By: Leo Fitzpatrick
On January 6, 2017, Deputy U.S. Attorney General Sally Yates took an important step towards protecting the innocent from wrongful convictions.[1] Her announcement was overshadowed by the previous day’s headline: the first law review article published by a sitting president.[2] Yates issued a Department-wide memorandum with recommendations to improve eyewitness identifications using a photo array.[3] The guidance, while not mandatory, encompasses all federal law enforcement agencies, which includes the FBI, DEA, Bureau of Alcohol, Tobacco, Firearms, and Explosives, the U.S. Marshals Service, and the Department’s prosecutorial component.[4]
Specifically, the memorandum recommends the use of blind or blinded administration, ways to compose the photo arrays, an instruction to the witness that the suspect might not be in the array, documenting the witnesses’ confidence in their identification, and video recording identifications.[5] A blind administration of a photo array means a law enforcement officer presenting the array does not know the suspect’s identity to prevent intentional or unintentional influence.[6] All these procedures are shown to empirically increase the reliability of identifications.[7] Eyewitness misidentifications are the foremost cause of wrongful convictions.[8] President Obama’s Task Force on 21st Century Policing pushed for the adoption of these procedures, which in turn came from a 2014 National Academy of Sciences (NAS) report on eyewitness identifications.[9] The NAS report identified best practices based on a survey of the current state of psychological and cognitive research in memory.[10]
While this move towards voluntary reform and science-based policing should be applauded, and encouraged, the long path to reform need to come from outside of the courts. For instance, in 1973, the Supreme Court addressed whether the Sixth Amendment included a right to counsel during a photo array identification and held that it did not.[11] The Court found the use of a photo array did not come at a “critical” stage in the proceedings and did not require counsel as would be for “corporeal” or live lineups.[12] Justice Brennan, writing for the dissent, argued this argument chooses form over substance as the same dangers for misidentification or improper suggestion existed for photo arrays.[13] Then in 1977, the Court upheld an identification under the Due Process Clause even where an improper suggestion by the administering officer was not under dispute.[14] The test for determining the fairness and reliability of an identification is under the totality of circumstances of several factors which have remained unchanged even after decades of new psychological research.[15] Since, the Court provided scant guidance and reconsideration in an ever-changing field of research.[16]
The Yates’ memorandum could mark the critical mass in the acceleration of nationwide adoption of these reforms. Nineteen states and several municipalities have voluntarily adopted reforms, up from seven four years ago.[17] But normalizing these practices still has a long way to go.[18] Not long ago, police departments actively resisted these recommendations.[19] Further, significant structural and cognitive obstacles remain in law enforcement culture.[20]
Writing in his law review article, President Obama recognized the limits within which a president can engage in wholesale criminal justice reform.[21].To work around these limits, particularly in respect to state and local practices, he outlines a strategy based on promulgating and championing best practices, and securing buying from the law enforcement community.[22] The January 6 memorandum appears to be one final measure based on this strategy and delivered without much fanfare.
[1] See Press Release, U.S. Dep’t of Justice, Justice Department Announces Department-Wide Procedures for Eyewitness Identification (Jan. 6, 2017), https://www.justice.gov/opa/pr/justice-department-announces-department-wide-procedures-eyewitness-identification
[2] See Katie Mettler, Wash. Post (January 6, 2016), https://www.washingtonpost.com/news/morning-mix/wp/2017/01/06/how-some-students-got-obama-to-write-for-the-harvard-law-review/; see also Barack Obama, The President’s Role in Advancing Criminal Justice Reform, 130 Harv. L. Rev. 811 (2017).
[3] See Memorandum from Sally Q. Yates, Deputy Att’y Gen., U.S. Dep’t of Justice, on Eyewitness Identification: Procedures for Conducting Photo Arrays (Jan. 6, 2017), https://www.justice.gov/opa/press-release/file/923201/download.
[4] See Press Release, U.S. Dep’t of Justice, supra note 1.
[5] See Memorandum from Sally Q. Yates, supra note 3.
[6] See Press Release, Innocence Project, Innocence Project Commends Critical Step to Prevent Wrongful Convictions and Ensure the Capture of Real Perpetrators of Crimes, https://www.innocenceproject.org/doj-recommends-law-enforcement-follow-eye-id-best-practices/.
[7] See Memorandum from Sally Q. Yates, supra note 3.
[8] See Press Release, Innocence Project, supra note 6.
[9] See President’s Task Force On 21st Century Policing, Final Report Of The President’s Task Force On 21st Century Policing 23, 69 (2015), https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf; Nat’l Research Council of the Nat’l Acads., Identifying The Culprit: Assessing Eyewitness Identification, 103-19 (Apr. 2015), https://www.nap.edu/openbook.php?record-id=18891.
[10] See id. at 45-70.
[11] See United States v. Ash, 413 U.S. 300, 324-25 (1973).
[12] Id.
[13] Id. at 332-33 (Brennan, J., dissenting).
[14] See Manson v. Brathwaite, 432 U.S. 98, 113–114 (1977).
[15] See id. at 110; Nat’l Research Council of the Nat’l Acads., supra note 9, at 31.
[16] See Nat’l Research Council of the Nat’l Acads., supra note 9, at 31.
[17] See Press Release, Innocence Project, supra note 6.
[18] See Police Exec. Research Forum, A Nat’l Survey of Eyewitness Identification Procedures in Law Enf’t Agencies, 47 (June 2014), https://www.ncjrs.gov/pdffiles1/nij/grants/242617.pdf (finding 77.1% of law enforcement agencies surveyed in 2013 did not have a written policy with important eyewitness identification reforms).
[19] See e.g., Jack Leonard & Joel Rubin, LAPD reluctant to change its handling of photo lineups, L.A.Times (August 24, 2012), https://articles.latimes.com/2012/aug/24/local/la-me-identification-20120825.
[20] See David A. Harris, Failed Evidence: Why Law Enforcement Resists Science 78, 99 (2012) (identifying sources of resistance from cognitive dissonance, group polarization, loss aversion and status quo bias).
[21] See Obama, supra note 2, at 840-41.
[22] Id. at 838-39.