In cop shows and movies, lineups are always done in person. The live lineup usually involves several guys standing against a wall and a frightened witness peering through a one-way mirror at the suspects. In the classic movie The Usual Suspects, five very different-looking men are placed in a lineup. They are required to step forward and read a statement that was uttered during a robbery. Each suspect takes his turn mocking the procedure by interpreting the statement in a unique and sometimes hilarious manner. It turns out that the lineup is a ruse. These five men are all career criminals and police would never put them all in the same lineup. The real point of the arrest is to put the men in a cell together and see if they will turn on each other.
In real life, lineups are much less theatrical. Live lineups rarely happen, and police would never put five actual suspects in the same lineup. While there is less theater surrounding lineups in the real world, there is a great deal of controversy on how exactly lineups should be administered. The controversy between simultaneous and sequential photo lineup procedures is back in the spotlight, thanks to a new study published by the National Academy of Sciences.
How we got here
In 2011, the Texas Legislature ordered the Law Enforcement Management Institute of Texas (LEMIT) to produce a model policy for eyewitness identification procedures. At the time, only about 12 percent of Texas law enforcement agencies had written policies related to photo lineup presentation.1 Clearly, such written policies were needed. Most of the changes LEMIT recommended were non-controversial, but one suggestion was a departure from common practice in many jurisdictions.
The big change LEMIT made was the preference for sequential photo lineup presentation in which photos are shown to a witness one after another (as opposed to the more common simultaneous presentation of multiple pictures in one lineup, as in a live lineup). The change to sequential photo lineup procedures was the result of years of advocacy by criminal justice reform groups and was based in part upon studies conducted in the 1990s and early 2000s. These early studies indicated that sequential photo lineup procedures were superior at reducing the number of false identifications compared to the traditional photo array. Criminal justice advocacy groups, such as the Innocence Project, used these studies to push for policies favoring sequential presentation across the country. After all, three-quarters of all DNA exoneration cases nationally were the result of errors in eyewitness identification.2
In the mid-2000s, the scientific literature started to question the superiority of sequential lineups. A 2006 review of the early studies supporting sequential lineup presentation determined that nearly half were unpublished experiments, many of which consisted of undergraduate student projects with unknown methodologies.3 However, momentum was clearly in favor of sequential lineups. By around 2011, several large jurisdictions across the state of Texas had switched to sequential lineups. This momentum shift, pushed by criminal justice advocacy groups, ultimately resulted in LEMIT favoring sequential lineup presentation in its model policy.
As a result of LEMIT’s model policy advocating for sequential photo lineups, many law enforcement agencies across the state have adopted sequential photo lineup procedures. In my district, all six law enforcement agencies have moved from simultaneous procedures to sequential identification procedures.
Those jurisdictions that have not moved to the sequential procedure have been held up for ridicule by the media. The Houston Chronicle newspaper ran three articles in a row in January 2013 excoriating the Houston Police Department and the Harris County Sheriff’s Office for not adopting the sequential procedure. The articles had titles like, “Area Police Are Ignoring Science on Eyewitnesses” and “HPD, Sheriff Using Questioned Photo Lineups.” With headlines like that you don’t need to read the articles to know that they were highly critical of Harris County law enforcement. The tenor of the articles suggested that law enforcement didn’t want to change their procedures because they were unconcerned about wrongfully convicting innocent people.
“Identifying the Culprit”
It turns out that all of this outrage may well be misplaced. Because of the interest surrounding the issue of eyewitness identification, the Na-tional Academy of Sciences (NAS) put together a special committee to review the literature and to make recommendations regarding best practices. The committee was tasked with determining if the data favored the move to sequential lineups or if caution was needed before shifting away from simultaneous lineups.
The committee met several times and heard testimony from numerous experts. In October 2014, the committee released its report, “Identifying the Culprit.” In its report, the NAS notes that the relative superiority of simultaneous versus sequential lineups is unresolved. It also noted that care and caution should be used when considering changes to existing lineup procedures. (It may be a little too late on that front!) The NAS report even cites studies that support the superiority of simultaneous photo lineups. One of them, by Amendola and Wixted, determined that the identification of innocent suspects is less likely and identification of guilty suspects is more likely when using the simultaneous procedure.4 This finding is also supported by Dr. Heather Rowe of the University of Leicester, who has done extensive research on eyewitness identification. Dr. Rowe’s team has carried out hundreds of staged lineups to determine which method is more accurate. According to her research, sequential photo lineups should no longer be recommended.5 These conclusions were also reached by Roy Malpass, longtime professor of criminal justice at the University of Texas at El Paso and head of the Eyewitness Identification Research Laboratory.6 Malpass recommends abandonment of the preference for sequential lineups and a return to simultaneous presentation of suspects.
As you can see, even the experts differ on the best way to present lineups to a victim-witness. But there are several basics upon which proponents of both kinds of lineups can agree: Easy written instructions should be given to witnesses, the lineup should be presented by an officer who doesn’t know the suspect (known as a “blind” administrator), the witness should be told that the suspect may or may not be in the lineup, an audio or video recording of the presentation is preferable if possible, and the witness should provide a “level of confidence” statement at the time of the identification.
As prosecutors, we should keep a close eye on the developments in this field. Considering the studies that have already been released, it may be time for us to start a conversation with LEMIT and our local law enforcement about switching back to simultaneous lineups.
1 www.shsu.edu/~pin_www/[email protected]/2011/eyewitness.html.
3 www.policechiefmagazine.org/magazine/ index.cfm?fuseaction=display_arch&article_id=2976&issue_id=72013.
4 Amendola, Karen L. and Wixted, John, “Comparing the diagnostic accuracy of suspect identifications made by actual eyewitnesses from simultaneous and sequential lineups in a randomized field trial,” Journal of Experimental Criminology, October 2014, abstract online at www.researchgate.net/ journal/1573-3750_Journal_of_Experimental _Criminology.
5 www.criminallawandjustice.co.uk/comment/ Reforming-Eyewitness-Identification-Evidence.
6 http://sites.nationalacademies.org/cs/groups/ pgasite/documents/webpage/pga_152152.pdf.