As of this writing, there have been 2,481 exonerations in the United States since 1989—nearly 400 of them through DNA exoneration. Roughly 35 percent of the total exonerations and 69 percent of the DNA exonerations involved misidentification issues.
Many of these erroneous eyewitness identifications involved misconduct by the police and/or deliberate lies by the eyewitnesses motivated by any number of reasons. But it is calculated police misconduct that is the most prevalent reason for eyewitness misidentification—the police displaying a single photo of the suspect while telling the witness that the suspect has a criminal record. The police will even coerce identification by threatening the witness and/or their family with criminal charges.
Twenty-four states have implemented “core reforms” promoted by the Innocence Project through legislation, court action or voluntary compliance, including Texas and Oregon. The five basic reforms advocated by Innocence Project which have been adopted by these two dozen states include:
- The “Double-blind” Procedure/Use of a Blind Administrator:A “double-blind” lineup is one in which neither the administrator nor the eyewitness knows who the suspect is. This prevents the administrator of the lineup from providing inadvertent or intentional verbal or nonverbal cues to influence the eyewitness to pick the suspect.
- Instructions:“Instructions” are a series of statements issued by the lineup administrator to the eyewitness that deter the eyewitness from feeling compelled to make a selection. They also prevent the eyewitness from looking to the lineup administrator for feedback during the identification procedure. One of the recommended instructions includes the directive that the suspect may or may not be present in the lineup.
- Composing the Lineup: Suspect photographs should be selected that do not bring unreasonable attention to him. Non-suspect photographs and/or live lineup members (fillers) should be selected so that the suspect does not stand out from among the other fillers. Law enforcement should select fillers using a blended approach that considers the fillers’ resemblance to the descriptionprovided by the eyewitness and their resemblance to the police suspect.
- Confidence Statements: Immediately following the lineup procedure, the eyewitness should provide a statement, in his own words, that articulates the level of confidence he or she has in the identification made.
- The Lineup Procedure Should Be Documented: Ideally, the lineup procedure should be electronically recorded. If this is impracticable, an audio or written record should be made.
Intentional Police Misconduct Subverts Reforms
But these reforms do not always prevent police misconduct. Take, for example, an Oregon police department’s handling of the lineup process in April 2017 involving a robbery suspect named Tyrone Lamont Allen. Oregon is one of the so-called eyewitness reform states, but the conduct of the Portland Police Department’s handling of Allen’s lineup process undercuts any reforms implemented by the state.
Allen’s arrest came after a four-day robbery spree in Portland during which, according to The Oregonian, “four bank and credit union robberies occurred.” Allen has very distinctive tattoos on his forehead and right cheek. Although the police believe they had the right man with Allen, they faced the serious problem because none of the tellers reported seeing tattoos on the robber’s face. This prompted someone in the police department to suggest that the police digitally remove Allen’s facial tattoos from his mug-shot.
Criminalist Admits Altering Photo Lineup
Testifying at a recent federal court hearing in Allen’s case, Portland police forensic criminalist Mark Weber admitted that he had removed Allen’s facial tattoos with Photoshop, telling the court: “I basically painted over the tattoos. Almost like applying electronic makeup.”
It was Weber’s jerry-rigged mug-shot of Allen, along with the mug-shots of five other similar looking men that was shown to the tellers. The police did not tell the three tellers that Allen’s mug-shot had been digitally altered. Two of the tellers identified Allen as the robber while the third identified someone else.
In an effort to suppress the pretrial identification procedure, Allen’s attorney, Mark Ahlemeyer, argued to the court that the digitally altered “manipulation” allowed the police to “rig the outcome” of the photo lineup.
While the Portland Police Department, and apparently several other police departments across the country, have made digitally altered photos a “standard tool” in their lineup procedures, Temple University law professor Jules Epstein, a nationally-recognized expert on eyewitness testimony, had never heard of such a lineup procedure during his 40 years as an attorney and law professor that was as “blatantly suggestive” as the one employed in Allen’s case.
“It is unbelievable to me that police would ignore the fact that no teller had described a person with glaring tattoos and make this man into a possible suspect by covering them up,” Epstein was quoted by The Oregonian as saying. “They’re increasing the risk of mistaken identity.”
Altering Photos Contrary to FBI Protocol
The failure of the Portland police to document the digitally altered manipulation of Allen’s mug-shot not only violated Oregon’s commitment to “lineup reform” but runs counter to longstanding protocols accepted the U.S. Justice Department in photo array lineups. However, Assistant U.S. Attorney Paul Maloney, a Trump appointee, defended the police conduct in Allen’s case, telling the court:
“The whole idea was to make Mr. Allen blend in – so his photo wouldn’t stand out,” the federal prosecutor argued. “These procedures were prudent. They were appropriate.”
U.S, District Court Judge Marco A. Hernandez took the issue under advisement.
Prosecutor Maloney immediately filed a “Notice of Supplemental Authority” following the hearing on Ahlemeyer’s motion to suppress, informing Judge Hernandez that a federal court in the Northern District of California had denied a motion to suppress an identification where the police used software to digitally add a “hooded sweatshirt” to the “source photo of defendant’s face.”
It remains to be seen how Judge Hernandez will resolve what attorney Ahlemeyer calls a “slippery slope” issue dealing with jerry-rigged police identifications. But if the courts permit digitally altered manipulation in police lineup procedures, the next step will most assuredly be for police to insert a caption above the suspect’s head that reads, “This is him.”