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Unreliable Eyewitness IDs Need A Makeover


March 22, 2012|By DAVID R. CAMERON, The Hartford Courant

Eyewitness identifications are often regarded as the best possible evidence, short of DNA, to persuade jurors to convict a person charged with a crime. But as persuasive as they may be to jurors, researchers know eyewitness identifications are notoriously unreliable. Two events on March 16 underscored that fact.

At a symposium organized at the Legislative Office Building by the state's Eyewitness Identification Task Force, Jennifer Thompson, the co-author of "Picking Cotton," told her compelling story about how she misidentified the man who raped her in the early morning hours of July 29, 1984, in Burlington, N.C., and caused him to be wrongfully convicted and sentenced to life in prison.

She said she tried to remember everything she could about her attacker, from the shape of his face to his thin mustache to his clothes, anything that would help police catch him, if she survived.

The police prepared a composite sketch based on her description and two days later got a tip that it looked like a man named Ronald Cotton. She was shown a photo array that included an old mug shot of Cotton. After studying the array, she identified him and he was arrested. A week later she picked him out of a lineup that included six other men. Though there was no forensic evidence — no hairs, no evidence of blood type — that linked him to the crime, he was convicted and sentenced to life.

In 1995, a vaginal swab and the clothing she was wearing that night were tested for the first time for DNA. There was DNA, but it came not from Cotton but from another man who had raped six women after Jennifer and had been arrested a year later. After 11 years in prison, Cotton's conviction was vacated and he was exonerated.

In retrospect, Cotton's misidentification resulted from factors that researchers now know affect the reliability of identifications. The attack took place at night in the darkness of the bedroom, the eyewitness was the victim, the attacker had a weapon, and it was a cross-racial identification.

In addition, the detectives who conducted the lineup knew Cotton was the suspect. Jennifer studied both the photo array and the lineup for several minutes before making a decision and received strong positive feedback after making the identification. Each of those aspects of the procedure is known to lessen the reliability of an identification.

The task force, headed by retired Supreme Court Justice David M. Borden, has proposed legislation that would mandate that photos of the suspect and the innocent "fillers" are viewed sequentially rather than simultaneously. That would reduce the propensity to compare the photos and make a "relative judgment" that one of individuals looks more like the person who committed the crime than the others rather than an "absolute judgment" that a particular individual in fact committed the crime.

The task force has also proposed that all identifications be administered by a "double blind" procedure — by someone who doesn't know the identity of the suspect — whenever practicable and, when not, by a procedure that ensures that the administrator doesn't know the order of the photos being shown and doesn't know which photo is of the suspect.

By a truly extraordinary coincidence, just as the symposium was breaking up, the news spread that another likely wrongful conviction had just come to light in Connecticut, one that, like Cotton's, was based on an eyewitness misidentification.

Judge Julia Dewey vacated the conviction of Hubert Thompson (no relation to Jennifer) for sexual assault and granted his petition for a new trial. Thompson was convicted in October 1998 after the victim identified him from a photo array as the drug dealer who raped her late one night on South Marshall Street in Hartford in 1994.

Earlier this month, the state forensic lab reported that DNA found in the victim's underwear did not come from Thompson or the victim's boyfriend but from an individual who lived in the neighborhood and whose DNA profile is in the state's database.

Another wrongful conviction based on an eyewitness misidentification. Chances are, it's not the last one.

David R. Cameron is a professor of political science at Yale University and a member of the state's Eyewitness Identification Task Force.





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