Implementing the lessons from wrongful convictions: an empirical analysis of eyewitness identification reform strategies.

AuthorFindley, Keith A.
PositionIV. Beyond the Courts: Legislative and Administrative for Implementing Reform A. Top-Down Prescriptive Legislation 2. Assessing the Top-Down Approach through Conclusion, with footnotes, p. 416-451
  1. Assessing the Top-Down Approach

    The advantage of the top-down, command-and-control model is, obviously, that it can dictate best practices and can put the force of law behind those dictates. As policy advocates with the Innocence Project explain:

    There are obvious benefits to legislating police practice reform. A clear advantage of a statute is that it assures uniformity and consistency in expectations of practice across a given state and accomplishes this goal promptly, rather than uneven implementation over a protracted period of time. Another benefit legislation can offer is its ability to provide clear direction to the courts about how to consider eyewitness evidence that has been gathered in violation of best practices. Finally, legislation can provide law enforcement with both the resources and direction for necessary training for improved eyewitness identification protocols. (221) Given police resistance to nudges toward reform, exhibited for example by the Georgia and Maryland experiences with voluntary policies, the heavy hand of top-down mandates might be required, at least in some instances. The Innocence Project, for its part, prefers to work with local law enforcement in a collaborative effort to reform practices, but when that fails, it views mandatory legislation as a necessary alternative. (222)

    But there are drawbacks to the top-down model. First, because it requires engagement of the political process, and because police and prosecutors often resist and have political clout, adopting such legislation is not politically feasible in many jurisdictions. One reason states like Wisconsin have gone the route of directing police to develop their own policies, rather than mandating that they follow legislatively prescribed policies, is that there was little political will in the legislature to impose heavy-handed or intrusive mandates on police. (223)

    Second, because the best practices are based on social science research, and that research is continually evolving and developing, there is some concern that writing any particular procedures into a statute freezes the current state of the science and makes future research-based reform more difficult. (224)

    Third, because legislation is typically drafted at a fairly general level, legislative mandates tend to be less specific, and hence to some degree less helpful, than agency-developed policies and procedures. (225) In this sense, rules for conducting eyewitness identification procedures share the characteristics of other administrative agency rules and rule-making processes. Administrative rules are typically relied upon where the requirements for expertise, flexibility, and specificity exceed what can be expected to emerge from the political legislative process. (226)

    Despite these limitations, a number of states have adopted top-down legislation that is quite remarkable in its specificity. Several statutes mandate the use of blind sequential procedures; provide detailed instructions on "blinding" the process by use of such things as the folder shuffle system; (227) require specified, unbiased witness instructions; provide specific directions that fillers should be selected to fit the description of the perpetrator and chosen so they do not make the suspect stand out; prescribe the number of fillers to be utilized; require prompt recording of witnesses responses and confidence statements; and permit no more than one suspect per lineup. (228) The statutes are far more specific than many policies adopted by law enforcement agencies on their own.

    But statutes can only go so far; there is inevitably a limit to the specificity and depth of legislation. Written agency policies have no such inherent constraints. The Wisconsin Department of Justice Model Policy and Procedure, for example, in its longest form (it was promulgated in several forms), consumes twenty-eight pages, and is broader and deeper than any legislation. (229) It provides recommendations on all of the major best practices outlined above, plus others, including specific instructions on topics such as the use of composite sketches and showups. (230) And, significantly, it lays out the rationale and underlying science for each of the recommendations to help police better understand and accept the procedures set forth. (231)

    This last point suggests a fourth limitation on top-down legislative approaches. Police culture is notoriously resistant to criticism and change from outside. Police tend to be insular organizations, whose members value solidarity and a shared identity, exemplified by such things as the "code of silence," the unwritten rule that prevents one officer from testifying against or exposing another officer's wrongdoing. (232) As one police scholar has put it, "[t]he insularity of police institutions and the solidarity of rank-and-file police officers create an impervious shield around these institutions." (233) Policing tends to engender an "us vs. them" mentality in the relationship between police and the communities they serve, as well as between the police and those in governance above them. "The embattled police--the 'insiders'--view 'outsiders' as 'the enemies who are assaulting . . . the "brothers" on the force.'" (234) Hence, "The rank-and-file officers abhor being second-guessed by inexperienced bureaucrats unfamiliar with the challenges that the officers face on a daily basis." (235)

    This culture might help explain why, as discussed below, in jurisdictions like Wisconsin and Virginia, where police are free to determine their own written policies, they are more likely to adopt sequential procedures than blind administration, even though the science on the latter is more settled. (236) Adopting sequential procedures requires some willingness by police to accept that there is a better way to achieve their goals than they have employed in the past. While that might be an unwelcome message to some, it pales in comparison to what many perceive as the insult of requiring blind procedures. Anecdotally, the response of many police to the requirement for blind procedures is to take offense, misunderstanding the requirement as a reflection of distrust in the detectives who administer lineups rather than a response to the human condition, and a fundamental tenet of any type of sound testing protocol.

    Given this culture--and the basic human tendencies it reflects--reforms might be more readily accepted if the rank-and-file can be brought on board, either through training or by being given a voice in creating the policies. As Herman Goldstein, one of the pioneers of modern policing scholarship, wrote more than thirty-five years ago about police reform in general:

    Traditional programs to improve the police--labeled as efforts to "change," "upgrade," or "reform" the police or to "achieve minimum standards"--require that police officers openly acknowledge their own deficiencies. Rank-and-file officers are much more likely to support an innovation that is cast in the form of a new response to an old problem--a problem with which they have struggled for many years and which they would like to see handled more effectively. (237) No one has yet studied police compliance with legislative top-down eyewitness identification mandates. It may be that police are implementing the mandates fully and effectively. But we know from other contexts--such as the Miranda requirements--that police can become facile at circumventing mandates they do not like, either overtly or through more subtle manipulations. (238) It is therefore possible that, while the legislative mandates make good "law on the books," they are not as effective as "law on the streets." Indeed, initial anecdotal evidence suggests that, in some places at least, police may not be complying widely with the requirements of such eyewitness identification statutes. (239)

    The Ohio experience with mandates illustrates this point. The Ohio statute, which was adopted in a context that did not involve the kind of law enforcement collaboration that has existed in other states, (240) does not explicitly require sequential procedures, but does include provisions on how to conduct photo lineups using the folder shuffle system--a system whose only purpose is to make identification procedures both functionally blinded and sequential. Nonetheless, some Ohio law enforcement agencies have interpreted the sequential "folder system" portion of the statute as a suggestion, not a "preferred method." (241) This decision is bolstered by a statement from Ohio Attorney General Mike DeWine that "[t]he state legislature did not say that the 'folder method is preferred.' There is nowhere in the statute does it say that." (242) However, at least one Ohio Court of Appeals has found that the legislature has expressed a "clear preference" for the folder system. (243) Despite this opinion, at least some of Ohio's law enforcement agencies still use the "six-pack" (simultaneous) method. (244)

    The point is obvious: one possible drawback to legislatively mandated eyewitness identification practices is that they may lack police buy-in, which can undermine their effectiveness. (245) It is partly for this reason that some jurisdictions have attempted reform through less directive processes.

    1. Ad Hoc Bottom-Up Reform

      One response is to encourage police to sort this all out for themselves. Indeed, in most jurisdictions, there simply is no organized statewide effort to implement "best practices." That is not to say no reform is happening in those states. Rather, that is to say that if reform is occurring, it is ad hoc and sporadic and almost entirely initiated by police in response to urging by reformers. Indeed, an important paper from the Executive Sessions on Policing and Public Safety sponsored by the Harvard Kennedy School and the NIJ argues, "for strong leadership from police agencies to lead reviews of wrongful convictions that can be learning experiences...

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