This weekend, thePalm Beach Post had a great article on the foibles of human memory which cause eyewitness misidentifications.  While the article comprehensively covers the issue, it also notes that the Post did its own mini-study of eyewitness identification policies of thirty-two local law enforcement agencies:

As wrongful convictions based on mistaken eyewitness identification swelled, the U.S. Department of Justice recommended to police and sheriffs nearly a dozen years ago a host of simple safeguards:

How to create fair photo lineups; how to advise eyewitnesses when they look at lineups; how to document an eyewitness’ identification.

Yet according to an investigation by The Palm Beach Post, most area law enforcement agencies failed to adopt those recommendations in their written policies and procedures.

Using Florida’s public records law, The Post gathered and examined written policies, procedures and training materials of 32 agencies from Boca Raton to the Treasure Coast and west to the Glades. Only four agencies didn’t respond to The Post’s request.

The Post looked for those simple safeguards recommended by the Justice Department in 1999.

Not surprisingly, of the few agencies that did have relevant written polices, most were not up to snuff.  Most agencies didn’t have any policies at all:

Of the 32, only three have specific eyewitness ID policies and include key elements recommended by the Justice Department: the Indian River County Sheriff’s Office and the Jupiter and Palm Beach Gardens police departments.

Two other police departments, in the town of Palm Beach and Port St. Lucie, include key elements in their overall policies, but do not have separate eyewitness ID policies.

. . .

In The Post’s request, some agencies cited Florida’s Law Enforcement Handbook of 2010 as their guide.Yet the handbook does not reflect Department of Justice recommendations regarding cautionary instructions, composing lineups or precise documentation. The handbook does not even mandate that six pictures be used in a lineup.

. . .

The final Department of Justice recommendation The Post surveyed for in agencies’ records is the comprehensive documentation of an eyewitness’ identification. Gary Wells – a national eyewitness ID expert who testified before the commission – urges police to document a witness’ precise degree of certainty, right down to the detail of how many seconds or minutes it took for an eyewitness to pick someone.

Only five of the 32 agencies require documenting such a precise degree of certainty in their written procedures.

Yet, when confronted with this information, folks in law enforcement and the prosecutorial community provide the same litany of excuses to not adopt uniform best-practices in this area: It doesn’t matter what the policies say, it matters what officers do in practice; eyewitness misidentification is no longer a problem because we have updated our procedures and cases are not prosecuted solely on identifications; this is just an attack on the integrity of law enforcement; wrongful convictions are just a fluke.  I could go on for much longer.

But this just boils down to plain recalcitrance.  Law enforcement came up with the currently practiced ID procedures not through scientific inquiry which tested the practices’ validity.  Rather, the practices were created by law enforcement for law enforcement, with the sole goal of enhancing prosecutions, rather than enhancing accuracy and reliability.  When those practices have been subjected to scientific scrutiny they have failed miserably.

Things haven’t changed and they won’t change until folks wake up and realize that these reforms efforts are not only to prevent wrongful convictions, but are designed to protect the public and increase the reliability of criminal prosecutions.  Misidentifications are and will be a continuing problem.  The Post article notes two recent local cases, from the past five years, that demonstrate that the problem of suggestive lineups still exists.  We won’t ever be able to eradicate mis-IDs as long as people are making the identifications.  But with the weight of the scientific research pointing towards express reforms, the Department of Justice recommending those reforms, and state and local governments around the nation following suit, we have no excuse for failing to improve our shot at achieving the most reliable form of justice.

One last thing.  kudos to Senator Joe Negron (R-Stuart) for understanding the need for uniform statewide eyewitness identification procedures and his willingness to be a leader on this issue when the Innocence Commission comes up with a recommendation.