20/20 hindsight: When witnesses fail

People wrongly convicted by witness testimony have been freed in recent years.
Thursday, May 6, 2004 | 12:00 a.m. CDT; updated 5:59 p.m. CDT, Saturday, July 19, 2008

In 1986, Lonnie Erby, a 32-year-old auto worker, was convicted in St. Louis of raping three teenage girls and attempting to assault two others. Despite testimony that he was elsewhere at the time, Erby was identified as the attacker by four of the five victims, who had viewed both photographs and live lineups of possible suspects.

Erby was sentenced to 115 years in prison. He served 17 years, until August 2003, when an analysis of DNA evidence collected at the crime scenes proved what some experts have long suspected: eyewitnesses often are wrong.

Erby is one of more than 140 people, including three other Missourians, who were released from prison after post-trial DNA analysis proved they were convicted of crimes they did not commit, according to the Innocence Project, a nonprofit legal clinic founded by attorneys Barry Scheck and Peter Neufeld.

Most of the suspects — about two-thirds — were convicted largely on the testimony of prosecution witnesses who, it turned out, were mistaken.

“Either the real perpetrator is Lonnie’s identical twin,” said Vanessa Potkin, an Innocence Project attorney who worked on Erby’s case, “or there was something suggestive in the lineup.”

Columbia attorney Stephen Wyse questions the reliability of eyewitness testimony, especially when suspects are identified from live police lineups. “People want to help out law enforcement and get the bad guy off the street,” Wyse said. “So they will choose the person most like the perpetrator in a lineup.”

In 2002, Wyse wrote a bill, sponsored by Rep. Vicky Riback Wilson, D-Columbia, that would impose stricter regulations on live and photographic identifications by witnesses. The bill was presented in both houses of the General Assembly in 2002 and again last year, but did not make it out of committee. Wilson, who is serving her last term in the House, introduced the bill again this year. But with time running out in the current session, the legislation, called the Integrity of Justice Act, might die again.

“I haven’t talked to anyone who is totally opposed,” Wilson said. “But these are just big changes, and that can take time.”

One opponent, however, is Capt. Marvin McCrary of the Columbia Police Department. He said the Integrity of Justice Act would further complicate a difficult job.

“It seems like we’ve got laws on us all the time, trying to help criminals stay on the street while we’re trying to keep them off,” McCrary said. “All (this bill) does is restrict the police more, and officers have enough to deal with on the street as it is today.”

Law would change police procedure

The changes proposed by the act would have the greatest impact on how police gather evidence from witnesses. It would eliminate the traditional police lineup, whereby a group of people are viewed together as potential suspects. Instead, witnesses would be asked to view them one at a time. To ensure that witnesses are not unduly influenced by investigators, officers administering live or photo lineups would not be allowed to know the identity of the suspects in the lineup.

Sgt. Stephen Monticelli, an investigative supervisor with the Columbia Police Department’s major crimes unit, said in smaller departments, such as Columbia’s, “everyone knows who the suspect is.” Moreover, once crime victims become comfortable with a particular investigating officer, the department is reluctant “to throw in another one at a stressful time.”

Columbia police usually rely on photo lineups rather than live ones. A photo lineup typically consists of a picture of the suspect and about five “filler” photographs of people who are similar in appearance. Most Columbia officers already prefer to show suspects’ pictures to witnesses one at a time, Monticelli said.

“We don’t want (witnesses) making comparisons, and we don’t want them making a choice unless they’re 100 percent sure,” Monticelli said. “We ask that they look at each (picture) carefully and tell us if they can identify a suspect.”

Since the 1970s, psychological researchers have been concerned about the accuracy of eyewitness identification. A recent review of scientific literature on the topic, by Gary Wells and Elizabeth Olson of Iowa State University, found that numerous factors, including age and gender, can influence whether a person correctly identifies a perpetrator.

Women are slightly more likely to be correct, but also more likely to make a choice, than men, the researchers found. Children and the elderly are consistently less accurate, as are unsuspecting victims compared to those who were paying close attention when the crime occurred. And witnesses who identify a suspect right away are more likely to be correct than those who hesitate. As for the suspects, the better looking or the less attractive they are, the more likely they will be correctly identified by a witness.

Nothing to hide

The Columbia Police Department’s interview rooms aren’t the overheated chambers, lit by bare light bulbs, of old crime movies. They contain a table and a few lightly cushioned, albeit mismatched, chairs. The only visible police touches are a heavy metal ring protruding from the wall, for handcuffing violent suspects, and a video camera mounted high in a corner.

The Integrity of Justice Act would require Missouri law enforcement officers to videotape interrogations of felony suspects from the moment they sat down in the interview room. That would represent a departure from the way Columbia police handle interrogations. Monticelli said local investigators routinely talk to suspects, sometimes for hours, before switching on the video camera. A five-minute statement is often preceded by more than 12 hours of mistruths, Monticelli said.

“Most of the time, suspects are ready to get things off their chests, but rarely do they admit to things right away,” Monticelli said. “There’s no coercion involved off-camera. By not taping, we just get rid of all the BS.”

McCrary said Columbia police use interrogation techniques, including “certain language” that courts have approved. “You can’t promise them anything,” he said, “but you can lie to them, tell them you’ve got video of them when you’ve really got nothing. You don’t know how many confessions I’ve gotten that way.”

Wyse said that if police officers always followed the law, they wouldn’t object to more transparency in the interrogation room. “Some tricks cops have learned, they don’t want recorded,” he said. “And prosecutors like vague standards for police, because if the standards are clearly violated they will have a problem getting a conviction.”

Stricter standards might have prevented the false identification of Lonnie Erby, Wyse said. After showing uncertainty, eyewitnesses in his case were permitted by police to confer with each other. While Erby is back to work at the auto plant, Wyse and other supporters of the Integrity of Justice Act say such tragic mistakes will continue unless police and prosecutors are held accountable for the evidence they present at trial.

However, the changes proposed by the act could be a hard sell, said Rod Uphoff, associate dean at MU’s School of Law. Any bill that strengthens the rights of criminal defendants can make lawmakers appear soft on crime.

“But these changes are not just defense-oriented,” Uphoff said. “They would benefit the whole system to make sure it’s doing what it’s designed to do — imprison the guilty and free the innocent.”

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