Reforms urged in Nebraska police lineup procedures
By Bill Kelly 
, Senior Producer/Reporter Nebraska Public Media
Dec. 29, 2015, 6:45 a.m. ·
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Law enforcement agencies across Nebraska have quietly begun a major change in how eyewitness evidence is collected and utilized in criminal cases.
New voluntary guidelines detailing how to organize police lineups were recently sent to every agency in the state by the Nebraska Crime Commission. Previously, there was no uniform statewide standard for eyewitness identification procedures, leaving each agency to develop their own.
Nebraska became the latest state to move towards reforming how eyewitness evidence is obtained and used after a series of academic studies indicated old methods sometimes put the wrong people in prison. Thirteen other states have implemented standardized practices.
TRAINING VIDEOS
These training videos have been recommended to Nebraska investigators working with witnesses on the identification of suspects.
CLICK for Police Lineup Demonstration
(Produced by Norwood, MA Police Dept.)
CLICK for Photo ID Demonstration
(Produced by Wellesley MA Police Dept.)
A model policy developed by the
League of Nebraska Municipalities
was distributed to all local law enforcement agencies this spring. The Crime Commission hopes agencies will use methods outlined in a “best practices toolkit” that came with the letter.
It’s hoped the new standardized procedures for conducting police lineups and photo IDs will replace older, and in some cases discredited, methods used to help witnesses identify possible suspects.
William Muldoon, the director of Nebraska’s Law Enforcement Training Center told NET News the center ended teaching the old methods.
“We’re seeing hard evidence of everything from wrongful confessions to wrong identification that we are not infallible,” Muldoon said. “The best thing we can do is to realize what the shortcomings are and what we can do to mitigate them.”
The guidelines encourage incorporating four practices in police lineups or identifications with photos of suspects:
- Have a “blind” lineup, conducted by an officer unfamiliar with the identify of the real suspect.
- Remind witnesses the actual perpetrator may not be in the lineup.
- Other lineup participants, the "fillers," should have features somewhat similar to the suspect.
- Have the witness write or record a statement about how confident they are in their lineup identification.
(CLICK HERE to read the best practices toolkit provided law enforcement)
A review conducted by The Innocence Project of the first 325 cases in which someone was found innocent through new DNA analysis revealed 73 percent were based on faulty eyewitness testimony.
“Many aspects of the traditional way that identification procedures were done actually work against reliability,” according to Karen Newirth, an attorney and specialist in eyewitness testimony working with The Innocence Project.
Last year The National Academy of Sciences issued a list of procedures proven to increase the reliability of eyewitness identification. The NAS report warned the legal community that “caution must be exercised when utilizing eyewitness procedures and when relying on eyewitness identifications in a judicial context.”
(CLICK HERE to read the full report on eyewitness evidence from the National Academy of Sciences)
Newirth believes changes in police procedures recommended by the NAS can help offset the understandable mindset of anxious crime victims.
“Witnesses naturally feel when they are called down that the police have caught the guy and so they go in thinking the perpetrator is in the lineup,” Newirth said.
Muldoon adds failing to understand how outmoded methods of conducting lineups can put police in an unwelcome position as well.
“These are well-meaning detectives who locked up an innocent person and everyone was convinced of their guilt until the DNA exonerated them,” Muldoon said. He hopes teaching methods backed by solid research will minimize the risk of wrongful convictions and improve the odds of arresting the correct suspect in a crime.
CONFESSIONS OF A 'FILLER'
To get an idea of how police lineups were conducted before departments developed standardized methods, we spoke with Jim Fogarty, the police beat reporter for the Omaha World-Herald in the 1960s and 70s.
Hanging around the detective’s office, sometimes they asked the young reporter to be a “filler” for witnesses to compare against the real suspect.
“So if they were looking for some Caucasian male, five-foot nine to six-foot three with a full beard, I volunteered my services to be one of the thugs,” Fogarty recalls.
In the basement of police headquarters witnesses sized him up next to the real suspect.
“I just remember staring straightforward and trying to look thuggish, you know, kind of get into the role,” he said with a laugh “What would I look like if I had just robbed a grocery store?”
Fogarty recalls being misidentified as a ‘thug’ on one occasion.
Most of the time fillers would be brought in from jail without much thought of who actually had a passing resemblance to the suspect. It was not unheard of that if no one looked like a suspect police would still have a one-person lineup.
“Now that I think about it I was amazed at how casual it was. There were no height charts or special lighting” like is commonly shown in movies and on TV. With the witness in a darkened room participants would line up in a hallway on the other side of the glass. “I couldn’t see faces but I could see there were three people there. It was not high tech.”
In retrospect Fogarty recognizes the process used in 1972 probably "gave rise to reasonable defense objections to the identification” of some suspects. He added "upon reflection I find out it was not standardized. I would suspect today you would have to have a standard procedure."
Fogarty currently is a partner at Legacy Preservation, preparing and publishing family histories.
Nebraska’s voluntary guidelines were developed late last year after the Innocence Project proposed a new law requiring Nebraska police change procedures. Representatives of the Crime Commission and League of Municipalities endorsed changing methods but doubted law enforcement would embrace rules mandated by state law. The Nebraska State Patrol, the Police Chiefs Association, the Sheriffs Association and the Police Officers Association all signed on, agreeing that voluntary guidelines would be more likely to find support.
“It’s all on them now to adopt the policy,” Muldoon said. “I would expect that’s what the practice will become and we’ve already started teaching this in the police academy.”
The overall objective is to avoid having investigators signal a preference for a suspect they have detained.
Muldoon says the process of blind administration “is very easy.”
During a visit to the Grand Island-based training center he demonstrated for a visitor.
The first step is in the instructions reminding the witness the goal is to ID the actual criminal, not just pick a photo that might look similar. Participants are told “the person you saw may, or may not, be in the photographs you are about to view. It’s just as important to clear an innocent person from suspicion, as it is to identify a person as being guilty.”
Next Muldoon laid out ten plain office file folders on the table in front of him. He slid photos of seven fillers, the fake suspects, into folders and put the photo of the detained suspect in an eighth folder.
He closes his eyes and shuffles the folders around before handing them to the witness. “I’m not quite sure where the picture is,” Muldoon said emphasizing an important aspect of the process. Now I am ready to do a blind administration. Identifying one photo, or none, remains the responsibility of the witness without any hints or assistance.
(CLICK HERE to watch a training video on this method)
Nebraska’s guidelines do not specify recording the entire process, as some experts advise but the best practice recommendations encourage asking witnesses to write down reactions to their choice of suspects.
“Law enforcement should ask the witness at the time they make the identification ‘how confident are you in the identification’ and then record verbatim what the witness says,” Newirth said.
She referred to research indicating a witness testifying in court with absolute certainty sometimes is not nearly as confident months earlier at the lineup. They may have been influenced by their own desire for justice, media accounts naming the suspect, or a variety of other factors affecting memory months after the crime occurred.
Newirth says “having that initial statement of their level of confidence is really important” because at trial “confidence is the single most important factor for juries in determining whether they believe a witness.”
Chief Steve Lamken of the Grand Island Police Department, in his role as president of the Nebraska Police Chief’s Association, endorsed the new approach in a letter to the group’s membership.
“The procedures provide additional steps that significantly increase the objectivity of witness identifications,” Lamken wrote. “We need to move forward as a profession in adopting the soundest investigative procedures possible in Nebraska.”
It is up to an individual law enforcement agency to decide whether to utilize the Crime Commission’s recommendations. Lamken told NET News he intends to make the best practices part of his department's standard operating procedures. The Omaha Police Department had its first training session this spring. A spokesperson for the Nebraska State Patrol said NSP may “implement a part of the best practice methods.” Changes are under review by the patrol’s commanders.
In December 2014, the Nebraska Crime Commission, Nebraska State Patrol, the Police Chiefs Association of Nebraska, the Nebraska Sheriffs Association, and the Police Officers Association of Nebraska agreed to support the statewide adoption of the model policy developed by the Nebraska League of Municipalities and the League Association of Risk Management Groups in Nebraska.