Ten cases of eyewitness identification: Logical and procedural problems

Journal of Criminal Jusrice Vol. 18. pp. 291-319 (1990) All rights reserved. Printed in U.S.A.

0047-2352/90 53.00 + .OO Copyright G 1990 Pergamon Press plc

TEN CASES OF EYEWITNESS IDENTIFICATION: LOGICAL AND PROCEDURAL PROBLEMS

WILLEM A. WAGENAAR

Unit of Experimental and Theoretical Psychology

Leiden University Leiden, the Netherlands

ELIZABETH F. LOFTUS

Department of Psychology University of Washington

Seattle, Washington 98195

ABSTRACT

Procedural aspects of identification tests constitute a useful area for expert testimony by experi-

mental psychologists because e.xperimental psychologists have the relevant e.xpertise and because police investigators make numerous potentially fatal mistakes. This article outlines the dual purpose of identity testing: one test is supposed to prove simultaneously the guilt of a suspect and the reliability of the witnesses. This dual objective can be achieved only if the underlying logic is not disturbed by

procedural flaws. Twelve of these flaws are discussed. Procedural Jaws can be avoided through the adoption of a number of rules, as proposed by various bodies and authors. However, in practice such proposals are rarely followed, probably because the seriousness of procedural mistakes is not realized. Ten cases of disputed identity in which the authors acted as expert witnesses are presented. The cases are shown to have been severely undermined by procedural flaws that disrupted the evidentiary strength of the identifications, errors that could have been avoided, had stricter rules been adopted. It is argued that procedural rigidity will increase the discriminatory power of identity tests so that more innocent suspects are acquitted and more guilty suspects convicted. Until this objective has been achieved, it will remain useful for experimental psychologists to test& about identification procedures.

Experimental psychologists have been ap- tors such as perceptual conditions, exposure

pearing in court more and more frequently as time, amount of stress experienced by the

expert witnesses, to tell the court and the jur- witness, and length of retention period, which

ies about psychological aspects of eyewitness may have influenced the reliability of the tes-

identification. Often they concentrate on what timony but which were never under the con-

Wells (1978) called estimator variables: fac- trol of the police investigators. Psychologists

291

292 WILLE?+l A. WAGENAAR

are asked to estimate how these variables could have influenced the reliability of an identification. The acceptability of such expert testimony was attacked by McCloskey and Egeth (1983) and defended by Loftus ( 1983). The major arguments against expert testimony by experimental psychologists are:

Experimental psychologists do not always possess reliable infomlation about the issues discussed in their testimony.

Experimental psychologists cannot provide assessments of the reliability of specific witnesses.

Psychological knowledge that is sufficiently established within the scientific com- munity is usually trivial and already known to judges and juries.

In this article it is argued that even when these arguments hold for testimony on eyenvittwss reliability, experimental psychologists can still testify about a related area of expertise, namely procedural reliability. identification parades are tests of memory, which are used to prove in the courtroom that eyewitnesses are not confusing the perpetrator of a crime with an innocent person. The proof can only be ac-

cepted when the test procedures were such that the outcome is reliable

Ascertaining the validity of test procedures requires expertise. Memory tests have been conducted by psychologists for over 100 years; Ebbinghaus’s Ueber das Gedaechtnis, with its strong emphasis on method, appeared in 188.5. Since then experimental psychologists have accumulated a wealth of procedural expertise, and they are thus eminently qualified to testify about the procedural aspects of memory tests. The distinction between eyewitness reliability and procedural reliability is similar to Wells’s distinction between estimator and system variables. System variables are factors related to the test procedures, such as number of foils in a lineup, choice of foils, instructions to the witness, and use of photographs instead of live persons. It is argued here that expert testimony about these aspects of test procedures does not suffer from the weaknesses mentioned by McCloskey and Egeth. On the contrary:

Experimental psychologists have reliable and thoroughly tested information about the consequences of procedural errors.

Experimental psychologists can evaluate the quality of specific tests. administered to specific witnesses.

Police investigators, prosecutors. defense attorneys, judges, and juries often have little understanding of procedural problems and the extent to which these problems may invalidate identifications by eyewitnesses.

This article reviews the logical basis of identity tests and then discusses twelve logical and procedural problems often encountered in the practice of identity testing. Then it describes ten criminal cases in which identification by eyewitnesses played a crucial role and in which the authors were asked to present expert testimony. Finally, the article presents some general guidelines that can be applied by police investigators when they conduct identification tests and by courts when they decide to accept or reject the results of identification tests as legal evidence.

THE LOGICAL BASIS OF IDENTITY TESTS

The purpose of an identity test is twofold. Its main objective is to establish that a suspect is the same person as the one seen by a witness at the scene of the crime. The second objective is to verify that the memory of the witness is reliable. Both objectives are pur- sued by means of one single test, and the at- tainment of this objective should be judged on the basis of one response per witness. Usually this dual objective is attempted by offering the witness a choice among a number of people, presented live or on photographic stills. One of these people is the suspect; the others are innocent foils, that is, people who are definitely not the wanted criminal. The expectation is that witnesses will not identify anyone when the suspect is innocent or that if they are too eager to respond, they will guess and be as likely to point to one of the foils as to the suspect. The same applies to the situation in which witnesses have no reliable memory: they will not identify

Ten Cases of Eyewitness Identification 293

anyone or they will guess and be as likely to identify a foil. Witnesses will make a certain identification only when two conditions are satisfied: they have a reliable memory of the person seen at the scene of the crime and the suspect is that person. The expected responses of a witness are shown in figure 1. The logic underlying identity tests is that a positive identification of the suspect by many witnesses cannot occur by chance. It can occur only when the witnesses have seen the suspect before. If the witnesses were not pre-

viously acquainted with the suspect, the encounter must have occurred at the scene of the crime and the suspect must, therefore, be the person they encountered there. Thus, a positive identification of the suspect by many witnesses proves simultaneously that the suspect has been correctly identified and that the witnesses are reliable.

A problem arises if one or more of the assumptions underlying the logic of identity testing is not met. One assumption is that the witnesses have no acquaintance with the suspect except in connection with the crime. An- other assumption is that witnesses who do not recognize the suspect are not given any cues that enable them to guess who the suspect is. A third assumption is that all identification attempts are reported: if three out of twenty witnesses identify the suspect, this minority report can be presented as convincing evidence, simply by omitting mention of the negative identifications. A fourth assumption is that no innocent suspect will be presented in the lineup simply because he or she hap- pens to resemble the individual who was at the crime scene very closely. The next sec-

tions outline problems with these and other assumptions and demonstrate difficulties in ensuring the validity of identity tests. A court should be skeptical of eyewitness identifications unless the underlying assumptions are verified. The rules presented below are meant as guidelines for this checking procedure.

If a court finds that one or more assumptions was not met, the identification is dubious as legal evidence. When a substantial portion of the proof consists of identification evidence, this could mean that a case has to be dropped even when it is likely that the suspect committed the crime. This article includes examples of such cases. In most countries it is strongly believed that a suspect must be held innocent until proved guilty, which means that there should always be a prefer- ence for dropping charges instead of accept- ing unreliable identifications. If the prose- cuting body does not want this to happen, it should ensure that the logic of identity tests is not obstructed. One of the most frequently encountered difficulties is incorrect procedures used by police investigators. The only safeguard against this is a rigid procedural routine, embodied in state law. Such laws do not exist in the authors’ home countries (the Netherlands and the United States), nor in any other country that has come to their attention. A major attempt to investigate the logical and procedural aspects of identity tests thoroughly is presented in the report by the Brit- ish investigation committee presided over by the Right Honourable Lord Devlin, issued in 1976. But the proposals of this report, ad- mirable as they are, have never been adopted as law, nor even as practical guidelines for

Figure 1. Possible Responses in a Multiperson Identity Test.

Suspect is Not the Perpetrator

Suspect is the Perpetrator

Witness has a perfect memory

Witness has an imperfect memory

Refusal to identify anyone

Refusal or chance identification of any participant

Positive identification of the suspect

Refusal or chance identification of any participant

294 WILLElM A. WAGENAAR

police investigators. Since then extensive discussions of identification procedures have been published by Brooks (1983). Thomson (1988), Wagenaar (1988), and Wells (1988). But these discussions have served merely to underscore expert testimony in cases of disputed identity, without having the effect of changing routine police procedures. There- fore, this article presents some dramatic examples of what may go wrong when a few simple rules are not observed. The rules proposed in the present article are simple but they are little known among investigating police officers. This was shown by Wagenaar (1989) and in a wider sense by Sanders (1986). who demonstrated that New York police officers are aware of the problems of eyewitness identification but not of any research in this area. The present authors hope that this col- lection of cases will increase awareness.

Logical and Procedural Issues

1. Suspect known to witness. A positive identification is supposed to prove that the witness and the suspect met at the scene of the crime. This requirement cannot be achieved if the witness and the suspect knew each other before the crime or met after the crime and before the identification. For instance, if a witness states that he or she was robbed by a neighbor, it is meaningless to have the witness identify the neighbor in a lineup. A success does not prove that the earlier recognition of the robber was correct. The Dev- lin report lists a substantial number of cases in which identifications of people known to the witnesses appeared to be incorrect, which means that such testimony requires further corroboration. Lineup procedures cannot provide such corroboration.

2. One-person versus many-person lineups. A crucial assumption underlying the lineup procedure is that witnesses who have no accurate memory of the appearance of the person they encountered at the crime scene, if they make a positive response at all, are likely to select foils. Since the foils are known to be innocent, the errors are clear. This safeguard is lost when witnesses are confronted with one-person lineups, consisting of a sus-

pect and no foils. In that situation agreement among witnesses does not mean necessarily that the two objectives of identity testing are achieved, because the outcome could have resulted from a low response criterion. It was shown in twelve studies reviewed by Shapiro and Penrod ( 1986) that witnesses respond positively in about fifty percent of cases even when the target is not in the lineup. It is not known what the false-positive rate in one- person target-absent lineups is, because to date there are no published studies. But even if the rate of response is not as high as in the multiperson lineups, then it is still the case that all positive responses will hit an innocent suspect.

3. Use of mugjiles. Many investigations start with witnesses but no suspect. In such situations it is customary to present witnesses with a set of pictures from a police file, selected on an arbitrary basis, such as similarity with respect to the modus operandi. The purpose of these mugfile confrontations is to obtain names of possible suspects. The confrontations are a part of the investigation but not of the construction of legal proof. The distinction between investigation and evidence construction as two separate phases of the factfinding process has been discussed extensively by Thomson (1988). In eyewitness identifications, it is clear that logically convincing evidence can only be obtained by placing the suspect in a proper lineup. It is therefore advisable to stop confronting witnesses with mugfiles as soon as a suspect is found who can be placed in a proper photographic or physical lineup. This was proposed as a strict rule by the Devlin Commit- tee (p. 151). The reason why a mugfile confrontation is not a proper lineup is that it does not contain foils. Any positive reaction to a mugshot, right or wrong, might lead to a prosecution. The logic of figure 1 does not apply to mugfile confrontations, for instance, because often only one person in the file fits the description of the perpetrator. An extra disadvantage of a mugfile confrontation is that it restricts the circle of suspects to those who have had prior contacts with the police. Mug- file confrontations impose extra risks on this group.


4. Repeated testing. One reason why witnesses might recognize the face of a suspect without having seen the person at the scene of the crime is that the suspect was presented in a previous identification test. This can happen when a witness who has participated in a mugftle confrontation is later shown a physical lineup. In virtually all cases the innocent foils in the lineup were not present in the mugfile; hence, the suspect is the only person in the lineup who is presented for the second time. In the cases analyzed in this article there were many opportunities for repeated testing; three or four subsequent confrontations were not unusual, and sometimes the courts did not hesitate to accept a positive identification at the fourth encounter as legal proof, as if the other encounters had never happened. There is a vast psychological literature on the effects of interfering information between the criminal event and the identification. Examples are the literature on unconscious transference (e.g., Loftus, 1979) and on misleading postevent information (Loftus, Miller, and Bums, 1978; Wagenaar and Boer, 1987; Belli, 1989). This literature illustrates the simple logical fact that the rationale of identity tests is lost when witnesses know the suspect for another reason than the suspect’s presence at the scene of the crime.

5. Nonreporting. The inclusion of a reasonable number of foils in a lineup test re-

duces the likelihood of identifying the suspect simply by chance. The probability that an identification is due to chance is further reduced when many witnesses point at the same person. However, an unfair impression of agreement among witnesses is created when only the subset of positive identifications is presented to the trier of fact. It must be as- certained that all identification attempts are reported, including the refusals and the incorrect identifications. To experimental psychologists such a rule may seem wholly superfluous, but courts sometimes find it difftcult to see why unsuccessful identifications are relevant. The reason is, of course, that the logic of identity tests holds only if all or most witnesses identified the suspect. It should not be left to the judgment of the investigating

police officers whether or not to report identification attempts.

6. Contacts among witnesses. Another way in which witnesses might become aware of the identity of the suspect, without having seen him or her at the scene of the crime, is through contacts with other witnesses. These contacts may occur at various stages, such as during or immediately after the crime, during the subsequent investigation, in the sometimes extensive period before a case comes to court, or between the various sessions of different courts. It is not unusual to treat a married couple as independent witnesses, or thus to treat members of one family, close friends, colleagues working in the same department, or people from the same neighborhood, who had many months of contact with each other before their testimony was solicited. Simple statements like “He was a tall, fierce-looking guy” or “He reminded me of Elvis” made by one witness to another can have considerable consequences for the subsequent recall. Again, this risk can be substantiated by experimental evidence (cf. Carmichael et al., 1932; Bom- stein, 1974), but such experiments are not really needed to see that the logical basis of identity tests is lost when one witness tells another what the individual encountered at the crime scene looked like.

7. Incorrect prior description. A proper lineup should be constructed such that all participants fit the witness’s description of the person being sought in connection with the crime. It is meaningless to place a fat suspect in a lineup with skinny foils when the witness described the perpetrator as fat. Prior descriptions usually fit many people. The identity test is an instrument that helps to determine whether the witness remembers one specific person within the group assembled on the basis of prior description. Therefore, it is necessary that all participants tit this prior description. However, the composition of a proper lineup becomes problematic when the suspect does not fit the prior description; for instance, when the suspect is lean while the witness described a fat perpetrator. How should the foils be chosen? If they fit the prior description, the lineup will be one lean suspect among fat foils, which would direct

296 WILLEM A. WAGENAAR

attention to the suspect in an unfair manner. If the foils are chosen to resemble the suspect, it becomes necessary to ask the witness, Which of these lean people is the fat perpetrator you described to us? A logical decision is to exclude witnesses from identity tests if their prior descriptions are clearly discrepant with the suspect’s appearance. This solution is almost dictated when there are other witnesses who produced better fitting descriptions. If there is only one witness, one may seek a compromise, but it should be realized that the logic of the test is weakened.

8. Instructions. Ideally, witnesses should only identify a participant in an identity test if they are genuinely certain. In practice, the response criterion can be rather low, as il- lustrated by the fifty-percent overall response rate in target-absent lineups (Shapiro and Penrod, 1986). The danger of a low response criterion is, of course, that it increases the risk that innocent suspects will be erro- neously identified. This risk is further ele- vated when a suspect looks more like the individual seen by witnesses at the crime scene than any of the foils, which could happen easily if he/she was selected on the basis of previous mugfile confrontations, using other witnesses. The risks created by the low response criterion are increased also when some other procedural safeguards have been violated, as in the case of repeated testing, contacts among witnesses, or unfair foil selection. It is crucial to keep the probability of false alarms at a minimum. The literature has shown that an important influence on the response criterion is the instruction given to witnesses. In unbiased instructions witnesses are told that the perpetrator might not be in the lineup; in biased instructions this phrase is omitted. In one study a false-alarm rate of seventy-eight percent was found with biased instructions, against only thirty-three percent in unbiased instructions (Malpass and De- vine, 1981). Thus, giving unbiased instructions is an effective method for ensuring that the logic of identity tests is preserved as much as possible. In practice, the instructions to witnesses are rarely reported, which means that one can only speculate about what happened.

Another important aspect of the instructions relates to the choice procedure. In principle, witnesses should be told specifically whom they are supposed to identify if more than one person is being sought in connection with a crime or if they have been witnesses for more than one crime and that they can identify not more than one person in the lineup. The restriction to a single choice is related to test logic in a very obvious manner: when subjects point to a larger number of participants, there is increased risk that agreement among witnesses will occur by chance alone.

9. Lineup size. Foils are added to lineups for two reasons. One is to present witnesses with a choice dilemma that may prevent them from making an overly rash response. This precaution is effective, as became evident from a number of studies in which lineup size was varied systematically. The number of positive responses decreased when lineup size increased (Shapiro and Penrod, 1986). The second reason for the addition of foils is to make chance identification of the suspect unlikely. These two objectives are perfectly clear, but they have not led to the definition of a desired lineup size. In the Netherlands and the United States a lineup size of six, including the suspect, is accepted as normal, although smaller sizes are not prohibited. In the state of Israel seven foils is the mandatory number. In Great Britain eight foils are pre- scribed. In constructing lineups it should always be kept in mind that larger lineups provide greater safeguard against rash responses and chance identifications, but the optimal number must obviously be balanced by considerations of practicality.

The effects of a small lineup size could in principle be counterbalanced by an increase in the number of independent witnesses; the identification of the suspect by a large number of witnesses simply by chance would be highly unlikely, even if the lineup size is small. However, it is often difficult to establish or ensure independence among witnesses. Even if there are no contacts among witnesses, there is still the risk that they will make the same mistakes for the same reasons. Obviously, this is likely when the suspect bears an unusual


resemblance to the person the witnesses saw

at the crime scene, but other conditions, like previous exposure to mugfiles, repeated testing, and unfair selection of foils, can have the same effect. For that reason it is necessary to preserve the logic of identity tests for every single witness, which includes using a sufficiently large lineup size. A lineup size below six must be treated with suspicion, es- pecially when a case rests mainly on eyewitness identification. With only five persons in the lineup, a chance level of twenty-percent is obtained, which the present authors consider unrespectably high.

10. Foil Selection. Foils should provide plausible choices for those witnesses who do not clearly remember the person they saw. In practice, however, there are many ways in which even totally ignorant witnesses can find out who the suspect is, for example, if the foils do not fit the general description of the perpetrator provided by witnesses or if the foils are dressed differently. In a photographic lineup, the suspect’s identity can be inferred from a different lay-out of one picture, or, even worse, as in the case of Willy Darden, who was executed after fourteen years on death row, the name of the suspect might be writ- ten on the photograph (Dar&n v. Wain- wright, 1983; 1986). Foil selection is a difficult part of lineup testing. If there is any doubt about the suggestiveness of the lineup, it is wise to follow the proposal by Doob and Kirschenbaum (1973) or any variation thereof. In their technique the lineup is first presented to naive subjects (mock witnesses), who have never seen the perpetrator or the suspect. Usually these subjects receive a general description of the crime and the witnesses’ description of the criminal. Then they are shown the lineup and asked to select the participant who is most likely to be the wanted person. When the suspect attracts an excess of votes, the lineup selection is said to be unfair. Mal- pass (198 1) proposed various statistical mea- sures that express unfairness as a reduction of the nominal lineup size. In unfair lineups the effective size is much smaller than the nominal size. One way of handling the problem of foil selection is to require that the effective size be above a certain minimum.

Sometimes police investigators are unable to provide detailed information about the foils in a lineup test. Names and addresses of the foils are not known, the number of foils is not known, there is no description of their appearance, there are no photographs or video recordings. Consequently, it is not possible to form a judgment about the fairness of the identity test. Justice demands that the fairness of foil selection be established because the logic of identity tests depends critically on it. Hence, results of lineup identifications should be rejected when the investigators cannot produce detailed descriptions of the foils.

Il. Suggestion. Witnesses can be induced to point to the suspect after subtle suggestion on the part of the investigator. The process of suggestion in mental testing has been the topic of extensive research (cf. Rosenthal, 1966). Subtle suggestion can have powerful effects, even when neither the investigator nor the witness realizes that suggestion has occurred. Fortunately, there are ways to mini- mize the influence of suggestion. One is to use double-blind testing: both the witness and

the investigator are unaware of which participant is the suspect. Since double-blind testing is rarely done in the real world, two ad- ditional methods must be considered. In one, the witness is allowed to select only one person in the lineup. If a witness were allowed to point to several people, the investigator would have the opportunity to accept or reject responses arbitrarily. Knowledge of the suspect opens up the possibility that incorrect identifications will be rejected. The inter- viewer simply waits till the witness points to the suspect. Another method to consider is allowing the witness to have a limited response period. An extended period promotes development of an interactive process between witness and investigator in which cues can be transmitted unconsciously.

Even if the substantial psychological literature on unconscious suggestion is not considered, it remains obvious that the logic of identity tests has failed when the investigator betrays the identity of the suspect. This logic is also violated when there is a suggestive ar- rangement of the test situation. Examples are


permitting the suspect to be dressed in a special manner or inserting more than one photo of the suspect in a photo lineup. Such procedures direct the attention of the witness, even without the explicit intervention of the officer in charge of the actual test.

12. In-cow-t identification. In some cases witnesses are asked to identify the suspect in the courtroom. In most cases this is only a formality and not a part of the fact-finding process. In other cases, however, the court itself wants to be convinced of the witness’s ability to recognize the suspect. It is obvious that the logic of identity tests does not apply to a single suspect standing in the dock. Placement of the suspect in the audience does not change this situation, since the members of an audience cannot be considered to constitute a proper set of foils. The Devlin report excludes in-court identification in almost all circumstances because of its suggestive nature.

TEN CASES

This section presents ten cases in which one of the authors acted as an expert witness. The purpose of this presentation is to demonstrate how procedures used by police investigators may undermine the logic, and therefore the validity, of identity tests. It also demon- strates that such deviations do in fact occur, even to a considerable extent within a single

case. The first five cases occurred in the Neth-

erlands and the remainder in the United States. The cases are drawn from much larger collections and are not necessarily representative of these collections. Names of people and places, as well as dates or other nonessential details, were changed in order to protect the privacy of those involved. For the same reason there will be no references to these cases in the reference list, but on request these references may be obtained from the authors.

1. Rozeynse v. O.M.

On 17 February 1987 a small jewelry shop in the Hague was robbed by two masked men. The shopowners were a married couple of

Aruban origin, Mr. LeBlanc and his wife. Mrs. LeBlanc described the robbers as Aru- ban men, 1.70 and 1.65 meters tall. Both men wore dark coats, caps, and scarves around their faces. They spoke a mixture of Dutch and what Mrs. LeBlanc called “Negro-English.” When the robbers entered the shop, armed with a revolver and a shotgun, Mrs. LeBlanc pressed the silent alarm. The couple was forced to lie down in the office behind the shop, where they were bound. Then the police called to check what was wrong, and Mrs. LeBlanc was forced to answer the telephone and to say that nothing was amiss. After that she was forced to open the safe. When the police arrived, the robbers tried to leave the shop through the back door, which was locked. Mrs. LeBlanc spent several minutes finding the keys. When the door was opened, the short robber got out immediately. The taller man tried to take Mrs. LeBlanc as a hostage, but the couple convinced him that it would be easier for him to escape alone. Although there was substantial interaction between Mrs. LeBlanc and the robbers, she stated that she would find it very difficult to recognize the men because they had been wearing masks. Mr. LeBlanc added that the scarves left only the eyes of the robbers visible and that there was nothing special about the eyes.

The robbers escaped through the backyards of a number of houses. One of the two men was arrested when he tried to reach the street through one of the houses. The other hid in the yards. The name of the man who was arrested was Ronald Bankenhout. Eight hours later Mr. De Zwart, another neighbor, met a Black man in his yard, who asked whether he could pass through his house. He assumed that it was one of the neighbors, who had lost his key, so he let him pass.

Mr. LeBlanc was confronted with Banken- hout on 20 February in a one-person lineup. He recognized the suspect with loo-percent certainty, which is rather surprising, since Bankenhout had been disguised. He added that the same man had visited the shop one day before the robbery, together with a woman, and again later in the day with a man and a woman. LeBlanc was shown photos of an unknown number of people; he recognized four


of them as clients. He did not indicate that one of them was the second robber. He cer- tainly did not recognize the photo of Jesse Rozeynse, the man who was later accused of being the second robber. Mrs. LeBlanc confirmed the story about the people who had visited the shop the day before the robbery, but she did not recognize Bankenhout as one of those visitors nor as one of the robbers.

Bankenhout admitted his involvement in the robbery. He testified that the other robber was Jesse Rozeynse and that under the scarves they had worn nylon stockings around their faces. Rozeynse was arrested in the evening of 20 February. He denied any involvement in the crime, and his alibi was that he had been in bed with a woman during the time of the robbery. The alibi was at first confirmed by the woman, but later she withdrew her statement-Jesse had arrived at her place around 2.00 pm, which was after the robbery but before the second man escaped through Mr. De Zwart’s front door. On 22 February Rozeynse was shown to LeBlanc in a one- person lineup. LeBlanc recognized Jesse Rozeynse with IOO-percent certainty but when confronted with a recording of Jesse’s voice, he declared firmly that this was not the robber’s voice.

Mrs. LeBlanc was also confronted with

Rozeynse in a one-person lineup. She stated that he had the right height and build but that she could not recognize him because she had seen only the robber’s eyes. Again, this was somewhat surprising, because Rozeynse had mongoloid eyes, quite unlike those of other people from Aruba. Neither of the shopowners had described the eyes as mongoloid. Bankenhout withdrew his accusation of Roz- eynse on 21 February. His accomplice had been a man called Tommy, but such a person was never found.

The outcome of these confrontations was that Mrs. LeBlanc, who had a substantial interaction with the two robbers, did not recognize Rozeynse, while Mr. LeBlanc, who had seen much less of them, recognized him with loo-percent certainty. On 8 May Le- Blanc explained how he had been able to recognize Rozeynse despite the disguise worn during the robbery:

I recognized the second man because I have seen him at least ten times during the last four years. I believe he is Mrs. Murphy’s son. I have known her from Aruba for 20 years. She used to visit our shop. The second man had also visited the shop the day before the robbery. I recognized this man who had pressed the gun against my neck, and whom I have described as the taller of the two. I recognized him, because his face was very close when he pressed the gun against my neck, and because I had seen him so often, so seeing his eyes was enough to recognize him. As far as I remember I identified the same person with 75-80% certainty in the mugfile. I told the police at that time, but they told me to be careful, since an innocent person might be arrested. Now you tell me that the official document states that I did not identify the second man Rozeynse in the mugfile. I am surprised. I went through the mugfile together with my wife. At that time I told my wife that the (second robber) was Mrs. Murphy’s son. I also told this to the police.

LeBlanc added that he had seen Banken- hout’s face during the robbery because the scarf had slipped down in the panic. This was why he had been able to recognize him at the one-person confrontation.

On the same day in May Mrs. LeBlanc stated that she had recognized Rozeynse in the mugfile and that she had told the police. She also stated that had recognized him at the physical confrontation. When confronted with her previous statements, she stipulated that she had recognized him but had not told the police because she was very confused and afraid that Rozeynse would take revenge.

The surprising aspect of this case is that the two shopowners initially claimed that they did not see the faces of the robbers and that they would be unable to recognize them. Later they changed their statement-they had recognized Rozeynse despite his disguise simply because they knew him so well. They had known all the time that Rozeynse was the robber. The nature of the recognition test is rather different in the two situations. If they did not recognize Rozeynse during the robbery, it would have been meaningful to test their memory by means of a physical lineup. But, since Rozeynse was one of their clients,


all foils also should have been clients of the shop. If they had recognized Rozeynse immediately as a person they knew well, nothing could be further proved by a lineup pro-

cedure; it would prove they knew Rozeynse as a client, not that they had correctly recognized him during the robbery.

Another remarkable aspect of the case is the fact that the couple was allowed to leaf through the mugfile together, while discussing the case and the appearance of their assailants.

Rozeynse was convicted by the District Court but subsequently acquitted by the Court of Appeal in the Hague because these identifications, which constituted the only evidence, were not considered to be reliable. The procedural problems in the investigation are summarized in Table 1.

Analysis. The confrontation of witnesses with a suspect after they declared they had not seen the faces of the robbers is not without risk. Clearly, such a risky enterprise called for a multiperson lineup. The later statement that the witnesses had known the identity of the robber all along because it was a person they knew quite well should have led to a strong mistrust of the identifications.

2. Engels v. O.M.

On 8 July 1986 there was a fight in a bar in Tilburg. One of the participants, Harry Blaauw, was shot in the kidneys. Initially it looked as if he would recover, but then, he died several weeks later in the hospital, The man who shot Blaauw was seen by four other eyewitnesses: Mrs. Labouchere, Mr. and Mrs. Van Water, and Mr. Rienstra. They all said they did not know the assailant by name and described him as a tiny person, about 1.70 meters tall, 3.5 to 40 years old, with long blond hair, curls down to the neck. Two days after the event the victim, Harry Blaauw, described his assailant as 1.75 meters tall, aged forty with wavy hair between blond and brown, but he gave this description only after he learned that Engels was the suspect. Blaauw stated that he did not know Engels, but this is questionable, since Blaauw had been convicted for kidnapping and raping Engels’s girlfriend some months before the fight. This girlfriend was with Engels in the bar. Even if Engels had not previously known Blaauw, the girlfriend would have recognized him.

On 10 July Mrs. Labouchere examined photos from a mugfile. She saw an unknown

TABLE 1

PROCEDURAL PROBLEMS INTHE IDENTIFICATIONOF JESSE ROZEYNSE

Category Description

1.

2.

3.

4.

6.

7.

Suspect known to witnesses

One-person lineup

Use of mugfiles

Repeated testing

Contacts among witnesses

Incorrect prior descriptions

Rozeynse was known to both shopowners long before the robbery.

Both witnesses identified Rozeynse in one-person lineups.

An attempt was made to identify Rozeynse through the use of mugfiles at a time when his name was already known to the police.

Both witnesses were shown photographs of Rozeynse before the physical confrontation

The two witnesses were inspecting and discussing the mugfiles together. Their later statements about the suspect could have resulted from further discussions.

The two witnesses declared that they had not seen the faces of the masked robbers.


number of pictures, but two were of the defendant Hank Engels. It is not known whether

she saw more than one photo of anyone else in the mugfile. The witness identified both pictures of Engels. One day later Mr. Van Water was shown pictures from a mugfile. Again it is not clear which mugfile he saw and how many pictures were shown. The official document describing this identification attempt did not even mention whether En- gels’s picture was in the set. Van Water did not identify anyone. The following day, 12 July, the victim inspected an unknown number of pictures. He identified the picture of Engels but was not 100 percent certain.

The suspect, Hank Engels, was not appre-

hended until 10 September, some two months later. He claimed that he had not been in the bar on the night of 8 July. A physical lineup was conducted on 11 September. The lineup contained the suspect and four foils. Mrs. La- bouchere and Mr. Rienstra attempted an identification. Both pointed to the suspect, but Rienstra said he was not certain, because he had consumed fifty beers on the night of the shooting. On 12 September, another lineup was presented to Mr. and Mrs. Van Water. Both identified Engels with full certainty. The official documents indicated only that the foils were policemen who were not unlike the suspect in terms of age, build, and height, but it appeared from later descriptions that the suspect had been wearing a jogging suit while the foils wore more formal suits. It is not clear which foils served on which occasions, but the total set of foils consisted of these four men:

Van den Bosch; wears a beard, height 1.73 meters, age 41. Verhagen; heavy build, height 1.73 meters,

age 47. Sukotirdjo; Indonesian type, black hair, height 1.70 meters, age 26. Bakker; height 1.91 meters, age 43.

The suspect was blond, lightly built, 1.71 meters tall, and aged 46. Every foil differed in at least one essential feature from the descriptions provided by the witnesses: Van den Bosch had a beard, Verhagen was too fat,

Sukotirdjo was too dark and too young, Bak- ker was too tall. None of the foils could be described as having fair, wavy hair down to the neck.

The defense attorney argued that the lineup procedure was biased against his client because the costume of the accused was different and because the appearance of every foil conflicted with the prior description given by the witnesses. The District Court ruled that the three witnesses, Labouchere and Mr. and Mrs. Van Water, identified the accused and that the court “. . . knew of no circumstances that would lead to the conclusion that the confrontation in the police station in Til- burg between the forementioned witnesses and the group of persons including the suspect, was defective. n The Court of Appeal decided that even though there were some flaws in the identification procedures, Engels must have been the murderer because he was identified in the Court of Appeal by several witnesses. These in-court identifications were made after the witnesses had seen Engels’s picture in mugfiles and had seen him in live lineups and again during the trial in the District Court. Engels was sentenced to ten years of impris- onment, mainly on the basis of the identifications. The Supreme Court ruled that there are no laws on identification procedures and that it is the Court’s discretion to accept evidence as long as there is no conflict with ex- isting law. The case is now on appeal to the European Court.

The procedural problems in the Engels case are summarized in Table 2.

Analysis. The victim and the suspect both had criminal records, and so did some of the witnesses. It should be assumed that many of the witnesses knew Engels before the fight in the bar because they all were acquaintances of Blaauw, who had been convicted for kidnapping and raping Engels’s girlfriend. It is unlikely that Engels would not have been present at the court session in which Blaauw was tried. Engels had a very good motive for shooting Blaauw, but even if there had been no assumptions about possible motives, it was obviously wrong to place the rapist of the victim’s girlfriend in a lineup. Even if Blaauw

302 WILLEXIA. WAGENXXR

TABLE 2

PROCEDCRAL PROBLEMS INTHE IDENTIFICATION OF H.~NK ENGELS

Categon Description

1. Suspect known to witnesses 3. Use of mugfiles

4. Repeated testing

6. Contacts among witnesses

9. Lineup size 10. Foil selection

11. Suggestion 12. In-court identification

Some witnesses knew Engels before the shooting. Mugfile confrontations were held even after the police

had identified Engels as a suspect. Two witnesses who saw Engels’s picture were also

tested in a live lineup. Witnesses knew each other well and had many

opportunities for discussion of the case. Lineup sizes of 4 and 5. None of the foils matched with the description of the

suspect. All foils were police officers. The suspect was the only person in an informal suit.

Engels’s picture appeared twice in the mugfile. The Court of Appeal accepted proof of identity on the

basis of in-court identification only.

did not recognize his assailant, he would have sufficient reason to want Engels off the street. The same applies to the other witnesses, as they all belonged to the same criminal envi- ronment. Given these complications, it is highly surprising that the police did not take all necessary precautions to ensure a spotless procedure.

3. Twijnstrn v. O.M.

Mr. De Graaff was a garage employee in Haarlem. On the evening of Saturday 30 Oc- tober 1987 he was taking a money box containing Dfl. 52,000 to the bank when, while stopped at a traffic light, his car door was opened. A young man threatened him with a gun, grabbed the money box, and ran away. De Graaff drove back to the garage and told his colleagues that the robber was a young man who had visited the garage that same afternoon. At the time of the robbery it was already dark. De Graaff had seen the face of the robber only a few seconds when the man reached into the car. Altogether seven witnesses were involved in identification tests at various stages of the investigation.

De Graaff described his assailant as having a full head with wild, short, dark-blond hair, no glasses, no beard or moustache, 1.90 me-

ters tall, 22 years old. While running away, the robber passed Mr. Hofman, who was walking his dog, at such a close quarter that he had to jump over the leash. Three salesmen from the garage, Maassen, De Vries, and Teunissen, described the afternoon visitor to the police, but, of course, they had not seen the robber.

The suspect, Jerry Twijnstra, was appre- hended for reasons contained in “confidential information, brought to the attention of the police by an anonymous person.” His picture was entered in a mugfile, which was shown to some of the witnesses. At the trial it was revealed that at least three witnesses had taken part in prior identification attempts, which were never reported in official documents. It is not known whether the reported identifications by the other four witnesses were first attempts or not. The first, not reported, attempts used a photo spread with an unknown number of pictures. It is also not known who the foils in this spread were. It is even unknown whether the spread contained a picture of Twijnstra, because the police did not know his name at that time. When asked about this, the prosecutor stated that the first attempts were not reported because the results were negative. The pictures in this spread were selected by a computer, and it would not be


possible to obtain information about the composition of this spread. It was also not known how many pictures were used in the second photo spread and which people were in these pictures. Witness De Vries declared that the second set of pictures was different, which means that it could have contained the same suspect but different foils. It should not have been too difficult to pick out, from memory, the only person present in both sets. At the trial it was revealed that the second photo spread had consisted of about fourteen pictures, including two of the suspect. A third picture was of a person suspected of being an

accomplice. The remaining eleven pictures were of eleven different foils. Thus, the suspect was the only person to appear twice in the set. Moreover, De Graaff had viewed the suspect from behind an observation mirror, but there was no official documentation of this confrontation.

visiting the garage in the afternoon, which means that a later recognition does not logically prove that Twijnstra was the robber.

Neither De Graaff nor Hofman identified

Twijnstra at their first attempt. The positive identification eventually made by De Graaff was, in addition to the logical flaw, tainted by at least two procedural mistakes. First, it was possible that he saw the same picture of Twijnstra twice, each time with a different set of foils. Second, Twijnstra was the only person represented twice in the second photo spread. Hofman, the only witness who had seen the robber without having seen Twijns- tra in or near the garage, identified a foil with great certainty.

After two sessions in court, at which the suspect and some of the witnesses were present, a physical lineup, consisting of the suspect and five foils, was presented to Maassen and some other witnesses. It is not known who the others were, because only Maassen identified Twijnstra. It should be kept in mind that at this time Maassen had seen Twijnstra’s picture twice. He had also seen him in person in the courtroom of the District Court. Since the other identifications were negative, no further documentation was presented to the court. The prosecution and the court decided that reports about the negative identifications would be irrelevant. Hence, it is not known whether these witnesses stated that the target was definitely not in the set or whether they simply were not certain that they recognized anyone.

The three salesmen produced uncertain identifications of the afternoon visitor, testi- monies that were logically irrelevant. It is remarkable, however, that Maassen declared: “I recognize one of the pictures. I saw the same picture in November, but that is unre- lated to my present statement.” This could mean that Twijnstra’s picture was also in the first photo spread. In that case it is problematic that nobody recognized Twijnstra at the earlier attempt.

The instructions given before the identification attempts must have been somewhat imprecise, since Teunissen was allowed to point to three different pictures. The District Court in Haarlem decided that the prosecutor should provide more information on the identification tests since the whole case was based on eyewitness testimony only. While the court waited for this information, Twijnstra was released, after about six months in preliminary detention. He was acquitted a year later.

The procedural problems in the Twijnstra investigation are summarized in Table 3.

The only two witnesses who saw the rob- Analysis. It should have been obvious to ber were De Graaff and Hofman. The other the police that the whole case rested on witnesses had seen only a man visiting or eyewitness identification and that the only hanging around the garage. Twijnstra admit- witnesses who could identify the robber were ted that he had visited the garage on that De Graaff and Hofman. Even those identi- afternoon, but he denied being the robber. fications would be questionable, since both Hence, the identifications by witnesses other saw the robber in the dark and only for a few

than De Graaff and Hofman should be deemed seconds. Hence, a very critical test was irrelevant on logical grounds. The same ap- needed. It would have been better to obtain plies partially to the identification by the vic- the names of possible suspects through the tim De Graaff. He also had seen Twijnstra assistance of other witnesses, such as Maassen,

304 WILLEhl .a. WAGENAAR

T.ABLE 3

PROCEDURAL PROBLE~E IN THE IDENTIFICATION OF JERRY TNYJNSTRA

Cntegory Descriptiotr

1. Suspect known to witnesses

2. One-person lineup

3. Use of mugfiles

4. Repeated testing

5. Incomplete reporting


8. Instructions

10. Foil selection

11. Suggestion

Four witnesses, including the victim, who was the only one who identified the suspect as the robber, knew the suspect as a visitor to the garage.

De Graaff was confronted with the suspect in a one- person lineup.

All witnesses were confronted with mugfiles that contained no real foils, while the police already had a suspect.

At least three witnesses were Lested twice, possibly with only the suspect’s picture occurring in both spreads.

All witnesses who saw live lineups had seen Twijnstra’s picture. Maassen viewed a live lineup after having seen Twijnstra’s picture twice and after seeing him in the courtroom.

The official documents concealed the unsuccessful attempts of at least 3 witnesses.

blast uitnesses knew each other well and could not have avoided contacts before the identifications.

Instructions were imprecise: Teunissen pointed at three pictures.

Identity and appearance of foils unknown in all lineups.

The inclusion of two pictures of Twijnstra in the photo spread indicates that the investigators were unaware of the effects of suggestion.

De Vries, and Teunissen. In that case De Graaff and Hofman would have been saved for proper physical lineups. After both of the central witnesses were exposed to mugshots of Twijnstra, the opportunity for testing their memory was lost.

4. Vechter v. O.M.

On 23 August 1987, around noon, a bank was robbed in Zaanstad. A man wearing a woman’s dark wig tossed a plastic bag to the cashier, Mrs. De Zoete, pointed a gun at her, and demanded money. When Mrs. De Zoete left the counter to get money from the safe, the robber pointed the gun at Mrs. Meul- mans, another bank employee. Mrs. Meul- mans described the robber as having a dirty

face with light recessed eyes, high jaw bones, and a large nose; 1.83 meters tall, aged 36 years. Mrs. De Zoete described him as having a rough, dirty face, [email protected] meters tall, aged 35-40 years.

Jos Vechter became a suspect because he had been involved in a number of highly similar armed robberies. He denied any involvement in the Zaanstad robbery. He was placed in a lineup with five police officers as foils. All participants were wearing wigs that re- sembled the wig used by the robber. Vechter fit the description given by the witnesses, except that he was aged 30 at the time of the robbery and somewhat smaller than the mentioned 1.80 to 1.85 meters. The witnesses did not mention a beard or moustache, and indeed Vechter had neither. However, three of

Ten Cases of Eyewitness Identification 30.5

the foils had moustaches, which automati- cally rendered them implausible as foils. All foils were wearing formal black service shoes, but Vechter wore white sneakers. The numbers designating the participants in the lineup were placed between their feet, so that witnesses could not miss the different footwear. Vechter complained about the shoes before the identification, but the police officer in charge assured him that it was all right.

Mrs. Meulmans was the first to attempt identification on 18 October 1987. She pointed at Vechter almost immediately and declared: “I recognize him with 100% certainty as the man who robbed the bank on August 23. There is no doubt. I recognize him by his face.” Then the six men were requested to position themselves in a different order, and Mrs. Meulmans attempted a second identification. Again she pointed at “the man in the sneakers.” Mrs. De Zoete attempted identification with the same lineup. She did not identify anyone, neither in the first nor in the second attempt.

The District Court in Amsterdam conceded that the identification was

less than perfect with respect to setup and ex- ecution. But . . from this the court cannot decide that the recognition was totally unacceptable as legal proof, since the expert did not exclude the possibility that the witness was correct when she recognized the accused.

Hence, since the defense could not prove that the lineup had produced an incorrect identification, it was assumed that it had produced a correct identification. Vechter’s conviction was predominantly based on eyewitness identification. The procedural problems in this case are summarized in Table 4.

Analysis. The identification of Vechter de- pended on the memories of two eyewitnesses who had seen a disguised robber under stress- ful conditions. Investigators should have realized that this situation called for a critical test of memory. The small lineup size, the inclusion of three implausible foils, and the different attire worn by Vechter, all suggest that the police investigators were not aware of the basic problems of lineup tests.

5. Phgge v. O.M.

Mr. Schuurman was charged with stealing a car radio in Nunspeet, in the night of 18- 19 October 1987. He confessed to the charge and added that after the theft he had wit- nessed two men burglarizing a nearby supermarket. With the car radio in his hands, he had hidden behind a pillar and seen how the two men forced their way into the supermarket through the back door. Several minutes later they had appeared again with their arms full of goods, which they placed in the trunk of their car. This was repeated six or seven

TABLE 4

PROCEDURAL PROBLEMSINTHE IDENTIFICATIONOF Jos VECHTER

Category

4. Repeated testing


7. Prior description

9. Lineup size 10. Foil selection

11. Suggestion

Description

The repeated tests for both witnesses were useless, since it was easy to remember the one person in sneakers.

Witnesses were close colleagues, who could not avoid discussing the case between August and October.

The suspect did not fit the prior description in all respects.

Effective lineup size was only 3. Three foils with moustaches did not fit the prior

description. All foils were police officers. All foils were wearing black service shoes, while the

suspect wore sneakers.

times. Schuurman saw the burglars at a distance of about 30 meters. Their faces had been clearly illuminated by the street lights. He described the first burglar as a man of 40 years, with short black hair. He described the second burglar as about 20 years old with blond hair and stated that the car they used was a black Mercedes with Dutch plates.

The Mercedes was found near the railway station of Uitgeest. The police assumed that the burglars had continued their journey on the first train that passed Uitgeest on the morning of 19 October. On 23 October the controller of the train, Mr. Roetink, was confronted with eight pictures of men who had been involved in supermarket burglaries before. He recognized the picture of Gaston Plugge with 70percent certainty. He had sold a ticket to this man, and he would be able to recognize him in a live confrontation. The identity of the individuals in the other seven pictures is not known. On 25 January of the next year Roetink was confronted with Plugge in a one-person physical lineup. He recognized him with loo-percent certainty. On the

same day Plugge was presented to Schuur- man (the radio thief) in a one-person line-up. Schuurman recognized him with loo-percent certainty as the younger of the two burglars, the man he had described as blond and 20

years old. Plugge was first interrogated on 28 Janu-

ary. He denied any involvement in the crime. His age was 32 and his hair was dark, not blond. The only other evidence against Plugge was that a dog picked him from a lineup, af-

ter smelling at a screwdriver found in the Mercedes. Schuurman was allowed to adapt his description of the younger burglar after the confrontation: he now remembered that his hair had been dark.

The District Court acquitted Plugge because the evidence was unsatisfactory. The State appealed, but the Court of Appeal confirmed that the identifications did not prove the charge. The procedural problems in this simple case are listed in Table 5.

Analysis. This case is set in the world of petty crime. One thief accuses another thief, and an obvious reason could be that Schuur- man would not want to be charged with the supermarket burglary if he had committed it himself. In that case he would grab every opportunity to identify another person as the thief. The identification of Plugge by the train controller did not prove anything at all, since the whole mugfile consisted of known supermarket burglars. Any identification would have started a prosecution. The subsequent one-person lineup had no value vvhatsoever, since it was not difficult for Roetink to recognize the person he had identified in the photo spread. The only critical evidence would be the identification of the suspect by Schuur- man in a multiperson lineup. This opportunity was lost when Plugge was shown to Schuurman in a one-person lineup. The discrepancy between Schuurman’s prior description and Plugge’s appearance did not signal to the police that Schuurman was possibly not reliable and that a critical test was needed.

TABLE 5

PROCEDURAL PROBLEMS INTHE IDENTIFICATIONOF GASTON PLUGGE

Category

2. One-person lineup

3. Use of mugfiles

4. Repeated testing 7. Incorrect prior description

Description

Both witnesses were confronted with Plugge in one- person confrontations.

The initial identification of Plugge was based on a mugfile confrontation.

Roetink took part in two tests. Every detail of Schuurrnan’s prior description was

incorrect. Roetink was not asked to describe his passenger.


6. State of Nevada v. Jensen

On 21 October 1987 a seven-year-old boy, Peter, disappeared. He had been with his parents visiting relatives in Las Vegas and was returning home to Los Angeles. The family stopped at the Lucky Gambler’s Casino and Hotel, located at the California-Nevada state line, to allow Peter to play video games for one hour and for the adults a last chance to gamble. The mother dropped Peter off at the video arcade located adjacent to the hotel-casino registration desk and never saw her son again.

Several witnesses reported observing a white male, aged 35, wearing glasses, balding, dressed casually with a brown jacket, leading the victim down the hall. Artist composites were obtained and released on 27 October. Approximately two weeks later Peter’s body was found underneath a mobile home on the hotel premises. There was heavy media cov- erage. Names of all guests registered at the hotel were reviewed. Driver’s license photos of likely candidates were obtained. These were shown to many possible witnesses, and at least three witnesses, two employees and one guest, were taken to the place of business of one likely candidate, Karl Jensen. They identified him. It is not clear why not all witnesses were tested in this manner. The probable answer is that others did not identify Jensen in a prior photographic test. Jensen had indeed visited the Lucky Gambler’s Hotel, but he denied any involvement with the crime. This means that all witnesses could have seen him at the hotel, that is, he could have been known to the witnesses for reasons not directly relevant to the crime.

The witness Maria Scott, a blackjack dealer at the hotel, claimed that she observed the “man with the boy” for three or four minutes, although she did not contact the police till one week after the event. A fellow employee had mentioned to her that the televi- sion picture of the suspect “looked like John McGuire,” another employee at the hotel. She saw a photographic lineup in December, more than four weeks after Peter’s disappearance. In the meantime she was exposed to the artist sketches and numerous photos. In her inter-

view on 28 October she testified that the man she saw with Peter was, in fact, McGuire. The following December, when the police had told her that the man was not McGuire, she chose from the six-person photo spread a picture of the only person who looked like John McGuire-Karl Jensen. On 28 December 1987, two and a half weeks after having seen Jen- sen’s picture in the photo spread, she identified him at his place of business in San Jose.

The witness Carlo Springer, a waiter at the Lucky Gambler’s Hotel, was also exposed to numerous sources of postevent information during the interval between seeing the “man and boy” and his eventual identification of Jensen. He was also interviewed repeatedly in the presence of his wife and was exposed to her version of the event. Moreover, the two Springers participated together in production of a composite drawing, and they talked with one another in the parking lot on 3 January 1988, when they spotted Jensen arriving at work. Mrs. Springer was not called upon as a witness in the subsequent trial. After the in- person confrontation, Carlo Springer was again shown a photographic lineup. He picked out Karl Jensen again, and, when asked to indicate a level of confidence using a scale of I to 10, he said “10.” This was presented as evidence that Springer was certain of his identification.

The witness Judy Ford was a visitor to the Lucky Gambler’s Hotel. She was shown a videotape taken in the hotel on the day of Pe- ter’s disappearance. Then she looked at artist sketches prepared with the help of other witnesses and at photos of guests, including one of Jensen. On I.5 December 1987 she identified Jensen at his place of business, two months after the event.

Karl Jensen was charged with the murder of Peter on the basis of these identifications only. The procedural problems are summarized in Table 6.

Anafysis. Jensen was never identified in a proper lineup, and all identifications of the live suspect were preceded by numerous ex- posures to verbal descriptions, sketches, and photos. It looks as if the police worked without any systematic plan and that they did not realize that the identification procedure would

308 U’ILLEkl A. WAGEN.AAR

TABLE 6

PROCEDL’RAL PROBLE~IS IN THE IDENTIFICATION OF KARL JESSEN

Catego? Description

1. Suspect known to witnesses All witnesses could have seen Jensen in the hotel as an ordinary visitor.

3. Use of mugfiles The photo spreads consisted of people who were all possible suspects.

4. Repeated testing All three witnesses were subjected to repeated tests. 5. Nonreporting It is not clear how many other witnesses failed to

identify Jensen. 6. Contacts among witnesses 1Mr. and Mrs. Springer heard each other’s description

of the criminal and were allowed to have discussions during the identifications.

10. Foil selection The identification of Jensen at his place of business did not involve any foils matched with respect to appearance.

be extremely critical, since all witnesses could have seen Jensen as a visitor at the hotel. A more appropriate test would have been to place Jensen in a lineup consisting entirely of people who had visited the hotel and who met the prior description.

7. State of Connecticut v. David O’Neill

On the night of 9 May 1988, at approximately 10: 15 p.~.,Walter Norman saw a man lurking inside the Tree Elms Pharmacy. Nor- man crossed the street toward the pharmacy and then chased a man who had escaped through a small window at the back. Norman tripped and fell, and the man got away. Al- though it was dark, he thought he got a good look at the man. Norman called the police from a nearby delicatessen and reported what he saw. A police officer came to the deli to take a report. When he heard Norman describe the man as being *red-haired, stocky build, five foot, six inches tall,” he said, “sounds like Davy O’Neill. n The officer then took Norman in the police car to the home of the suspect, O’Neill. O’Neill stood under the porch light, and Norman identified him.

O’Neill was charged with breaking and en- tering the pharmacy and with stealing drugs. The only evidence against him was the single eyewitness account. The reason the officer

associated Norman’s description of the criminal with O’Neill is that O’Seill had years before been addicted to prescription drugs and had obtained them illegally from the same pharmacy. It remained a matter of dispute at the trial whether the pharmacy had actually been broken into or whether any drugs had been taken.

O’Neill’s wife worked in that same pharmacy, and O’Neill visited her regularly during her working hours. Since Norman had done considerable work on the exterior of a building across the street from the pharmacy, he had ample opportunity to see O’Neill. Moreover, O’Neill visited the deli twice that evening, which could have given Norman ad- ditional opportunities to see him on the evening of 9 May.

O’Neill was tried in March 1989. The jury was hung, and it is uncertain whether the case will be retried in the future. The procedural problems in this case are listed in Table 7.

Analysis. The conditions in which Nor- man saw the burglar (if he saw anyone at all) were poor. His description would fit many other men, and the police officer’s conclusion that it must have been O’Neill was overly rash and suggestive. The one-person identification test, conducted from a distance under a porch light, provides an optimal condition for such suggestion to have an effect. Given


TABLE 7

PROCEDURAL PROBLEMS IN THE IDENTIFICATION OF DAVID O’NEILL


1. Suspect known to witnesses Norman knew O’Neill before the night of the alleged break-in. He could also have seen him that night in the deli.

2. One-person lineup O’Neill was identified while standing in his doorway.

11. Suggestion The police officer’s immediate naming of O’Neill and the visit to O’Neill’s house were very suggestive.

that there was not even a sign of burglary or theft of drugs, it is hard to believe that a person might be charged with these crimes on the basis of such a flimsy identification.

8. People of California v. Jackson

On the night of 9 July 1988, about 1 I:30 P.M. two Black women and three of their children were driving home from church. On the way home to Santa Monica, California, they were harassed by two Black males driving in a car that they later described as a green, late-model, luxury vehicle. The women’s car was forced to stop, and the passenger from the other vehicle got out and shot into the victims’ car. Several victims were injured, and a five-year-old girl was killed. The driver, Angie Malcolm, and her 21-year-old daughter, Suzie, eventually became eyewitnesses.

A little later, police officer Martinez was buying gas at an all-night gas station about a mile away. While he was pumping gas, he noticed a Black male pumping gas nearby. The Black male engaged Martinez in some strange conversation, which made the officer so suspicious that he memorized the license number of the car, a gray and blue Buick, which the man got into on the passenger side. Just after the strange conversation the driver, also Black, returned to his car, and the two drove off. The next day, when the officer heard about the shooting, he reported his ob- servations. The car was traced to a Black man, Bobby Jackson. Jackson owned several cars and claimed that he had loaned his car to a friend that night. Jackson was charged with murder and accused of being the driver (the

passenger/gunman was identified as a man named Mitchell, who was tried separately). For the sake of simplicity, only Jackson’s case is discussed here.

The two Black women victims described the driver as a Black man with a round face and longish hair, brushed back. Together they participated in the composition of an artist’s sketch. Later, on 12 July, these women were shown photographs, as was police officer Martinez. A total of five photos were shown, including one of Jackson. Angie and Suzie viewed the photos separately. Angie picked number 2 (Jackson) and number 3, both as possible suspects. Suzie picked number 2 as the driver and number 4 as the passenger. She stated that the hair of number 2 was wrong. The culprit had hair that was not braided and had a fuller face. Martinez also picked number 2, saying that the man he remembered had looser hair and more of a moustache. In the officer’s memory, the culprit had a full moustache, although Jackson had never been able to grow more than a very light moustache.

On 15 August a physical lineup was conducted. It contained six people, with Jackson in position 4. It is highly likely that Jackson was the only person seen in both the photos and the lineup. In the lineup, Jackson wore prisoner’s shoes, while the foils did not. An- gie and Suzie picked number 3 and Martinez picked number 4. The next day Suzie called the police after reading in the newspaper that she and her mother had not identified the suspect. She told the police that she thought she was supposed to be identifying the passenger, not the driver. She claimed that both she and her mother remembered number 4 as


the driver. The police officer, Martinez, was tified the wrong person as the passenger/ contacted again and asked whether he meant gunman. This should indicate only that they to be identifying the driver or the passenger, really did not remember the faces of either and he said “the passenger.” He was then culprit very well, since they had been ex- asked to come to the police station. There he posed to the passenger for a much longer pe- was shown all the previous photos he had seen riod. None of the witnesses identified Jack- in the investigation of both Jackson and son initially as the driver, but the later Mitchell. After lengthy discussions of his statements were still accepted as proper iden- previous statements, he was finally per- tifications. Even the reason for suspecting suaded that in the physical lineup he had Jackson in the first place was dubious, since identified number 4 as the driver. Jackson was the evidence was based on a memorized li- convicted of murder, largely on the basis of cense number that appeared to belong to a car these eyewitness identifications. The proce- that did not fit the description given by Angie dural problems are listed in Table 8. and Suzie Malcolm.

Analysis. The three witnesses were exposed to repeated testing, without any logical necessity. Jackson’s name was known to the police because Martinez remembered his license number. The presentation of photos, therefore, was wholly superfluous, since Jackson could be shown in a physical lineup. The photographic test was not critical, since it consisted of mugshots that were not prop- erly matched for appearance with the artist’s sketch. Then a physical lineup was conducted in such a way that all witnesses were confused about which suspect, or how many suspects, would be presented. All three iden-

9. State of Texas v. Elgar

On 30 March 1980 at 3:00 AM a man broke into Ann Murphy’s house and raped her and her 19-year-old daughter, Julie. The man had been wearing a mask and he had blindfolded his victims, but the two women had sufficient opportunity to observe his general features. They described their assailant as a white man of 1.75 meters, weighing 80-90 kilos, with thick, curly, brown-to-black hair and a moustache. About a month later the victims contacted the police and reported that they

TABLE 8

PROCEDURAL PROBLEMSINTHE IDENTIFICATIONOF BOBBY JACKSON


3. Use of mugfiles

4. Repeated testing



8. Instructions

9. Lineup size 11. Suggestion

Jackson was first identified through a series of five mugshots.

Both witnesses saw a photo spread before viewing the physical lineup.

The two witnesses, Angie and Suzie Malcolm, were mother and daughter and had ample opportunity to discuss the appearances of the criminals.

The descriptions given by the three witnesses were not fully compatible with Jackson’s appearance.

The confusion about the physical lineup was caused by the obviously ambiguous instructions.

The photo lineup had only four foils. It was suggested to the two victims through the

newspaper that they should change their identifications. It was suggested to Martinez to change his statement in a lengthy special session.


remembered the criminal was a man they had met before at a party. The daughter, Julie, also knew the man through her job. His name was Roy Elgar. The police constructed a photo spread containing one picture of Elgar and five of foils. Elgar fit the description initially produced by the victims, although he was a little smaller and lighter, but that did not show in the photograph. Two of the foils did not fit the description: number 5 had short, straight hair, and number 6 had straight, blond hair. A third foil, number 1, was shown in profile, while all others were shown full-faced. Hence it could be argued that the effective lineup size was only three, one suspect and two foils. Both women picked out Elgar without diffi- culty. A physical lineup was arranged a few days later, with different foils. Again Elgar was identified as the rapist. Elgar denied any involvement in the crime, but he was convicted and sentenced to fifty years in prison on the basis of eyewitness identification alone. Two months after the conviction the noto- rious “ski-mask rapist,” a man convicted of many rapes, confessed to this crime and provided so many details that the truth of his confession is not doubted. The victims were shown the videotape on which the true culprit confessed, and they reacted in utter disbelief. They maintained that Roy Elgar was the rapist, but Elgar was set free without delay. The

procedural problems of this case are summarized in Table 9.

Analysis. The most striking aspect of the case is that the two women were asked to identify a person they already knew, whose name they had given to the police. Picking the only familiar person from a lineup with unfamiliar foils is not an enormous feat. Thus. the whole case rested on the initial recognition. However, it took the women a full month to realize that they knew their assailant, and it is not known what kind of interaction between the women led to their belated insight. The case is not unlike number 1 presented above, in which the victims of an armed robbery in a jewelry store “recognized” the masked robber after two weeks. It is very natural for victims frustrated by inability to identify a culprit to engage in an ongoing analysis of memorized images of a masked assailant. But there is no guarantee that this process will lead to correct insights; on the contrary, it is quite possible that it will lead to transformations of memory such that the remembered image will finally resemble a familiar person. It is, in any case, logically impossible that such ongoing analyses will yield the name of a person the victims did not know before. In the present case there was no other evidence than the victims’ statements, and legal proof was, therefore, extremely difficult.

TABLE 9

PROCEDURAL PROBLEMS IN THE IDENTIFICATION OF ROY ELGAR


1. Suspect known to witnesses Both witnesses declared they had known the suspect before the crime.

4. Repeated testing Both witnesses participated in a photo-spread identification and a physical lineup, and Elgar was the only person to appear in both.

6. Contacts among witnesses The two witnesses, Ann and Julie Murphy, were mother and daughter and produced their identification only after one month of intense interaction.

10. Foil selection Two of five foils in the photo spread did not fit the description and one was shown in profile.

12. In-court identification Both witnesses identified the suspect in the courtroom before a jury.

Resorting to identification tests was no solution, as such tests cannot verify the reliability of the mental analyses that went on in the heads of the victims.

10. State of Florida v. Lanvood

On 17 May 1986 at 9:00 PM a man knocked on the door of Sue Lewicki, aged 23. Her friend Martin had just left, so she assumed that he had forgotten something and come back. She opened the door without further checking and faced a young white man with a butcher’s knife in his hand, who told her to take her pants off. A struggle followed, and Sue was stabbed twice with a knife. Then the man got scared and left the scene in a hurry. Sue described the criminal as a teenaged boy, 1.65-l .70 meters tall, weighing about 60 kilos. The boy’s most conspicuous feature was that he wore braces on his teeth. Sue reported the braces on four different occasions. Markus, the police officer who in- vestigated the case, first interviewed a neighbor, Carla Menninger, and asked her whether she knew a teenager with braces. She mentioned a teenaged boy by the name of Ted Larwood. Markus, who lived in the same area, then called his own teenaged son and asked him whether he knew this young Larwood. The younger Markus knew him as a trouble maker, who was once caught smoking mar- ijuana. This convinced officer Markus that Larwood was his man. One day after the crime he composed a photo spread, using a yearbook picture of Ted Larwood and five other pictures. In this picture Larwood had his mouth shut, so that it was impossible to see whether or not he had braces. The photo spread was not shown on the same day to the victim, Sue Lewicki. On the second day after the crime, Markus asked his colleague, McFarlin, to produce a composite portrait based on the description given by Sue. Later Markus testified that he did not show Larwood’s yearbook picture to McFarlin at that time, but he had been in the position to do so and his word is the only evidence that he did not. This aspect of the case is crucial, because after the verdict it became known that the judge had based his decision in part upon the remark-

able likeness between the composite drawing and Larwood’s picture. This likeness was really amazing for those who assumed that McFarlin used only the sparse verbal description produced by Sue immediately after the assault. McFarlin visited Sue in the hospital to check the accuracy of his picture, and she suggested only a slight change in the hairline. The man in the composite drawing had his mouth closed, as Larwood did in his yearbook picture, although the verbal description had been very explicit about the braces. On the third day after the crime the photo spread composed by Markus was shown to Sue in the hospital. First she was shown the composite drawing again, then she saw the photos. Sue hesitated between number 2 (Lar- wood) and 6. Markus then covered the hairline of both portraits (remember that the hairline in the composite drawing differed from Lar- wood’s hairline, after Sue had suggested a change). At the same time Markus told Sue, “I can tell you see him.” Sue then pointed to number 2, the picture of Ted Larwood.

Ten days after the crime Martin LaRocco, Sue’s boyfriend, reported at the police station. He claimed that he had seen a teenaged boy after leaving Sue’s apartment on the night of the crime, and he requested to be subjected to an identification test. He was shown a different spread, with Larwood in profile and all foils full-faced. There is no mention of why Larwood’s picture was changed, but it was openly suggested that LaRocco had failed in the regular spread. With the second spread LaRocco identified Larwood without any hesitation.

Ted Larwood had a very strong alibi. He had gone out for dinner with his parents and two sisters, he had not left the restaurant, and the date and time of day were supported by a computerized restaurant bill. This placed him twelve miles from the scene of the crime at the appropriate time. Also, Ted never had any braces. When Sue learned that Ted had no braces, she withdrew her statement, claiming that she had been misled by the re- flections of the blickering knife. However, two neighbors, who had seen a teenaged boy around the premises, had also mentioned braces. It was not reported whether these


neighbors were subjected to an identification test, which does not mean that they were not. Again, rumors held it that in fact they had failed such a test. Sue Lewicki and Ted Lar- wood lived fifty meters apart, which means that Sue must have known the suspect by sight. The same holds for Martin LaRocco, who had visited Sue almost daily.

Ted Larwood was convicted on the basis of eyewitness testimony only, despite his un- shakeable alibi. He got fifteen years in prison. A revision of the ruling is now being attempted. The procedural problems in this case

are listed in Table 10.

covered, the only detail that was explicitly made to hit her memory. Then Markus told her that the criminal was no doubt within the spread. Then she pointed to the only person that she knew lived in her neighborhood. The outcome of this unacceptable procedure re- ceived more weight than the very strong alibi and the fact that Larwood had never worn

braces.

DISCUSSION

Analysis. In this case the victim is the only It is obvious that the ten cases do not con- person who had a good look at the criminal. stitute a random sample of fact-finding pro- But the identification by this central witness cedures. First of all, the cases were all tried was flawed through the extremely suggestive in the authors’ two native countries, and it procedures. First she saw a composite draw- could be argued that identifications are con- ing of the criminal that showed, in the words ducted much better elsewhere. However, there of the prosecutor, an “uncanny likeness” to is little evidence to support such a claim and the suspect’s yearbook photo. Then she was ample anecdotal material to reject it. The offered the photo spread; it was like an in- Devlin Report presented a detailed discussion struction to find the person who looked most of only two mistaken identifications that were like the composite drawing. Then, when she marred by a multitude of procedural weak- could not make a choice, the hairline was nesses, and then added the general statement

TABLE 10

PROCEDURAL PROBLEMS IN THE IDENTIFICATION OF TED LARWOOD

Catenorv Description

1. Suspect known to witnesses

5. Incomplete reporting



8. Instructions

11. Suggestion

The victim, Sue, lived 50 meters away from Larwood and must have known him by sight. Martin LaRocco also must have known him.

It was strongly suggested that LaRocco and two neighbors participated in unreported identification tests and failed.

LaRocco was tested ten days after the crime. In this period he must have had intensive contacts with the victim.

Larwood did not wear braces, contrary to what was reported by the victim and two neighbors.

The instructions during the test stressed that the culprit was definitely in the photospread.

The prior presentation of the composite drawing with an “uncanny likeness” to the suspect may have suggested that the objective was to find the man presented in the drawing. The covering of the hairline was also a violation of standard procedure.

314 WILLEM .4. WAGENAAR

that identification is one of the weak spots in the practice of legal fact-finding:

The CLRS (Criminal Law Review Commit- tee) in its Eleventh Report, paragraph 196 said: ‘We regard mistaken identification as by far the greatest cause of actual or possible wrong convictions.” There has been a number of ju- dicial dicta to the like effect. Many English

judges, although they have not gone so far as the Supreme Court of the Republic of Ire- land, which laid it down that in all cases where the verdict depends substantially on the cor- rectness of an identification the jury must be specially warned, have noted that identification cases are always difficult and a cause for anxiety. In October 1974 Lord Justice Scar- man in the Court of Appeal spoke of ‘the vexed question of how the court should deal with identification evidence,” and later: ‘We all know there is no branch of human per- ception more fallible than identifying a person.” The Lord Chief Justice in an address to the Magistrates’ Association in October 1974 referred to it as “perhaps the most se- rious chink in our armour.” Sir Norman Shel- ton, the Director of Public Prosecutions in his evidence to us called it “the Achilles heel of British justice.” (p. 75)

This statement does not suggest that mistaken identifications are always and exclu- sively the result of procedural weaknesses, but the report’s extremely detailed discussion of procedural matters stresses their impor- tance as perceived by the Devlin Committee. This is also evidenced by the clear stand taken on breach of procedural safeguards:

If the trial judge considers that a breach of the rules (or any other piece of misconduct or misfortune) has made the test unsatisfactory the parade or the part of it affected should by statute be treated as a nullity and any evidence that emerges out of it should be excluded. (p. 151)

From these two statements it is obvious that the Devlin Committee considered procedural errors as a major obstacle in identification practices.

Another source of bias in the selection of cases discussed in this article is the fact that

in all ten cases the defense refused to accept the identifications. These might have been the only cases with bad identifications that occurred while the authors were serving as expert witnesses. However, we fear that courtroom files are full of cases in which procedural problems accumulated in the same manner, and that those involved in the legal practice could easily add more examples from their own memories.

It is true that, because a representative sample was not used, the frequency with which the various types of problems occurred cannot be held to be representative of actual practices throughout the world. Moreover. it was not possible to determine the precise procedures in some of the cases. For instance, problems with instructions were noted in three cases in an indirect manner, simply because instructions were never explicitly mentioned. It is not at all unlikely that biased instructions were given in all ten cases. Another problem is that some types of errors could not occur because the investigators never got that far. For instance, the unfair selection of foils was not an issue in those cases in which the investigations utilized one-person lineups ex- clusively. Despite these limitations, this selection does clearly indicate that problems with identification procedures are manifold and that they can accumulate in a single case to such an extent that the logic of identity testing is definitely lost. Altogether sixty problems were found in the ten cases. The remainder of this section summarizes these problems and outlines procedural rules or guidelines that may prevent the occurrence of similar problems in the future.

1. Suspect known to witnesses. In seven

cases the witnesses knew the suspect prior to the crime. In the Twijnstra case the majority of the witnesses had never even seen the perpetrator at the scene of the crime. In the En- gels case the nature of the relationship before the crime was such that the witnesses could have had a motive to point at the suspect, even if they knew he was not the perpetrator. It is obvious that prior acquaintance disrupts the logic of identity testing. Police investigators and sentencing courts should see to it that lineup procedures are used only in those


cases in which there existed no relationship between witnesses and suspects prior to the

crime. 2. One-person lineup. Four times identity

was established through a one-person lineup. Besides the fact that the logic of identity testing does not apply to one-person lineups, it should be realized that the combination with other procedural weaknesses, such as prior acquaintance or repeated testing, is fatal. One positive effect of a large and well-chosen lineup is that witnesses are made aware of the fact that many people fit their prior description and that they should be quite certain before pointing to anyone. A one-person lineup, combined with inclusion of a person familiar to the witness or repeated testing, tends to strengthen the witness’s certainty instead of challenging it, even in those cases in which witnesses are wrong. In all four cases one- person lineups were combined with at least one of these other weaknesses. The rule emerging from this consideration is quite simple: in case of doubt, identity should never be established through a one-person lineup.

3. Use of mugfiles. Mugfiles were used in six cases. In five of these cases mugfiles were initially shown in order to find suspects, which is a normal and acceptable procedure in the investigative phase of the fact-finding process. But those tests should have been excluded from the evidence, because mugfile inspections lack the safeguards that are needed in proper identification tests. They were not. In five of these six cases mugfiles were shown to witnesses even after a suspect was available to be placed in a live or photographic lineup. The Devlin report is very explicit in its rejection of this procedure. When suspects are first identified through mugfile inspection, this means that witnesses have been confronted with the suspect outside the con- text of the crime. Therefore, it is indicated that proper lineups must be presented to other witnesses. This was attempted in the cases of Engels and Jackson but omitted in the cases of Twijnstra, Rozeynse, Plugge, and Jensen. Hence, uncontrolled mugfile inspections were a significant factor in four of ten cases. The rules emerging from this short discussion are again simple and clear. Mugfile inspections

should be used only in the investigative phase and only as long as there is no suspect who could be placed in a proper lineup. Prefera- bly, witnesses should be excluded from further identification tests if they engaged in mugfile inspections. If there are only a few witnesses, so that the combination of mugfile inspection and proper identification cannot be easily avoided, attempts should first be made to find the names of suspects in other ways, for instance through composite drawings, or artist sketches.

4. Repeated testing. Repeated testing occurred in eight of ten cases. In most cases the repetition was arranged such that the suspect was the only person appearing in successive

tests. Hence, even if recognition did not occur in the first test, it should have been quite easy in the second test. This outcome of a positive identification after an initial failure occurred in the cases of Engels, Twijnstra, and Rozeynse, but the courts did not indicate concern about these surprising recoveries of memory. The logical rule is, of course, that no witness should ever be asked to identify the same person more than once. If this is accepted, it should also be clear that identifications, since they cannot be repeated, need to be considered very carefully instead of being conducted on a sudden impulse of a low- ranking police officer. Any procedural mistake may invalidate the outcome and may, if there is a scarcity of witnesses, force the police to abort the investigation.

5. Incomplete reporting. Nonreporting of identification attempts occurred in three of ten cases. This number is, surprisingly high and indicates that reporting should not only be encouraged but perhaps made mandatory by a smtutory provision. Incompleteness includes not only missing reports but also the loss of crucial information from available reports: number of foils, names of foils, pictures or descriptions of foils-are all frequently omitted. In some cases it was not even clear whether or not the suspects were in- cluded in a lineup. In case of a negative identification, it may seem rather unimportant whether the suspect was in the lineup or not, but in fact it is crucial: if the witness does not identify a suspect who is present in a


lineup, that constitutes a highly significant observation. IMoreover, it means that a witness cannot be tested again because he or she was confronted with the suspect before. It is almost shameful that a rule enforcing accurate reporting is needed. But, given the apparent need. the compelling question is not whether, but how, the rule is to be enforced. A partial solution could be a requirement that the lawyer of the accused is always present at identification attempts. This still would not solve the problem of unreported mugfile inspections, because these are usually conducted before there is any specific suspect. We must assume that the cause of incomplete reporting is lack of understanding on the part of the police, not some sort of malevolence or dishonesty. Therefore, the best remedy is probably a better education of police investigators or introduction of the provision that identification procedures should always be supervised by high-ranking, specially trained officers. The Devlin Report fomlulated a similar proposal.

6. Contacts arnorrg rvitnessrs. It is quite obvious that identification of the suspect by a large number of witnesses renders the outcome more convincing, provided that the witnesses are independent. Dependence among witnesses occurred demonstrably in eight of ten cases. In the Engels murder case, the witnesses were close friends; in the cases of Twijnstra, Vechter, and Jensen they were colleagues; in the Rozeynse jewel robbery and the Jensen murder case, the primary witnesses were husbands and wives; in the cases against Jackson and Elgar, they were mothers and daughters; in the Lanvood case they were a couple engaged to be married. In all eight cases there was ample opportunity for discussion about the perpetrators. The period between the crime and the identifications, in which the discussions could have occurred, varied from days to several months. The problem of contacts among witnesses is ag- gravated by repeated testing, because initial failures could easily be turned into later suc- cesses through mutual contacts. The cases of Twijnstra, Rozeynse, and Elgar are clear il- lustrations of that effect. The rules that follow from these considerations are that firm

statements about the absence of contacts among witnesses should be presented in court and that identifications should be discarded when witnesses had the opportunity to com- municate information to each other.

7. Prior description. A discrepancy between the prior description of the perpetrator and the suspect’s appearance occurred in five cases. Vechter was younger and smaller than described by the witnesses; Plugge was in- correctly described by Schuurman in every respect; Jackson’s hairstyle and moustache did not fit the description: Larwood did not wear the braces mentioned four times by the key witness; and in the cases of Rozeynse and El- gar the witnesses had first stated that they did not see the faces of their assailants because they were wearing masks. In a few of these cases the police attempted to provide an ex- planation of the lack of agreement, and the discrepancies were not perceived as problematic by the courts.

The problem of selecting appropriate foils on the basis of nonfitting descriptions did not arise in the cases of Rozeynse and Plugge, because the witnesses were tested with one- person lineups. The combination of a nonfitting description and a one-person lineup is di- sastrous since choice from a multiperson lineup is the only protection against chance identifications by witnesses who do not have a clear memory of the perpetrator. The nonfitting descriptions indicate that either the suspect is not the perpetrator or the memory of the witnesses is not reliable. In both cases more precautions are needed instead of fewer. It is difficult to understand why the investigators used one-person lineups when the initial descriptions were unsatisfactory.

In Vechter’s case it was not reported how the foils were selected; however, it is likely that the investigators were not disturbed by the logical dilemma, as they saw no harm in selecting three foils with moustaches even though Vechter was clean-shaven. In the cases of Jackson and Lax-wood also it was not reported how the dilemma was solved. As stated before, the purpose of an identification test is to check whether a witness remembers, be- yond the general features of the perpetrator, the traits of one specific person with enough


detail to exclude the risk of confusion with other people. This objective cannot be achieved when even the prior description does not fit the suspect. The rule emerging from this discussion is that witnesses should always be requested to describe the perpetrator prior to the identification and that any identification of a suspect should be treated with suspicion if the prior description is clearly discrepant with the suspect’s appearance.

8. Znsfructions. In three cases it was clearly established that the instructions with respect to the number of targets in the lineup and the number of responses that could be given were imprecise. However, this number may be an underestimate because such instructions were not needed in three other cases, in which only one-person lineups were used. In the remaining cases it is not known whether witnesses made erroneous identifications before hitting the target. It is also not known whether witnesses were warned that the perpetrator possibly was not in the lineup. In Larwood’s case, the witness was explicitly told that she was looking at the culprit. Instructions to witnesses were never reported. Experimental psychologists are trained to present identical and clearly outlined instructions to their subjects and to describe these instructions in their reports. There are compelling reasons for police investigators to do the same. The instructions should stress that there is only one suspect in the lineup and that the other participants are known to be innocent, so that witnesses can be caught making a mistake; instructions should also state that witnesses are allowed to point at only one participant and that they are to observe the lineup until they are fairly certain, so that later corrections can be avoided. Most important of all, they should be apprised that possibly the perpetrator is not in the lineup.

9. Lineup size. Even when multiperson lineups were used, there were problems with lineup sizes that were effectively too small in three cases. In no case were there more than five foils, which is minimal. In the Engels case the numbers of foils were three and four, and the effective size was further reduced by the selection of implausible foils. In the Ve- chter case there were five foils, but three were

implausible. In the Jackson case there were only four foils in the photo spread. An advisable guideline for lineup size would be that the effective size should be at least six, although ten would be more ideal. In that case the probability of chance identification would still be around ten percent.

10. Foil selecrion. Implausible foils were selected in the cases of Engels, Vechter, Jen- sen, and Elgar. Nothing is known about the foils in the cases of Twijnstra, Plugge, Jack- son, and Larwood. In the other cases there were no foils. Hence, foil selection was flawed in at least four of eight cases. Still, the validity of the rule is apparent. All foils should fit the prior description of the perpetrator. It should not be in any way possible for witnesses to guess who the suspect is or to guess which foils cannot be the suspect from cues that have nothing to do with their memories. The best way to check the fairness of lineups in case of doubt is through the use of mock witnesses, as suggested in Doob and Kir- schenbaum (1973). This procedure was not attempted in any of the ten cases, although there was sufficient reason for doubt in at least four.

11. Suggestion. Improper suggestion by the investigators was noted in six cases. In the mugfiles used in the cases of Engels and Twijnstra the picture of the suspect occurred twice, while all other participants were presented only once. In the cases of Engels, Ve- chter, and Jackson the suspects’ attire at- tracted an unfair amount of attention. In Larwood’s case the suspect’s picture was the only one presented in profile. Suggestion almost turned into undue pressure in the cases of O’Neill and Larwood. Little is known about other sources of suggestion, because there are no precise recordings of what happened. However, it is known from other cases (Wag- enaar, 1988) that all sorts of subtle suggestion is possible-from waiting after a false positive and immediately stopping after a hit to outright telling the witness which participant is the suspect. In practice it is virtually impossible to turn police investigators into trained experimenters. The most obvious precaution is a double-blind procedure, which requires the police officer in charge of the test


not to know who the suspect is. Other precautions include proper training of investigators, presence of a defense lawyer, and timing of the procedure. Moreover, in general it helps to record identification procedures on video or audio tape so that the use of suggestion can be detected later, if it occurred.

12. In-courr identification. It is probable that in-court identification occurred as a formality in all ten cases, and in two it carried the weight of legal proof. All authorities on this topic (cf. Devlin report, 1976; Thomson, 1988) have agreed that in-court identifications should never be accepted as proof of identity.

CONCLUSIONS

One worrisome finding in these cases is that procedural weaknesses appear to occur not only quite frequently, but also in dam- aging combinations. The use of mugfile inspection followed by a one-person confrontation with the person seen in the photograph is a good example. It occurred three times. Another example is incomplete reporting combined with repeated testing, which opens up the possibility of continuing the test until all witnesses identify the suspect. This combination occurred twice.

The major argument of this article is that such risky combinations do occur, that witnesses are influenced by them, that the find- ers of fact have not been sensitive to them, and that experimental psychologists can present reliable testimony about the relevant procedural aspects. The problem has been sufficiently substantiated by the ten cases presented above, even though they do not constitute a representative sample. The influence of erroneous procedures on witnesses also has been sufficiently demonstrated by a vast literature on experimental procedures. Even when the validity of this literature is challenged, the strongest argument against the use of unreliable procedures is still that they dis- rupt the logic of identity testing and therefore leave room for reasonable doubt. Conse- quently, it will not be so easy to question the

validity of expert testimony on these issues as it was in the case of estimator variables discussed by McCloskey and Egeth (1983). The factfinder’s lack of insight into the di- sastrous effects of unreliable procedures has been demonstrated by the ten cases. The investigators were not the only ones who proved to be insensitive to the violations of test logic; the prosecutors and defense lawyers were not much better. In most cases the defense lawyers solicited the present authors’ expertise because they knew that identifications can be challenged, not because they were aware of what exactly was amiss. The courts or juries rejected the improper identifications only in three of ten cases. One of these was rejected only by the Court of Appeal; one other was only temporarily suspended.

In many cases expert testimony on procedural aspects of identification will come too late. Pointing out in court that the procedures were wrong does not really help to find the true culprit in the case of an innocent suspect or to establish convincing proof in the case of a guilty suspect. Even worse, the investigation cannot continue after all witnesses have participated in identification attempts, because identifications cannot be repeated. Identification procedures should be correct from the beginning. Therefore, it is much better to consult experts before the identifications or to impose reliable procedures by statutory law. There may be a prevailing be- lief that the effects of statutory rules or ad- vice from experimental psychologists will always work against the prosecution and will help the guilty suspects get off the hook. But that is not accurate. The use of sound procedures will lead to a more reliable distinction between innocent and guilty suspects. This is to the advantage of the defense when the suspect is not guilty and to the advantage of the prosecution when the suspect is guilty. Thus, it assists the general objectives of justice.

We must admit that our court appearances as expert witnesses have led to a rejection of identifications in only a small proportion of the ten cases. Apparently, once a trial procedure is underway, even when based solely on flimsy identifications, it is very difficult


to alter the course of action and to convince - Miller, D. G.. and Bums. H. .I. (1978). Se-

judges and juries. Hence, although we ad- mantic integration of verbal information into a visual

vacate expert testimony on the procedural as- memory. I E,rper Psxchol Human Learn Mem 4: 19- 31.

pects of identification tests, we prefer the Malpass, R. S. (1981). Effective size and defendant bias

adoption of sound procedures that would make in eyewitness identification lineups. Law and Hum Behav 5:299-309.

such testimony suberfluous in the long run. and Devine, P. G. (1981). Eyewitness identification: Lineup instructions and the absence of the offender. J Appl Psycho1 66:482-92.

McCloskey, M. and Egeth. H. E. (1983). Eyewitness identification: What can a psychologist tell a jury’? rlmcr Psycho1 38:550-63. ACKNOWLEDGEMENTS

Elizabeth F. Loftus was supported by the National Institute of Mental Health.

Rosenthal, R. (1966). Experimenter effects in behav- a grant from ioral research. New York: Appleton-Century-Crofts.

Sanders. G. (1986). On increasing the usefulness of

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CASES SITED

Dnrden Y. Waimuright (1983). 699 F.2d. 1031, 1043 (1 I* Cir.).

Darden v. Wainwright (1986). 106 S Ct. 2464, 2181.

Documents

Ten cases of eyewitness identification: Logical and procedural problems