Photo line ups are flawed

June 02, 2011

The credibility of photo lineups in Florida criminal proceedings has come under recent attack both from the legislature and the Innocence Project of Florida, a non-profit organization, that works to overturn wrongful criminal convictions. The organization sometimes solicits the assistance of Miami criminal defense lawyers. According to the Innocence Project, eyewitness misidentification accounts for over 75% of all wrongful criminal convictions nationwide. The issue gained particular prominence in Florida after the release of Derrick Williams on April 4 of this year. Imprisoned for sexual battery since 1992, Williams was convicted following an eyewitness identification. He was released from prison when DNA testing conclusively eliminated him as the assailant.

A large number of variables can affect the reliability of witness identification during a photo lineup, such as, how much the witness learns about a particular suspect in custody; the actions and attitudes of the police officers administering the lineup that might cause a witness to feel pressure to make an identification; and, of course, the quality and the nature of the pictures themselves. Flawed line-ups have sent defendants to prison on very serious charges such as armed robbery and various sex crimes. In February of this year, Republican Senator Joe Negron of Palm City and Democratic Representative Perry Thurston of Ft. Lauderdale, submitted separate bills calling for a massive overhaul of witness identification procedures in the State of Florida. The bills received the support of criminal attorney from state's public defender offices, the American Civil Liberties Union and the Innocence Project of Florida.

Among other proposed changes these bills called for witnesses to be issued a disclaimer that would, inter alia, warn the eyewitness that the suspect might not be in the photo array; make clear that the witness does not have to identify someone; and, that the investigation of the crime will continue with or without a photo lineup identification of a suspect. If police do not follow this new protocol, a jury or judge could take that into consideration when determining the reliability of an eyewitness identification.

Though both bills have failed to prosper, their basic proposed provisions have become the foundation for changes advocated by the Florida Innocence Commission, a statewide panel chaired by Chief Judge Belvin Perry Jr. Two weeks ago on May 16, the commission met at the Rosen Plaza Hotel in Orlando. Among their recommended changes were,

1) Reducing the suggestiveness of photo lineups by insuring no suspect in the pictures has overtly distinguishing characteristics, e.g., if the alleged perpetrator is of a certain race or color, that there not be just one or two photos of suspects of that race or color;
2) Procedures be administered in a "double blind" fashion, to wit, neither the witness nor the administering officer will know if the suspect, in fact, is in the photo lineup; and,
3) Pictures be shown one-by-one.

The commission has no official law-making powers. Absent, therefore, action by the legislature, the burden falls entirely on state and local law-enforcement agencies to implement the proposed changes. As expected, law enforcement officials are hesitant to embrace the reforms. Charlotte County Sherriff, Bill Cameron, acting as a representative of the Florida Sheriff's Association, charges that these changes send the wrong message to the community, specifically, that law enforcement "should not be trusted." Photo lineups have long been a hallmark of criminal convictions. Challenging their reliability could have a profound effect not only on how criminals are prosecuted, it could complicate convictions of persons already imprisoned by opening the door to appeals. Law enforcement agencies have said that such bills or changes are unnecessary and even redundant as these agencies already have underway new guidelines that would require similar protocols.

Florida Legislature Looks at Better Criminal Identification Procedures, Digital Journal.com, May 8, 2011.