dada_floridamisidentification_final - UDC Law Review

EYEWITNESS MISIDENTIFICATION AND THEMISCARRIAGE OF JUSTICE IN FLORIDAParisa Dada 1INTRODUCTIONFormer Appellate Judge for the Eighth Circuit, Gerald Heaney, acknowledged it best,with respect to the death penalty when he articulated that the:[I]mposition of the death penalty is arbitrary and capricious. Decision ofwho will live and who will die for his crime turns less on the nature of theoffense and the incorrigibility of the offender and more on inappropriateand indefensible considerations: the political and personal inclinations ofprosecutors; the defendant's wealth, race and intellect; the race andeconomic status of the victim; the quality of the defendant's counsel; andthe resources allocated to defense lawyers. 2On the same note, many countries have considered the imposition of the death penaltyas a risk not worth taking with respect to wrongful convictions. At least ninety-fivecountries have abolished the death penalty all together, including our Canadian neighborsto the north. 3 The United States remains one of fifty-eight retetionist countries with atleast thirty-five of the fifty states imposing the death penalty. 4 The death penalty has leadto at least 1,200 executions since 1976 alone. 5 Furthermore, over 130 people have beenreleased from death row since 1973, with evidence of their innocence. 6 Florida is theleading state of exonerations since 1973, with twenty-three intimates released from deathrow. 7The double-digit figure only reflects the number of death row cases that have beenoverturned. The figure does not reflect the totality of all exonerations in Florida. TheInnocence Project documented at least eleven cases of wrongful convictions withsentences other than the death penalty. 81 Parisa Dada is a 2012 graduate of the University of the District of Columbia, David A. ClarkeSchool of Law.2 Gerald Heaney, Anti-Death Penalty Quotes, ANTI-DEATH PENALTY INFORMATION,http://www.antideathpenalty.org/quotes.html (last updated, November 1, 2010).3 Amnesty International, Abolitionist and Retentionist Countries, ANTI-DEATH PENALTYINFORMATION, http://www.deathpenaltyinfo.org/abolitionist-and-retentionist-countries (last updated,November 1, 2010).4 Id.5 Facts about the Death Penalty, ANTI-DEATH PENALTY INFORMATION,http://www.deathpenaltyinfo.org/documents/FactSheet.pdf (last updated, November 5, 2010).6 Id.7 Id.8 Case Profiles, INNOCENCE PROJECT OF FLORIDA,http://floridainnocence.org/content/?page_id=34.1

A witness’s expectation, attitude, belief and knowledge are highly malleable and caneasily lead to misidentification. Estimator variables are factors present during the crime,such as a high level of stress, a weapon, or a disguise by the perpetrator that inhibitwitness accuracy. 13 Systems variables are post-event factors that further contribute tomisidentification, such as misinformation, source monitoring error, cognitive bias,overconfidence, and relative judgment. 14i. MisinformationMisinformation arises during post event procedures and can further contribute to theinaccuracy of a witness’s identification. In other words, during the reconstructive processthe witness may unknowingly alter the information about the crime from what he or she“learns after the crime from other eyewitnesses, the police, the prosecutor, and themedia.” 15 Post event information can lead not only to bad memory of the crime but canfurther alter the ability of the eyewitness to identify the culprit. 16ii. Source Monitoring ErrorsOftentimes, an eyewitness may attribute to their own memory of the crimeinformation they actually perceived from another source. Again, the information can becollected and stored in their memory from the media, law enforcement personnel, aprosecutor or simply other eyewitnesses. 17 Eyewitnesses “may also sometimes identify asthe perpetrator of a crime an individual who was a bystander to the crime or whom theysaw in another situation or context.” 18 Consequently, the source monitoring errors furtherattribute to the inaccuracies of the reconstructive process of an eyewitnesses memory.iii. Cognitive BiasIn addition, cognitive biases contribute significantly to eyewitness inaccuracy.Studies attribute cognitive inaccuracy to the fact that,[W]hat a person expects to see is the result of the person’s own generationof hypotheses, theories or scenarios about what must be the case, thepersonal investment in those hypotheses will reinforce the tendency toperceive or overvalue confirming information and to miss or irrationallyundervalue disconfirming information. 1913 Id.14 Id. at 457-463.15 Id. at 457.16 Wise et. al., supra note 10, at 457.17 Id.18 Id.19 Keith A. Findley and Michael S. Scott, The Multiple Dimensions of Tunnel Vision in CriminalCases, WIS. L. REV. 291, 309 (2006).3

There are three biases that studies categorize as cognitive bias: confirmation bias,hindsight bias and outcome bias. As a result, any or all three of these biases cancontribute to misidentification.Psychologists define “confirmation” bias as “the tendency to seek or interpretevidence in ways that support existing beliefs, expectations, or hypotheses.” 20 Theinaccuracy lies in the fact that when one seeks to confirm their existing beliefs,expectations and hypotheses they generally tend to disfavor information that disconfirmstheir theory. 21 Furthermore, when revisiting information previously obtained, peopleprefer information that tends to confirm a presented hypothesis or belief. 22 Eyewitnessesgive greater weight to information that supports existing beliefs than to information thatruns counter to them and the confirmation they create is to some degree, illusory. 23On the same token, “hindsight” bias reflects a situation when one perceives outcomesto be inevitable or predictable and thus projects new knowledge into the past, without anyawareness that the past been tainted by the subsequent information. 24 Hindsight biashappens when the police or prosecutor subsequently gives feedback to a witnesssubsequent to the identification. 25 If the feedback confirms the projected theory of theculprit’s identification, then hindsight bias “will dramatically inflate not only thewitness’s confidence but also the witness’s assessment of the conditions surrounding theidentification.” 26“Outcome” bias is the last of the cognitive biases and goes hand in hand withhindsight bias. Similar to “hindsight” bias, outcome influences identification by injectingnew knowledge into perceptions of the past. On the other hand, outcome bias evaluatesthe quality of the judgments made about past situations and whether such judgments weregood or bad. 27Cognitive biases confirm the inherent unreliability of the human memory.Unfortunately, eyewitness identification is one of the largest factors in convictions.Biases contribute not only to misidentification, but can also lead to tunnel vision withrespect to all aspects of the criminal conviction process. Thus, it is imperative to remedyas much as possible the inherent bias of the eyewitness to prevent miscarriages of justice.iv. OverconfidenceThe eyewitness’s overconfidence in the accuracy of their memory is anothercognitive factor that contributes to malleable memory. The witness’s confidence abouthis or her perception of the crime does not directly correlate with the accuracy of his or20 Id. at 309.21 Id.22 Id. at 312.23 Id.24 Findley, supra note 18, at 317.25 Id. at 318.26 Id.27 Id.4

her eyewitness identification. 28 There are many factors that can contribute to theeyewitness confidence that have no actual bearing on accuracy of the identification, suchas police suggestiveness, other eyewitnesses, and prosecutorial influence. 29 Studies haveshown that this type of post event information has the greatest effect on a witness’sconfidence level and can lead to erroneous information intake. 30 False confidence isparticularly damaging since studies have indicated that juries weigh eyewitnessconfidence heavily in assessing the credibility of evidence. 31v. Relative JudgmentRelative judgment is a cognitive impairment that occurs with eyewitnessidentification in line-up and photospread procedures in particular. “Eyewitnesses tend toidentify the person from the line-up who, in the opinion of the eyewitness, looks mostlike the culprit relative to other members of the line-up.” 32 Different experimental studiesindicate that an eyewitness’ relative judgment has lead to misidentification in a blindlineup wherein the culprit was not even present. 33 Relative judgment is a cognitivephenomenon that occurs to eyewitnesses because:[F]irst, they logically assume that law enforcement would not conduct alineup if they did not have a suspect. Second, many eyewitnesses feelpressure form law enforcement, relatives and friends, and themselves tomake an identification. In addition, many eyewitnesses feel like failure ifthey cannot make and identification during an identification procedure. 34The nature and pressure of these self-fulfilling expectations in addition to theunintentional influence of those conducting the procedure lead to misidentification. 35Thus, the inherent cognitive defect of the eyewitness’s memory is just one of severalfactors that contribute to misidentification phenomena.B. Lack of Procedural Safeguards by Law Enforcement PersonnelLaw enforcement personnel have a significant impact on eyewitness identificationsince they conduct photospreads, show-ups and lineups in the initial investigation ofcriminal proceedings. They can be highly influential on an eyewitness even if theiractions are unintentional. Most jurisdictions, including Florida, lack minimum guidelinesto reduce procedural errors in the investigation stage. Misidentification can occursystematically with respect to whom, when and how the identifications are proctored.28 Wise et al., supra note 10, at 458-459.29 Id. at 458.30 Id. at 459.31 Id.32 Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups andPhotospreads, 22 LAW & HUM. BEHAV. 1, 10 (1998).33 Wise et al., supra note 10, at 461.34 Id. at 462.35 Id.5

i. Who Conducts the Identification ProcedureThe police to arrive at the scene of the crime are charged with the initial investigation.Besides collecting physical evidence they must also interview and conduct severaldifferent types of identification procedures to obtain a proper suspect. As the ones whoconduct these types of identification procedures, they are extremely influential on thememory of the eyewitness.Tunnel vision which is a natural human tendency that leads actors in the criminaljustice system to “focus on a suspect, select and filter the evidence that will build a casefor conviction, while ignoring or suppressing evidence that points away from guilt” 36begins at the investigation stage of a criminal charge. Police may feel an exerted pressurefrom the victim, community and supervisors to produce a suspect and that pressure canlead to investigative tunnel vision. 37 Furthermore, investigators can become attached totheir theory of the suspect and the criminal investigation can shift from open ended toproving that the preferred suspect is the criminal. 38For example, in lineups when the investigator or administrator is aware of theidentification of the suspect, scientific studies indicate that the administrator mayintentionally or unintentionally cause the eyewitness to choose the suspect through verbaland nonverbal cues. 39 Researchers attribute this phenomenon to the fact that:[T]his interaction between the lineup administrator and the eyewitness is ahighly interpersonal process. Research on experimenter-expectancy effectsshow how powerful such interpersonal process can be, especially whenclose physical distance between the interactants allows for eye contract,visible facial expressions, and verbal exchanges. The absence of videorecordings in these interactions make it difficult or impossible to knowwhat role might have been played by the lineup administrator in leadingthe eyewitness to select a particular lineup member. 40Thus, the investigators that are aware of the identity of their suspects may be partialand lead the witness to a particular suspect.ii. How Identification Procedures are ConductedMisidentification occurs as a result of procedural defects and police suggestivenesswhen the identification is conducted. Faulty identification methods greatly increase errorsthat are the byproduct of eyewitnesses’ relative judgment.36 Findley, supra note 18, at 292.37 Id. at 323.38 Id. at 326.39 Wise et al., supra note 10, at 493.40 Wells et al., supra note 31, at 21.6

Lineups are usually proctored with five or six people in the group. Lineups aresuggestive when the suspect is the only one who fits the eyewitness’s prior description ofthe culprit. 41 For example, suggestion is evident when the suspect is the only person inthe lineup wearing the same type of clothing that the suspect was wearing during thecrime. 42 Yet another instance of suggestiveness involves a suspect that does not fit theinitial description of the culprit. If the suspect is in a line-up with five other persons whodo fit the initial description, then that can lead the eyewitness to unintentionally pick theparticular suspect because he stands apart from the rest. 43Suggestiveness can also be evident in photospreads if the photo of the suspect hassome distinguishing feature that would lead the eyewitness to unknowingly choose thatparticular photo based simply on that feature. For example, if the suspects photo wastaken from a different angle than other photos. 44“The presence of features that make the suspect stand out from the distractersconfounds our ability to conclude that the selection of the suspect was due to truerecognition versus some of suggestion, demand or inference.” 45Furthermore, although show-ups are constitutional in exigent circumstances they canbe “considered suggestive in the sense that they convey to the eyewitness which person isthe suspect, thereby standing in contrast to the line-ups-as-experiments analogy in whichthe test itself should not communicate the hypothesis of the tester.” 46These three methods of identification are faulty since investigators are relying on therelative judgment of the eyewitness. As previously discussed, relative judgment is anatural tendency of the eyewitness to “simply identify the person who best resembles theculprit relative to the others in the line-up”. 47 These procedures are not indicative ofaccuracy, rather the eyewitness might feel pressure to choose any suspect that might befeatured differently than others. Thus, accuracy of the identification is dependent uponhow the investigator conducted the procedure.iii. When the Identification Procedures are ConductedTiming is one more factor that can contribute to the faulty investigative procedures.The length of time between the crime and the confrontation is the easiest way tocontribute to eyewitness memory error. Studies indicate that forgetting details of a crimecan occur rapidly and post event information can interfere with the eyewitness’s memoryof the crime. 48 When investigators fail to interview eyewitnesses in a timely manner itcan lead to failed memory, inaccurate details and flawed confidence for the eyewitness.41 Id. at 24.42 Id.43 Id.44 Id.45 Wells et al., supra note 31.46 Id. at 24.47 Id. at 23.48 Wise et al., supra note 10, at 456.7

In short, investigations that are not conducted immediately can lead to irreversible errorin eyewitness’ memory. 49C. The “Due Process” StandardAt the judicial level, most state courts (including Florida) apply the two-prong(Brathwaite test) that the Supreme Court mandated in determining the reliability ofeyewitness identification procedure at a federal level. The problem with the Brathwaiteanalysis is that each prong acts almost independent of the other and if the first prong ofthe test is not satisfied, the courts will not look towards the second. The federal analysissets a very low threshold for admission of eyewitness evidence and in many cases hasproven to be poor indicator of reliability.i. Manson v. Brathwaite: The Two-Prong AnalysisAfter deliberating between two different standards of reliability for eyewitnessidentification (pretrial and trial identifications), the Supreme Court of the United Statesfinally set a minimum standard for lower courts to follow in their analysis. The testdeveloped from the case of Nowell A. Brathwaite, who was convicted of possession andsale of heroin with sentence of no less than six years and no more than nine years. 50Brathwaite pleaded his innocence all way to the Supreme Court by claiming that theeyewitness identification procedure used by the investigator in the case was unreliabledue to the suggestive nature of the single photo identification. 51Brathwaite’s charge concerned an incident that happened in 201 Westland inHartford, Connecticut on May 5, 1970. 52 An undercover officer Jimmy D. Glover and apolice informant Henry Alton Brown arrived at the apartment to purchase narcotics from“Dickie Boy” Cicero. 53 Glover knocked on the door in the stairway that was illuminatedby natural light from the window of the third floor hallway. 54 The door opened andGlover observed a man in the doorway with a woman standing behind him. 55 Brownidentified himself and Glover (undercover agent) and asked for the narcotics. Glover paidthe man $20 for the drugs and the man returned with a bag of narcotics. 56 In the durationof the transaction, Glover had about five to seven minutes to observe the dealer’s face. 57Once the purchase was complete, Glover drove to the police headquarters where hedescribed the culprit to two other officers. 58 Another officer, D’Onofrio, recognized thedescription and brought a photograph of the suspect to Glover’s office for49 Wise et al., supra note 10, at 472.50 Manson v. Brathwaite, 432 U.S. 98, 98 (1977).51 Id.52 Id. at 99.53 Id. at 100.54 Id.55 Manson, 432 U.S. at 100.56 Id.57 Id. at 101.58 Id.8

identification. 59 “Glover, when alone, viewed the photograph for the first time upon hisreturn to headquarters on May 7, he identified the person shown as the one from whomhe had purchased narcotics.” 60The suspect Brathwaite was charged with possession and sale of the narcotics and athis trial the photograph from which Glover had initially identified the suspect wassubmitted with in court identification without any objections from the defense. 61 In hisdefense, Brathwaite testified that he could not have been present at the apartment the dayof the events. 62 He submitted into evidence testimony from his wife that he was home allday on the May 5. He also submitted testimony from a Professor of Medicine that onApril 5, 1970, he had seen about his medical history and high blood pressure. 63With all the evidence weighed, the jury found him guilty on both counts. 64Brathwaite petitioned to the District Court of Connecticut. His writ of habeas corpus wasdenied but the Court of Appeals for the Second Circuit reversed. He was finally able toget a hearing on the credibility of the evidence. 65 The Second Circuit held that “in briefsummary, the court felt that evidence as to the photograph should have been excluded,regardless of reliability, because the examination of the single photograph wasunnecessary and suggestive.” 66 On appeal from that ruling, the Supreme Court grantedcertiorari to hear the case. 67The Supreme Court, with Justice Blackmun writing the opinion, ultimately reversedthe decision of the Second Circuit, holding that while the single photograph wasunnecessarily suggestive, under the totality of the circumstances approach there did notexist a substantial likelihood of irreparable harm, because Glover (undercover agent) wasa trained officer, who had a sufficient opportunity to view the witness, identified thephotograph only two days after the incident and was also able to make a positive in-courtidentification. 68The holding in Brathwaite, based on the individualized facts of the case, was not assignificant as the rule of law that derived from the holding. The court went further tohold, as a general rule, the two-prong analysis that lower courts should assess indetermining the reliability of eyewitness identification. Mr. Justice Blackmun in recitingthe two-prong analysis stated:[W]e therefore conclude that reliability is the linchpin in determining theadmissibility of identification testimony for both pre- and post-Stovall59 Id.60 Manson, 432 U.S. at 101.61 Id. at 102.62 Id.63 Id.64 Id.65 Manson, 432 U.S. at 103.66 Id. at 103-104.67 Id. at 104.68 Id. at 114-117.9

confrontations. The factors to be considered are set out in Biggers. Theseinclude the opportunity of the witness to view the criminal at the time ofthe crime, the witness’ degree of attention, the accuracy of his priordescription of the criminal, the level of certainty demonstrated at theconfrontation, and the time between the crime and the confrontation.Against these factors is to be weighed the corrupting effect of thesuggestive identification itself. 69In Brathwaite, the Supreme Court finally clarified a test for the courts to apply inweighing identification evidence. It has been at least thirty years since the decision andthere is some indication that the test might not always be effective on a state level. “Yetonly a handful of state supreme courts have endeavored to fill the void, doing so in avariety of ways, most of which constitute minor improvements to the Supreme Court’stest.” 70 This gap in the due process standard, at statewide levels, can be attributed to lackof legislation directed at the reliability of eyewitness identification procedures.ii. Issues of the Two-Prong AnalysisThe problems with the federal due process standard of identification evidence rest inboth prongs of the analysis. Initially, the courts must weigh police suggestiveness. 71 Ifthere is no indication of police suggestion, the courts will not apply the Due Process testto identification procedures. 72 The test does account for system variables (such as policesuggestion and post event information), however, the test does account for estimatorvariables. 73 Estimator variables are “factors inherent to the eyewitness (age, lighting,weapon focus, cross race bias, etc.).” 74 Thus, if the witness misidentifies based estimatorvariables, it will not qualify under the Due Process standard.Moreover, the first prong is satisfied, the evidence can still be admitted if it passes thesecond “reliability” prong based on the Biggers’ five factors. The problem with admittingevidence obtained through suggestive practices is that it can “produce falseidentifications, it can distort a person’s memory of the events, and it can artificiallyheighten the witness’s degree of confidence in the identification.” 75The second factor of the dual analysis is heavily determinative on the reliability of theeyewitness’ memory. The Supreme Court declared that courts should look at the “totalityof the circumstances” also known as the five factors determined in Neil v. Biggers. 76 Thefive factors include: 1) the opportunity of the witness to view the criminal at the time ofthe crime, 2) the witness’ degree of attention, 3) the accuracy of his prior description of69 Id. at 114.70 Sandra G. Thompson, Eyewitness Identifications and State Courts as Guardians AgainstWrongful Conviction, 7 OHIO ST. J. CRIM. L. 603, 605 (2010).71 Id. at 610.72 Id.73 Id.74 Id.75 Thompson, supra note 69, at 611.76 Neil v. Biggers, 409 U.S. 188, 199-200 (1972), cited with approval in Manson, 432 U.S. at 114.10

the criminal, 4) the level of certainty demonstrated at the confrontation, and 5) the timebetween the crime and the confrontation.” 77 The Biggers factor fail in two ways inassessing the totality of the circumstances. The factors rely heavily on the correlationbetween the certainty of the eyewitness and the accuracy of the identification. 78 Asindicated prior, with cognitive biases in place and estimator variables the certainty doesnot correlate with accuracy. 79 Furthermore, although this prong of the test does includecertain estimator variables, there are other estimator variables that are not exclusive to thefive factors such as weapons-focus. 80The Brathwaite analysis is a good starting point but requires a very low threshold foradmission of identification evidence and does not account for all the variables that canaffect the human memory.II. STATE PROFILE: FLORIDA, THE EYEWITNESS IDENTIFICATION ANOMALYThe criminal justice system in Florida is a bit of an anomaly. The state is one ofthirty-five states to impose the death penalty and it is the leader in exonerations for deathrow inmates. Yet the system lacks any uniform procedural safeguards for lawenforcement departments and imposes a more restrictive standard of proof than thefederal due process test. These contradictions in the system explain the number of highprofile cases affected by misidentification in the jurisdiction, including the unfortunatestory of Frank Lee Smith. The story is integral to the eyewitness identification analysisabout the jurisdiction because it demonstrates the flawed nature of the entire system andalso indicates the lack of effort in the reformation of the system.A. Frank Lee Smith: A Miscarriage of JusticeAs guardians of the justice system, law enforcement personnel, prosecutors, andjudges are charged with ensuring that the laws enforced and criminals punished forwrongdoing. Most of these professionals never anticipate punishing the wrongfullyconvicted. Unfortunately, in Florida there have been several high profile miscarriages ofjustice involving eyewitness identification.One particularly egregious account of misidentification in Florida was the wrongfulconviction of Frank Lee Smith. Smith’s entire life story was that of providence andmisfortune. Born to a 14-year-old mother in on July 20, 1947 he was automaticallythrusted into a world of poverty and segregation in the deep south of Georgia. 81Not shortly after his birth, his father became involved in criminal activity and waskilled by the police. 82 Unable to support the family, his mother uprooted them to Fort77 Id.78 Thompson, supra note 69, at 610.79 Id.80 Id. at 611.81 Jeff Walsh, Frank Lee Smith’s Long Hard Life, Frontline: REQUIEM FOR FRANK LEE SMITH,http://www.pbs.org/wgbh/pages/frontline/shows/smith/etc/longhard.html (published April 2002).82 Id.11

Lauderdale, Florida where she turned tricks as a prostitute. 83 She was eventually rapedand murdered, leaving Smith in the foster care system for three years. 84 After his stay infoster care, he was finally turned over to the care of his grandmother. 85 While in highschool, he was involved in a fight that went terribly wrong and was subsequentlyconvicted of manslaughter. 86Smith was sent to the Florida School for Boys, for his conviction where he wasregularly beaten and sexually molested. 87 He was released at the age of fifteen and byeighteen was convicted of murder for a robbery scheme gone wrong. 88 He served fifteenyears in prison for the crime and was released and rehabilitated. 89For four years Smith lived peacefully at his aunt’s house, determined to live a quietlife. He was again arrested on April 29, 1985 for the rape and murder of eight-year-oldShandra Whitehead. 90 On April 15, 1985, Whitehead was attacked in her home by aburglar. 91 She was hit with a blunt object raped, sodomized and eventually murdered. 92There were not actual eyewitnesses to the crime but the victim’s mother caught a glimpseof the shoulder of the perpetrator as he was leaving the crime scene. 93 Furthermore, twoother witnesses, Chiquita Lowe and Gerald Davis stated that they had seen “scragglyhaired,delirious black man with a droopy eye in the neighborhood at the time of thecrime.” 94Lowe was the eyewitness against Smith at trial and testified that she picked him outof the photo array. 95 Unfortunately, the photo array had been tainted by post-eventinformation by the police. 96 Nevertheless, the identification evidence convicted helpedconvict Smith of rape and murder and he was sentenced to the death penalty. 97For the next 14 years, Smith fought to have his conviction overturned and eventuallywon the battle. 98 Unfortunately, DNA testing did not exonerate Smith until after hispassing in jail due to cancer. 9983 Id.84 Id.85 Id.86 Walsh, supra note 80.87 Id.88 Id.89 Id.90 Case Profiles, supra note 7.91 Id.92 Id.93 Walsh, supra note 80.94 Id.95 Id.96 Id.97 Id.98 Walsh, supra note 80.99 Id.12

Smith’s first immediate appeal was confirmed in the Florida Supreme Court. 100 Fouryears later in 1989, Chiquita Lowe recanted her identification, implicating Eddie LeeMosley instead of Frank Smith as the perpetrator. 101 As a result, the Florida SupremeCourt ruled for a new evidentiary hearing to be held in 1991. 102 At the evidentiaryhearing, the judge denied a motion for a new trial, finding the recantation of the witnessnot credible. 103By virtue of judicial misconduct, Smith was granted a new evidentiary hearing. 104Unfortunately, this hearing was not conducted until seven years after the first evidentiaryhearing in 1998. 105 In August of 1998, defense counsel filed a motion to test Smith’sDNA. 106 At the new evidentiary hearing, the Judge denied the motion for a DNA testingand a new trial. 107 Immediately after, defense counsel filed a motion to reconsider, andprior to the Judge’s ruling on the motion to reconsider, Smith lost his battle to cancer andpassed away behind bars. 108Eleven months after his death, the prosecution finally ordered DNA testing,comparing Smith’s blood to the semen collected from the victims’ underwear. 109 “Thesamples were sent to the FBI laboratory, which reported that Frank Lee Smith wasexcluded as the depositor of the semen.” 110 The DNA testing revealed that the trueperpetrator was Eddie Lee Mosley all along. 111The unfortunate moral of Smith’s story is the deficiency of the practices andprocedures in the criminal justice system of Florida.B. Florida’s Law Enforcement ProceduresIn 2006, The American Bar Association (ABA) did a case study on Florida’s deathpenalty laws, procedures and practices. The report highlighted various areas of the of theStates’ criminal justice system in need of improvement, including eyewitnessidentification. 112At a state level, Florida has not adopted a uniform policy for law enforcementidentification procedure. 113 The only requirement for law enforcement personnel is a100 Id.101 Id.102 Walsh, supra note 80.103 Id.104 Id.105 Id.106 Id.107 Walsh, supra note 80.108 Id.109 Id.110 Id.111 Id.112 American Bar Association, Evaluating Fairness and Accuracy In the State Death PenaltySystems: Florida Death Penalty Report, 65-71 (2006).113 Id. at 67.13

asic training course, regulated by the Criminal Justice Standards and TrainingCommission. 114 Police are required to take 756 hours of training in various lawenforcement techniques but no specific training on how to conduct identificationprocedures. 115At least three law enforcement agencies have tried to curtail the identification issueby implementing certain types of reforms in their procedural systems.[J]acksonville Sheriff’s Office has a policy requiring that aphotospread contain at least six photographs, in color if possible, and thatall participants in a lineup procedure should match as closely as possibleto the physical characteristics of the known or suspected subject.Furthermore, the procedure should be prepared and presented in such away as not to influence the person viewing the photospread.An Orlando Police Department training procedure states thatparticipants in a lineup should share general physical characteristics withthe suspect, and all care should be exercised to eliminate the chance thatthe suspect may be singled out by a witness/victim for some reason otherthan his/her identity. The procedure also states that the officer shouldexplain to the witness that language such as ‘I think’ or ‘It looks like’should not appear in any written statement if the witness is certain of theidentity.”The Miami-Dade Police Department requires that officers conductingidentification procedures should note the conditions of the crime scenewhen the witness viewed the perpetrator, avoid saying or doing anythingthat might indicate who the suspect is, and keep witnesses separate fromone another. While ‘there is no mandatory minimum number of photos tobe used in a display . . . at least six should be considered, all of which areof similar appearing subjects. This procedure also states that officersshould photograph lineups or, if feasible, videotape them.’ 116These efforts by individual police departments reflect a definitive notion that reformcan be done at a state level. Easy and cost effective alterations to procedure bring aboutsavings in taxpayer money and ensure that the innocent will not be wrongfully convicted.C. Florida’s Judicial StandardThe Florida Supreme Court mandated the use of Brathwaite dual analysis todetermine the admissibility of identification evidence. It must be noted however, that theFlorida Supreme Court added a higher standard of proof to the second prong of the114 Id.115 Id.116 American Bar Association, supra note 111, at 69-70.14

analysis, making it harder on the defendant to exclude suggestive evidence. 117 Hence, theapplicable law reads that “(1) the identification procedure employed by law enforcementwas unnecessarily suggestive, and (2) considering the totality of the circumstances, thesuggestive procedure gave rise to the substantial likelihood of irreparablemisidentification.” 118While the Supreme Court does not impose the “irreparable” standard on thelikelihood of misidentification, the Florida Supreme Court’s test imposes a morerestrictive burden on the defendant. 119 Furthermore, the Supreme Court standard wouldbe controlling in situations that the “irreparable” standard places more restrictions on thefundamental rights on defendants than the Constitution would permit. 120Conclusively, the Florida Supreme Court standard is highly unfavorable towardsdefendants. As previously mentioned, defendants can only try to exclude evidence if theidentification was unnecessarily suggestive by law enforcement. 121 Other factors, such asestimator variables are not taken into consideration in assessing unnecessarily suggestivepractices. Also, analysis can only be applied if the suggestion came from police conduct,the first prong does not account for unnecessary suggestion of private parties that mayfurther contribute to misidentification. 122 Moreover, the second prong analyzes the“totality of the circumstances” exclusively on the Biggers’ five factors, precluding anyother variables that may affect the eyewitness’s memory independent from unnecessarilysuggestive practices. Yet further, the defendant has to prove by the preponderance of theevidence that, based on the totality of the circumstance, the suggestive practices lead tosubstantial likelihood of irreparable harm. The result is a due process standard that ishighly skewed in favor of admissibility of eyewitness evidence even though it may behighly unreliable.III. RECOMMENDATIONSThe advancement and implementation of DNA testing have lead to post-convictionexonerations based on misidentification, like Frank Lee Smith. Unfortunately, hisexoneration came too late. Of the nine cases that the Innocence Project of Florida profiledon misidentification, all of the convicted were exonerated by DNA testing. 123 DNAtesting is not always viable in cases that the police cannot procure any genetic material. 124Additionally, judicial procedure, ineffective assistance of counsel, and other setbacksattribute to delays in access to DNA testing. 125 Smith for example, waited more thanfourteen years, through two evidentiary hearings, for post conviction DNA exoneration.ed.).117 Michael E. Allen, Florida Criminal Procedure: Chapter 7. Eyewitness Identification (2010118 Id. at § 7:11.119 Id.120 Id.121 Thompson, supra note 69, at 610-612.122 Id.123 Case Profiles, supra note 7.124 Id.125 Id.15

Pre-emptive, cost effective measures can be taken through the implementation of statelegislation to reform eyewitness identification at the law enforcement and judicial level.A. Law Enforcement Procedural RecommendationsThe adoption of legislation for uniformity and conformity in law enforcementprocedure can prevent false identifications. The Justice Project summarized a series ofrecommendations that years of research on eyewitness identification have indicated canprevent misidentification. These recommendations include cautionary instructions to theeyewitness, effective use of fillers in lineups and photo arrays, extensive documentationof the identification procedure, double-blind administrations, and sequential presentationof individuals in lineups.i. Cautionary InstructionsPrior to any identification procedure, law enforcement personnel should caution theeyewitness that the suspect may not be in the lineup or photo array and/or they might notappear as they did during the incident. Most eyewitnesses naturally expect that the policewould not conduct the identification procedure unless there is a suspect in the lineup orphoto array. 126For example, in an experiment of 200 eyewitnesses to a staged crime demonstratedthat without cautionary instructions 78% of the eyewitnesses’ attempted to identify asuspect in a culprit absent lineup. 127 The percentage dropped to 33% when the witnesseswere cautioned that the culprit might not be in the lineup. 128 The experiment alsoindicated with the cautionary instructions, 87% of the eyewitnesses made the correctidentification when the culprit was in the lineup. 129Thus, cautionary instructions reduce the inaccuracy rate of false identificationswithout reducing the number of true identifications. Instructions enable the eyewitness tomake a choice without an exerted pressure that they must make a choice.ii. Effective Use of FillersLineup and photo arrays are experiments that the police use to test their hypothesis ofthe suspect in a particular crime. As with any experiment, administrators must test theirhypothesis with variables in order to assess the accuracy of their proposed theory. Fillersare the variables that Police use in lineups and photo arrays. 130 Lineups or photo arraysshould be arranged with fillers that all have the same characteristics and that fit thedescription of the culprit. 131 Slight variations in individuals can lead the eyewitness to126 Wells et al., supra note 31, at 6-10.127 Id. at 11.128 Id.129 Id.130 See Wells et al., supra note 31, at 23-27.131 Id.16

unintentionally pick an individual based on that variant. 132 Also, if only one suspectmatches the description of the culprit, the eyewitness will most likely rely on theirrelative judgment and pick that individual, even if he is not the suspect, since thatindividual resembles the culprit relative to the others.For instance, experiments done in culprit-absent lineups have indicated that “the rateof selecting an innocent person who fits the description of the culprit increaseddramatically when others in the lineup did not fit the description . . . in addition, theconfidence with which the eyewitness identified the innocent person depended on theextent to which others in the lineup fit the description.” 133The line up or photo array should be composed of anywhere between six to twelveindividuals. This process will also reduce relative judgment in that the more choices inany given experiment the less the probability that the eyewitness would be able to guessthe correct answer. 134 This is especially effective on eyewitnesses with weak memoriesare those who are likely to pick the suspect based on mere guessing. 135Accordingly, effective use of fillers in lineups and photo arrays will reduce therelative judgment process as well as false confidence of the eyewitness.iii. Proper DocumentationPolice collect identification evidence because it is a vital part of every criminal case.The prosecution use identification evidence against a particular suspect or defensecounsel may use it to negate their client’s guilt. Surprisingly, the Florida legislature hasnot adopted a minimum standard for something as simple and essential as documentationof the identification procedure. In weighing evidence during a criminal trial, properdocumentation will assist the jury in assessing issues on eyewitness confidence, accuracyand policy suggestiveness.Complete documentation should include not just standard procedural forms, butconfidence statements and live recording of all interactions between law enforcementpersonnel and witnesses. 136 Assessing the witness’s confidence immediately after theidentification can demonstrate whether his or her confidence level was affected by postidentification police feedback. 137 Post-identification feedback can lead to a level ofconfidence that does not necessarily correlate with accuracy. Live documentation canillustrate for the jury the type of line-up or photo array utilized by law enforcement andwhether absent verbal or non-verbal cues, the procedure itself was faulty or suggestive.Meticulous and uniform documentation standards are essential since mock jury132 Id.133 Wells et al., supra note 31, at 12.134 The Justice Project, Eyewitness Identification: A Policy Review, 5 (2007).135 Id.136 Id. at 6.137 Id.17

experiments indicate that about four out of five mistaken identifications were believed bymock jurors based on the confidence of the eyewitness at trial. 138iv. Double-Blind Lineups and Photo ArraysIn double blind administration of lineups and photo arrays, the administrator isunaware of the identity of the suspect. Studies indicate that when the administrator hasknowledge of the identity of the suspect in the lineup they can intentionally orunintentionally lead the witness to the suspect through verbal and non-verbal cues. 139 “Acue can be a statement to the witness or even an administrator’s posture or facialexpression. 140 Verbal and non-verbal cues are examples of suggestive procedures that cansuggest to the witness where a suspect is in the lineup. 141 Consequently, the observer in adouble blind test has to rely solely on recollection without law enforcement implication.v. Sequential Line UpsOne of the most effective ways to reduce eyewitness error is through the use ofsequential lineup as opposed to group lineup techniques. “A sequential procedure is onein which the eyewitness views one lineup member at a time, deciding whether or not thatperson is the culprit before seeing the remaining line up members.” 142 Having the viewthe line up suspect one at time requires the eyewitness to rely less on their relativejudgment and more on the absolute judgment. 143 “A sequential lineup is more likely toprompt the eyewitness to compare each participant in the lineup to the eyewitness’smemory of the perpetrator of the crime (i.e. make an absolute judgment), rather thancompare the participant to each other (i.e. make a relative judgment).” 144 It is vitalhowever, that sequential lineups should be conducted through blind administration.[R]esearchers have shown that the sequential presentation, if implementedin tandem with the double-blind procedure, results in fewer falseidentifications. It is important to note that if the administrator is not“blind,” however, the sequential procedure can actually produce higherrates of false identifications, as witnesses may be more susceptible tounintentional feedback from the administrator when considering onelineup member at a time. 145In essence, the sequential technique relieves external pressure on the eyewitness tomake the selection based upon external pressures like law enforcement, friends, andrelatives as well as internal pressures of feeling like a failure if they do not chose asuspect.138 Id.139 Id.140 Id. at 7.141 Wells et al., supra note 31, at 12-13.142 Id. at 13.143 Id.144 Id.145 The Justice Project, supra note 133, at 7.18

B. Judicial RecommendationsLegislative adoption of procedural rules in law enforcement practices will onlypartially alleviate the eyewitness misidentification. The state judiciaries are charged withensuring that every defendant receives the procedural and substantive due process of thelaw ensured by the Constitution. Federal courts apply the Brathwaite analysis as theConstitutional minimum required for identification evidence at trial. Although statecourts cannot adopt rules that are more restrictive on Constitutional rights of thedefendant, they can adopt more restrictive rules on government practices in keeping withthe Constitution. Two methods the judiciary can adopt to assure proper procedure is the“Per Se” rule to exclude highly suggestive evidence and an independent source ofanalysis for identification evidence.i. “Per Se” Rule of ExclusionThe adoption of a procedural “Per Se” rule would exclude all identification evidencethat was a result of highly suggestive police practice. 146 In Brathwaite, the SupremeCourt rejected this idea, reasoning that it would result in the loss of valuableidentification evidence. 147 The Supreme Court theorized that the highly suggestivepractices can still produce reliable evidence and the two-prong analysis would serve asadequate deterrence to suggestive practices. 148 However, the Supreme Court did notaccount for the fact that suggestive evidence “can produce false identification, it candistort a person’s memory of the events, and it can artificially heighten the witness’sdegree of confidence in the identification.” 149 Thus, once the states adopt lawenforcement practices that reduce identification mishaps then the courts should be alsoimplement the “Per Se” rule and exclude all suggestive evidence.Several different states have already taken the initiative of adopting this type of rulebased on extensive studies and research indicating the damage that can result when suchevidence is admitted at trial. 150 The effect is that,[O]ver time, a per se exclusionary rule for unnecessarily suggestiveidentification practices tends to create through a case-by-case method, aset of best practices, although it does so in reverse fashion. By indicatingdisapproval of certain practices, the courts implicitly require police to dothe opposite, thus effectively creating a set of rules for obtainingidentification evidence in a non-suggestive manner. 151146 Thompson, supra note 69, at 612147 Id.148 Id.149 Id. at 611.150 Id. at 621-627.151 Thompson, supra note 69, at 624.19

Therefore, to guarantee a sufficient level of deterrence, the state judiciary shouldadopt the “Per Se” exclusionary rule for identification evidence.vi. Independent Source of Identification AnalysisAn independent source for identification analysis requires the liberal admittance ofexpert testimony with respect to the psychological factors that effect the eyewitness’sidentification. 152 Most state courts do not allow for expert testimony to assist the jurors inevaluating the reliability of the eyewitness identification evidence. 153 Most state courtsexclude expert testimony because of the trial court’s reliance on cross-examination tohighlight matters relating to reliability. 154 “Unfortunately, cross-examination is not aneffective means of making jurors aware of some of the counterintuitive facts relating toeyewitness identification accuracy” 155 that expert testimony could convey about theevidence. Accordingly, expert testimony would assure admission or exclusion ofidentification evidence by corroborating the reliability of the eyewitness.IV. COST-BENEFIT ANALYSISThe benefits of adopting procedural safeguards for identification far outweigh thecosts. The largest cost that States would incur in implementing these recommendationsare relatively economical compared to the cost that would be incurred from processing aninnocent suspect through the system, or the restitution afforded to the innocent once theyhave been released. On the same note, there is a high emotional stake for the victims orrelatives of the victims when an innocent person is incarcerated whilst the guilty go free.The most expensive cost of implementing these particular recommendations isassociated with the double blind identification procedure and expert testimony. Withproper implementation, even these types of costs can be curved to save taxpayers moremoney than to incarcerate the innocent.For example, the administration of double blind testing would simply involveutilizing different law enforcement personnel than one involved in the investigation ofthat particular crime. 156 For police departments, this simply means shifting theresponsibility of administration of the procedure to a capable officer of whom the identityof the suspect has not been revealed. 157 It requires only some additional training for anyofficer who would only share in the responsibility of administering these types ofexperimental lineups.Furthermore, once minimal safeguards are implemented at the enforcement level,there will be less need for the use of expert testimony since jurors will be able to weigh152 Id. at 627-631.153 Id.154 Id..155 Id.156 The Justice Project, supra note 133, at 8.157 Id.20

documented evidence. 158 Additionally, judicial safeguards are just a matter of discretionand instruction. Courts that exclude unreliable eyewitness testimony can save judicialresources not only through proper convictions but also through retroactive deterrence inthe investigative process.Consequently, the benefit of implementing these recommendations is an overallsavings in tax dollars. The benefits include savings in incarcerating the guilty instead ofthe innocent, savings in exoneration expenses, savings in civil suits for restitution againstthe state, savings in emotional damage to the victims, savings in expenses incurred toprosecute the innocent, and savings in years lost to the innocent. 159 Thus, the overallbenefits outweigh the burdens of implementing a few cost efficient safeguards.CONCLUSIONThere is a fundamental need for improvement with respect to the collection and use ofidentification evidence. Research has indicated that of the first one hundred and thirtyDNA exonerations, about one hundred and one of the exonerated were wrongfullyconvicted as a consequence of to eyewitness testimony. 160 These statistics are particularlyastonishing and demonstrate the need for uniform statewide improvements of techniquesand regulations across all the channels and instrumentalities of the criminal justice systemin Florida. Minimal procedure safeguards cannot only ensure that miscarriages of justicelike that of Frank Lee Smith are prevented but also the additional savings for the state.Finally, implementing these regulations come at little cost, since they require very littleexpenditure and require an only more detail oriented, meticulous identification processwith firm consequences as deterrence.158 The Justice Project, supra note 133, at 8.159 Id.160 Id.21