LINCOLN — Nebraska law enforcement representatives launched a voluntary effort a year ago to ensure that the power of the eyewitness isn’t used to falsely accuse someone of a crime.
As a result, about 60 percent of the state’s 233 law enforcement agencies have adopted model policies on the use of photo lineups to identify criminal suspects, according to the Nebraska Attorney General’s Office.
Now a state senator from Lincoln thinks the rest of the agencies should get on board.
Sen. Patty Pansing Brooks said she will introduce legislation in coming days that would require all Nebraska law enforcement agencies to use photo lineup procedures that research shows can minimize the chances of a wrongful conviction.
The procedures are based on model standards endorsed by Nebraska associations representing police chiefs, prosecutors and city governments.
The bill will try to do more than shield the falsely accused, Pansing Brooks said, noting that misidentifying suspects can leave true perpetrators free to commit more crimes.
“We can talk about protecting the innocent, and we can talk about public safety,” she said.
But one of the participants in the effort said agencies should be given more time to adopt the policies on their own. Darrell Fisher, executive director of the Nebraska Crime Commission, said most department leaders already consider it “the right thing to do.”
“I think it would be a shame for the Legislature to get involved and tell law enforcement agencies what to do,” Fisher said.
Thirteen states mandate the use of lineup policies by all departments, according to the Innocence Project, a national group that works to free the wrongly convicted. Colorado is the only state bordering Nebraska with such a requirement on the statute books.
The Nebraska State Patrol, Lincoln Police Department and Lancaster County Sheriff’s Office have adopted the lineup policies. The Omaha Police Department and Douglas County Sheriff’s Office were the two largest departments that did not appear on a list of complying agencies that was released by the Innocence Project.
Officer Michael Pecha, a spokesman for OPD, said the department follows a different set of “best practices” established by the Commission on Accreditation for Law Enforcement Agencies Inc. Under the policy — updated by OPD in 2010 — photo lineups are administered by detectives trained on how to properly run the tests.
While the national commission’s standards are commendable, said Nick Moroni, an Innocence Project spokesman in New York, they are unclear on some aspects of eyewitness identification that stem from the latest research.
Douglas County Sheriff Tim Dunning said, however, that he sees no need for his department to add a new policy because his investigators don’t rely on photo lineups to make an arrest. Recognizing that eyewitnesses can be fallible, sheriff’s investigators build cases with forensics and other “hard evidence,” Dunning said.
After making an arrest, investigators sometimes present photo lineups to witnesses. And they note in their reports whether the witness is unable to pick out the suspect identified by law enforcement, Dunning said.
“It’s a stronger arrest if you use hard evidence,” he said. “We strictly use (photo lineups) as a verifier. Even if they don’t pick (the suspect) out at the end, we still have the hard evidence.”
If the Legislature makes departments follow certain lineup procedures, Dunning said the Douglas County Sheriff’s Office would most likely quit using lineups altogether.
The Innocence Project says eyewitness misidentification was a leading factor in 71 percent of the 336 cases in which post-conviction DNA testing led to an exoneration. After reopening those cases, authorities identified 96 actual perpetrators who were later convicted of additional violent crimes, including 17 murders and 64 rapes.
None of the DNA cases identified by the Innocence Project were from Nebraska.
In 2014, the National Academy of Sciences issued a report that cited research documenting the “malleable nature” of human perception and memory. The report authors also noted that many police agencies across the country are trying improve the accuracy of eyewitness identification.
“These efforts, however, have not been uniform and often fall short as a result of insufficient training, the absence of standard operating procedures, and the continuing presence of actions and statements at the crime scene and elsewhere that may intentionally or unintentionally influence eyewitness’ identifications,” the report stated.
The National Academy report recommended that departments institute a few methods to help weed out the mistakes that could taint suspect identification. Among the recommendations:
» The officer conducting the lineup should not know the suspect’s identity. That eliminates risk of the officer giving suggestions or unintentional cues to the witness. In small departments, the photos should be put in folders and shuffled so the officer doesn’t know the faces being observed by the witnesses.
» Instruct the witness that the suspect’s photo may or may not be in the lineup to make it clear that the witness does not have to make a selection.
» Include photos of “fillers” that generally match the description of the suspect so the suspect doesn’t stand out.
» Immediately after identifying a suspect, witnesses should describe their level of confidence in the selection of a suspect.
Based upon the recommendations, the League of Nebraska Municipalities developed a model eyewitness identification policy for Nebraska agencies to use. The Crime Commission, the Police Chiefs Association of Nebraska, the Nebraska Sheriffs’ Association and the Police Officers’ Association of Nebraska all agreed to support agency adoption of the policy.
In May, the Nebraska Law Enforcement Training Center hosted eyewitness identification training in Grand Island and Omaha.
“We understand that a significant majority of Nebraska’s 233 law enforcement agencies already would be considered to have a ‘compliant’ written policy on suspect identification,” said Suzanne Gage, spokeswoman for Attorney General Doug Peterson.
Leah Georges, an assistant professor in the interdisciplinary studies department at Creighton University, serves as a board member for the Nebraska Innocence Project, and she has attended training sessions. She said the science supporting the use of best practices is “so strong” that the law enforcement professionals she has met with are generally supportive of their use.
“I’m grateful to see it is being put into practice,” she said. “As researchers, that’s what we want to see, real change because of good science.”
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