Improving Eyewitness Identifications: Hennepin County's Blind Sequential Lineup Pilot Project

• Author: Klobuchar/Steblay/Caligiurim
• Pages: 381-414

Page 381

Amy Klobuchar is currently serving her second four-year term as Hennepin County Attorney. She is a past president of the Minnesota County Attorneys Association. In recognition of Klobuchar's initiatives as County Attorney, the U.S. Department of Justice has twice honored her office as a national leadership site. Prior to her election as County Attorney in 1998, Klobuchar was a partner with the Minneapolis law firms of Gray Plant Mooty and Dorsey & Whitney. She is a graduate of Yale University and the University of Chicago Law School.

Nancy Steblay is Professor of Psychology at Augsburg College in Minneapolis. She received her B.A. from Bemidji State University, her M.A. from the University of Montana and her Ph.D. from the University of Montana.

Hilary Lindell Caligiuri is an Assistant Hennepin County Attorney. She is a felony prosecutor and acts as the office's legislative coordinator. She was previously a Deputy Attorney General and head of the Criminal Division of the Minnesota Attorney General's Office. She is a graduate of the University of Wisconsin-Madison and the University of Minnesota Law School.

I Introduction

On^* a summer night in 1984, 22-year-old college student Jennifer Thompson Cannino was raped at knifepoint by a man who had broken into her North Carolina apartment.¹ The police were able to create a composite sketch of the perpetrator from Cannino's detailed description.²At a photo lineup, she identified the police suspect, Ronald Cotton, as her rapist.³One week later, she also picked Cotton out of a live lineup.⁴She later remarked, "I knew this was the man. I was completely confident."⁵Cannino testified against Cotton in court and he was convicted.⁶She called it "the happiest day of my life because IPage 382 could begin to put it all behind me."⁷An appellate court overturned Cotton's original conviction for reasons unrelated to Cannino's identification.⁸In a second trial in 1987, Cotton was convicted again and sentenced to life in prison.⁹

In 1995, eleven years after the rape, Cannino learned she had been mistaken.¹⁰The man who raped her was not Ronald Cotton, but Bobby Poole.¹¹Poole was already serving life in prison for a string of rapes, and had bragged to other inmates about committing the rape for which Cotton had been imprisoned.¹²DNA testing verified that Poole had raped Cannino, and he pleaded guilty to the crime.¹³Cotton was freed after having spent eleven years in prison.¹⁴After Cotton's release, he and Cannino became friends.¹⁵Although Cotton has been able to move ahead with his life, Cannino wrote, "I live with constant anguish that my profound mistake cost him so dearly."¹⁶As a result of the experience, Cannino became a prominent advocate for criminal justice reforms, including changes in eyewitness identification procedures that reduce the potential for misidentifications.¹⁷

There have been few problems with mistaken eyewitness identifications in Minnesota. There is increasing concern, however, about the number of wrongful convictions in other parts of the country. When an innocent person is convicted of a crime, not only is there a grave miscarriage of justice, but the actual criminal remains free and able to commit other crimes. This troubling reality raises serious public safety concerns and erodes public confidence in the justice system.

Fortunately, there is a persuasive body of research concerning new methods to secure eyewitness identifications from photographic lineups.¹⁸This research shows that relatively simple changes in lineup pro-Page 383cedures can lead to stronger eyewitness identifications, making it more likely that the right person is held responsible for the crime.¹⁹Accordingly, in the interests of justice, the Hennepin County Attorney's Office spearheaded an initiative to improve traditional lineup procedures. In the fall of 2003, the office worked with several police departments to adopt a new photographic lineup protocol consistent with recent scientific evidence on procedures designed to minimize the risk of misiden-tifications. The county attorney's office developed a year-long pilot program to examine recommended eyewitness procedures in real police field investigations. The results of this project, detailed below, represent the first available field data on blind sequential lineup performance.

The participating police departments were all from Hennepin County, which includes Minneapolis and several dozen suburban communities, with a total population of over 1.1 million.²⁰The Chiefs of Police from Minneapolis (approximate population 380,000) and three suburban communities-two larger (Bloomington, approximate population 86,000, and Minnetonka, approximate population 52,000), and one smaller (New Hope, approximate population 21,000)²¹-signed on to conduct the pilot project. Professor Nancy Steblay, an eyewitness scientist at Augsburg College in Minneapolis, was selected to analyze the results of the pilot project.

The Hennepin County Attorney's Office implemented the project with two primary research questions. The first was whether the number and quality of identifications would change with the blind sequential lineup procedure. Second, the office sought to determine whether police departments could smoothly and effectively implement the procedure. Analysis of the data and anecdotal responses from the participating police agencies led to the conclusion that the new protocol is both efficient to implement and effective in reducing the potential for misidentifications.

II Legal Rationale and Review

Eyewitness identification may be the oldest way of solving a case. As long as there have been eyewitness identifications, however, there has existed the risk of misidentifications. In the late 1960s, the UnitedPage 384 States Supreme Court began creating safeguards to protect criminal defendants from wrongful convictions, including those that could result from misidentifications. In United States v. Wade,²²the Court held that the Sixth Amendment right to counsel applies to critical stages of pretrial proceedings,²³which include a physical lineup procedure.²⁴The Court recognized the "vagaries of eyewitness identification," and the "innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial."²⁵Having a defense attorney attend a physical lineup would be beneficial,²⁶since witnesses, lineup participants, and lineup administrators would be unlikely to identify bias in traditional lineup procedures.²⁷Not only might the presence of defense counsel deter prejudice at the lineup,²⁸but counsel also would be able to reconstruct an unfair lineup at trial.

The same day as the Wade decision, the United States Supreme Court ruled in Stovall v. Denno²⁹that an unduly suggestive lineup might constitute a due process violation if it could lead to an irreparably mistaken identification.³⁰A defendant could move to suppress prejudicial identification testimony depending on the "totality of the circumstances" surrounding the testimony.³¹The next year, in Simmons v. United States?2 the Court held that each alleged due process violation during a lineup must be examined on the facts of the individual case.³³Lineups would be excluded from trial if the "procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."³⁴

In the 1970s, the Court began retreating from the broader safeguards guaranteed in Wade, Stovall and Simmons. In United States v. Ashy55 the Court refused to extend the Sixth Amendment right to coun-Page 385sel to photographic lineups, reasoning that the minimal risks presented in a display of photographs did not require such an extraordinary safeguard.³⁶The Court also found that even extremely biased lineups were not per se excluded.³⁷Instead, it was necessary to determine whether the admittedly suggestive lineup was nonetheless reliable.³⁸In Neil v. Big-gers,³⁹the Court considered five factors for determining the dependability of eyewitness identifications: (1) the witness's opportunity to view the perpetrator during the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's initial description of the perpetrator, (4) the witness's certainty at the lineup, and (5) the length of time between the crime and the identification.⁴⁰In Manson v. Brathwaite⁴¹the Court concluded, "reliability is the linchpin in determining the admissibility of identification testimony. . . ,"⁴²This emphasized even more firmly that the important question was not whether the identification procedure was prejudicial to the criminal defendant, but whether the identification itself was reliable.

To varying degrees, these cases sought to remedy the effects of suggestive lineups, but they did nothing to discontinue the use of prejudicial...