

Perhaps not. And it's a problem that greatly troubles Suffolk County District Attorney Dan Conley.

Powell is one of the lucky ones for whom new evidence or new science (such as DNA testing) has become available. How many others, however, are in jail, genuinely innocent and unable to prove it? In truth, we don't know, although Conley says he believes it is few, "well less than 1 percent."

Which, he quickly notes, is still too many.

In the wake of the Powell case, Conley assembled a six-person task force to evaluate eyewitness testimony. Gary Wells, the Iowa professor who so easily fooled me, is one of its members. So too are representatives from Conley's office and the Boston Police Department, as well as three local defense attorneys. It's a balanced group, and its work will almost certainly change the way cases are prosecuted in Boston. It may also change the way district attorneys nationwide conduct their operations.

In some situations, such as when an eyewitness knows a person or has seen him or her before, prosecutors are considerably more confident the identification is accurate. But what of cases where the suspect is a stranger?

The fact is, people are generally terrible at identifying other people. Most of us don't pay close attention to the details of someone's face. Memory plays tricks and fades over time. Moreover, how we ask witnesses to make identifications can lead to errors. That's what happened in my case. In other circumstances, subtle cues from those conducting the lineup - a quick intake of breath, for example - can cause unintentional bias.

There is a host of techniques for reducing those errors. Rather than using lineups or books of photos, for example, eyewitnesses are usually more accurate when looking at pictures (or real people) in sequence (like flipping through a deck of cards). Moreover, those working with the witness should be unaware of who the suspects are, so that they too don't influence the results. Conley's task force likely will recommend strategies such as these.

Even so, mistakes can occur. Identifications can help, of course, because they lead to suspects and police can often find corroborating evidence that supports their case: blood, semen samples, items taken from a victim and the like.

But what of cases where there is no corroborating evidence, where the prosecution's case is built entirely on eyewitness identification?

As far as the task force is concerned, Conley says, "Everything is on the table." The risk of a miscarriage being so high, it may well be that such cases are just not prosecuted.

Mistaken convictions clearly pain Conley. Indeed, they have had the effect of altering his view of the death penalty, turning him into an opponent. Jail, unlike death, allows for the possibility of reversing an error.

Notwithstanding the moral cost of imprisoning the innocent, some may object to the reforms the task force recommends, fearing that too tight rules might allow lawbreakers to escape justice. That might well happen. Yet they should also consider this: Every time we wrongly send a person to jail, it means the guilty still walk free.

Talk back to Tom Keane at tomkeane@tomkeane.com.