Changing photo lineups could improve identification, advocates say

By CHEYNA ROTH
Capital News Service
LANSING — Michigan has cleared more than a dozen people who were wrongly identified as suspects by eyewitnesses since 1989. Lawmakers and advocates are working to reduce the chances of it happening again.
Sen. Steve Bieda, a Warren Democrat, said he hopes to introduce newly re-drafted legislation this spring that studies and task forces suggest will reduce the number of wrongful identifications by changing the suspect photo lineup procedure.
The current primary method for photo identification in Michigan involves an officer aware of who the potential suspect is laying out six side-by-side photographs.

This method is flawed, says Nancy Diehl, former co-chair of the Special Committee on Eyewitness Identification Task Force, and it contributes to the No. 1 reason for false convictions.
“If I’m the victim and police call me in to come and look at a photo lineup, I know the police aren’t calling me in for no good reason…they think they got the person that did it to me,” Diehl explained.
“So I come in and I got six photos I’m looking at all at the same time — what am I doing? I’m comparing. I’m looking at all of them and saying, ‘Who looks the most like the person who I described?”
The method inadvertently encourages witnesses to eliminate “wrong” suspects instead of independently judging whether any individual photo matches their memory. It’s a matter of who looks the most like the person, rather than who is the person.
The Eyewitness Identification Task Force was a committee, lasting approximately two years, created by the State Bar of Michigan. The task force, made up of attorneys, law enforcement and judges, made recommendations concerning court rules, legislation and funding to improve eyewitness identification procedures.
The task force recommended that, instead of having an officer who knew the suspect’s identity present a group of six pictures on one page, the eyewitness should be shown photos one at a time by an officer who doesn’t know which photo is the suspect’s. This method is called a “double-blind sequential” process.
A double blind procedure prevents any inadvertent cues by the administrator of the lineup that could affect the outcome, the task force said. The procedure should also be sequential — one at a time — to avoid the multiple-choice aspect of the “six-pack” approach, Diehl said.
The task force’s report, distributed in 2012, was well received by prosecutor’s offices and law enforcement.
“Once people on this committee heard this information … everybody was like, ‘Oh my gosh, this is a no-brainer. We gotta change how we do this,’” Diehl said.
But despite the warm welcome, most law enforcement agencies have not changed their procedures. Each police department received a model policy from the task force, but was not required to follow it.
However, some departments are adopting the procedure. David Harvey, executive director for the Michigan Commission on Law Enforcement Procedures and a task force member, has given multiple trainings and presentations on the policy.
Harvey believes agencies will adopt the procedure.
“The last thing law enforcement wants to do is put the wrong person in jail,” Harvey said. “So anything that helps us do our job better, I believe all law enforcement certainly is very open to that.”
According to the Michigan Commission on Law Enforcement Procedures’ survey, more than 100 agencies in Michigan have already adopted the double blind sequential procedure. But Michigan has 571 police agencies, leaving many agencies still using the old methods.
Bieda is looking to change that. He and a team that includes attorneys, law enforcement officials and representatives from The Innocence Project, a non-profit organization dedicated to exonerating wrongfully accused through DNA testing, are re-drafting a bill that Bieda introduced back in 2007 as a member of the state House of Representatives.
The original bill would have required double blind sequential photo lineups whenever it was practical – the same recommendation from the eyewitness identification task force five years later.
The bill died for lack of support, possibly because it was such a new issue at the time, Bieda said. Other priorities and time out of office kept Bieda from reintroducing the bill.
“It’s just one of those issues that’s probably going to take a little while to develop,” Bieda said. “There’s a lot of moving parts to it, and there are folks that may have some different approaches on it and I’ve been working with them to try to figure out what’s the best place to go with this.”
Concerns come from some prosecutors who think the sequential method is not the way to go, Harvey said. Accommodating smaller departments with fewer training resources is another area of concern, said Bieda.
“There’s training, there’s timing and putting that in,” Bieda said. “There’s always the sense is like, we’ve always done it this way – why do we need to change it?”
But changing the procedures is important, said Diehl, a prosecuting attorney for 28 years and Wayne County’s trial division chief for seven years before retiring. She said she came across enough bad identification to be concerned.
“As a citizen and as a former prosecutor,” she said,”you need to do everything you can to at least make it the best likelihood of a good identification.”