Crime Reporting Case Study: Mistaken Identities
A project of the Center on Media, Crime & Justice
and Criminal Justice Journalists
Debora Halpern Wenger
University of Mississippi
John Jay College of Criminal Justice
Virginia Commonwealth University
Presented at the 4th Annual Guggenheim Symposium on Crime in America
February 2-3, 2009
“Eyewitness testimony is the crack cocaine of the criminal justice system.”
-Steve McGonigle and Jennifer Emily
“Mistaken Identities” – The Dallas Morning News
Reporters Steve McGonigle and Jennifer Emily of the Dallas Morning News spent eight months in 2008 investigating local law enforcement’s apparent addiction to the use and misuse of eyewitnesses in prosecuting criminal suspects.
The Dallas market was particularly fertile ground for the story.According to the Innocence Project, a non-profit group dedicated to exonerating wrongfully convicted people, analysis of DNA evidence from old crimes has resulted in 227 exonerations of convicts nationwide.Dallas County has led the country in DNA exonerations since 2001.Of the 19 exonerations studied by McGonigle and Emily, all but one of the cases was built on eyewitness accounts.But McGonigle and Emily pushed themselves to go beyond the typical DNA exoneration story.
“We wanted to know to what we could apply to cases being tried today,” McGonigle said. “Otherwise we’re on an archeological dig, and we didn’t want the current [justice system authorities] to be off the hook.They really hadn’t changed anything in the system, so we had to show these sorts of flaws existed today.”
What they found was “a criminal justice system that ignored safeguards to protect the innocent.”The reporters convinced the Dallas county district attorney, Craig Watkins, to open up never before seen prosecution files, and what they found was an overwhelmingly common use of photo lineups – lineups police showed to witnesses in the hopes they would identify a suspect.
Despite the fact that it takes real expertise to conduct lineups properly, the reporters’ investigation also found that “most [Dallas-area] police agencies do not have written policies on identification techniques and police officers receive little formal training” in how to conduct them.The agencies seldom, if ever, used the sequential blind method recommended by social scientists, in which the photos are shown one at a time, instead of all at once, by an officer not involved in the case.
Even more interesting to McGonigle was police reliance on what’s called a “showup.”The second part of the paper’s three part series focused on this form of eyewitness identification.Part two opened with the following powerful paragraphs:
“Billy Wayne Miller was asleep in a back bedroom of his father’s modest Oak Cliff home when three Dallas police officers burst through the front door around 3 a.m., guns in hand, yelling another man’s name.
Still groggy and clad only in his underwear, Mr. Miller was taken to the front porch. There he spotted a woman in a squad car glance at him and nod to an officer seated beside her before the car drove away.
That split-second, one-man lineup cost Mr. Miller 22 years of his life on a rape conviction that DNA evidence later invalidated.”
McGonigle and Emily began looking for more cases involving showups.In the end, they both reviewed more than 20 years worth of state appellate court opinions.”The more I looked, the more I saw,” said McGonigle.”We documented over one hundred, but we found the cops always minimize their use; showups are really below the radar screen.”
Showups are also called “drive-by” identification because witnesses are often driven in a squad car past a suspect.Critics say that witnesses can be eager to please the police or may believe that the police already have a good reason to suspect the person being shown to them.As in the case of the photo lineups, officers routinely conduct them without benefit of training or departmental policies to follow.
Showups continue despite the fact that they have long been considered problematic.A U.S. Justice Department publication recommended limits on their use, the U.S, Supreme Court deemed them “dangerously suggestive” more than 40 years ago and showups were cited as a critical flaw in at least 20 percent of DNA exonerations across the country, according to the Innocence Project Web site.
Robberies and wrongful convictions
Though exoneration stories are certainly dramatic, Emily and McGonigle set out to show that eyewitness testimony plays an even greater role in cases where there is no DNA available.In part three of the series, the two looked at robbery trials in Dallas County from 2006 and 2007.They found that “law enforcement still relies heavily on eyewitness testimony, even if corroborating evidence is weak and despite decades of research showing its shortcomings.”
So why do prosecutors and police continue to rely so heavily on eyewitness testimony?Emily says there’s one very important reason – eyewitness testimony works.”You have a victim up there who says, ‘That’s the man who raped me; I’ll never forget him,’ and jurors are going to believe it,” said Emily.She quickly adds that in many instances, eyewitness testimony may very well be reliable, but it has also been proved to be spectacularly wrong, as in the case of the DNA exonerations.”The people who want reforms don’t want to do away with eyewitness testimony; they just want to make it better.”
The Dallas Morning News series has had a significant impact. In the weeks before the series ran, McGonigle and Emily went to the district attorney to show him what they had found, and his office began doing a review of all its death penalty cases. “The D.A. is planning to train prosecutors in how to better analyze the quality of and to deal more effectively with eyewitness testimony,” said McGonigle.
Immediately following the series publication, the Dallas police started making changes.”The department did a review to find out how many officers were using showups; they found more than they thought they would,” Emily said.”They found that half were unnecessary, and they’re now in the process of changing their policies and training officers in how to properly handle them.”The chief of police also provided reprints of the series for all his officers, and in January of 2009, the department adopted the sequential blind method for photo lineups.
In addition, Texas state senator Rodney Ellis has called for a ban on the use of showups, and he is sponsoring legislation to put more restrictions on the way in which eyewitness testimony is handled statewide.
How they did it
Tackling this project involved a major time and resource commitment from the Dallas Morning News. McGonigle is on the paper’s project staff, but Emily is the county courthouse reporter, so the paper had someone take over her beat during the eight-month investigation.
Both reporters felt that having a partner was essential to the project’s success.”We had thousands of records we had to look at, so it was good to have two sets of eyes, someone else who can help you remember the details and someone to bounce ideas off of,” Emily said.
The two relied heavily on open records for the series – trial transcripts from appellate courts and police reports, as well as standard research tools such as Lexis-Nexis.Though the police don’t track showups specifically, McGonigle and Emily tediously compiled a list of cases involving showups to look at what they revealed.
The reporting team also relied on outside experts from the Innocence Project and the Justice Project, non-profit groups that pursue alleged wrongful convictions, as well as academics who study eyewitness testimony, including psychologist Gary Wells of Iowa State.
Emily and McGonigle met with their editors about once a week throughout the project.As the story progressed, they began to talk about the shape it would take both in print and online.
“As we got our arms around the story, we started talking about a way to draw people in.” McGonigle said.They decided that video of those who had been wrongfully convicted talking about their experiences would be a compelling online component.”It’s different hearing people talk.The printed word does not have the impact of watching someone say, ‘They took my life away from me.'”
When the reporting was complete, the project included seven stories, which ran over three days, an online chat with the reporters and online profiles of the 19 people wrongfully convicted and exonerated through DNA testing.
Maud Beelman is a deputy managing editor for the paper.She says the management staff continues to be committed to this type of investigative reporting.
“I like to call it creating new realities.You become so immersed in a topic, you become an expert on the information to a point where you know more about the subject matter than actually the people who are involved in it,” Beelman said.”In this case we ended up knowing more about police practices than the police department; we knew more about how the prosecutor’s office conducts cases than the current district attorney.”
More stories to do
Both McGonigle and Emily say this subject and others like it can and should be pursued by reporters in other markets – even those with fewer resources and less time.They shared some suggested topics and ideas on how to go after them.
Law Enforcement Policies
Emily suggests asking all the police departments in your coverage area to share their policies on how they obtain eyewitness testimony.Unless your market is highly unusual, just a small percentage will have any policy at all.
“Another thing to look at is the district or state’s attorney’s office:How are prosecutors trained regarding the acceptance of eyewitness testimony, what questions are they asking, do they know how this person ended up in a line up?” said Emily.
If you want to see how your state stacks up when it comes to wrongful convictions, Emily suggests starting with the Innocence Project, either at the national level or in one of the many states that have their own.One word of caution: the Innocence Project tracks DNA exonerations only, and some states don’t preserve DNA evidence in the aftermath of a conviction.You can often find non-DNA exonerations in your area by searching with Lexis-Nexis or a newspaper library.
In the case of a wrongful conviction, McGonigle says no one ever really gets called to task.”The prosecutors have the ability to say this ain’t enough to go to trial, yet they don’t pay any price when they’ve corrupted the system,” McGonigle said.
“This keeps me up at night worrying about it.All of these DNA exonerations depend on the quality of the lab work.If the labs are bad, the DNA results are not worth anything, and there are many notable problems with crime labs not doing the tests correctly,” McGonigle said.
Emily says another issue is the question of when DNA testing is used and when it is not.In many of the cases they reviewed, the prosecutor denied DNA testing for the defendant.
McGonigle says the justice system is like a balloon, and stories like the one he and Emily reported can apply pressure that changes the system, but only temporarily.”The problem is, unless you keep pushing, the balloon goes back to the same shape,” said McGonigle.
Crime Reporting Case Study: Mistaken Identity
Video content may be found at the following URL: http://www.youtube.com/user/CrimeCaseStudies
Eyewitness Testimony: Expert Sources
Gary L. Wells – Distinguished Professor, Psychology
Iowa State University
Gary L. Wells is an internationally recognized scholar in scientific psychology and his studies of eyewitness memory are widely known and cited. Wells has authored over 170 articles and chapters and two books. Most of this work has been focused on the reliability of eyewitness identification. His research on eyewitness identification is funded by the National Science Foundation and his findings have been incorporated into standard textbooks in psychology and law. His research-based proposals on lineup procedures, such as the use of double-blind techniques, are being increasingly accepted in law enforcement practices across the U.S.
Jennifer Dysart – Associate Professor, Psychology
John Jay College of Criminal Justice
Jennifer Dysart conducts research on eyewitness accuracy, the use of show-ups and mug shot searching on identification accuracy, false confessions, interrogator suggestibility, double-blind administration, and cross-race identification. Her research focuses on how specific eyewitness identification procedures can lead to an increased rate of false identification of innocent suspects and safeguards that may be implemented to reduce identification errors. Dysart has published in peer-reviewed journals in the field and has written several book chapters on eyewitness identification accuracy. As an experimental forensic psychologist, Dysart also consults on criminal cases and gives lectures to law enforcement and public defenders.
Liz Webster – Publications Manager
Webster educates the public about wrongful convictions and the Innocence Project’s work through print materials. She also organizes and secures speaking engagements nationwide and manages the exoneree speaker’s bureau.
Eyewitness Testimony: Resource List
Published studies and articles:
Charman, S. D., & Wells, G. L. (2008). Can eyewitnesses correct for external influences on their lineup identifications? The actual/counterfactual assessment paradigm. Journal of Experimental Psychology: Applied, 14, No. 1, 5-20.
Dysart, J. E., Lindsay, R. C. L., & Dupuis, P. R. (2006). Show-ups: The critical issue of clothing bias. Applied Cognitive Psychology, 20, 1009-1023.
Dysart, J. E., Lindsay, R. C. L., MacDonald, T. K., & Wicke, C. (2002). The intoxicated witness: Effects of alcohol on identification accuracy. Journal of Applied Psychology, 87, 170-175.
Garrett, B. L., Judging Innocence, 108 Columbia Law Review, 55 (2008).
Kassin, S.M., Tubb, V.A., Hosch, H.M.& Memon, A. (2001). On the “general acceptance” of eyewitness testimony research. American Psychologist, 5, 405-416
Semmler, C., Brewer, N., & Wells, G. L. (2004). Effects of postidentification feedback on eyewitness identification and nonidentification. Journal of Applied Psychology, 89,334-346.
Wells, Memon & Penrod (2006). Eyewitness evidence: Improving its probative value. Psychological Science in the Public Interest, 7, 54-75
National Institute of Justice Reports
Eyewitness Evidence: A Trainer’s Manual for Law Enforcement (2003)
Postconviction DNA Testing: Recommendations for Handling Requests (1999)
Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to
Establish Innocence After Trial (1996)
State-by-State Innocence Projects
Center on Wrongful Convictions
Death Penalty Information Center
Eyewitness Testimony: Resource List (continued)
The Justice Project
Justice Denied magazine
Truth In Justice
Wrongful Conviction and Innocence Resources
Eyewitness Testimony: Previous Reporting