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Bar News - June 17, 2015

NH Attorney General Announces New Eyewitness ID Policy

Innocence Project and Police Chiefs Association Collaborated in Launch of Best Practices

Photo caption: From left to right: Norwood, Mass., Police Chief Bill Brooks, a national expert on eyewitness ID; Amshula Jayaram, state policy advocate at the Innocence Project; Ann Rice, NH deputy attorney general; Richard Crate, Enfield police chief and president of the NH Association of Chiefs of Police and Denise McWilliams, executive director of the New England Innocence Project.
Representatives from the Innocence Project were in New Hampshire earlier this month as part of the launch of a new model policy at the NH Attorney General’s Office related to eyewitness identification.

The evidence-based best practices in the model policy are designed to reduce the likelihood of misidentification, the leading contributing factor to wrongful convictions. Misidentification by eyewitnesses played a role in 72 percent of the 329 DNA exonerations nationally, according to the Innocence Project. These best practices are recommended by the National Academy of Sciences, the International Association of Chiefs of Police, the Innocence Project and many other organizations.

“Eyewitness identification evidence is an important law enforcement tool, but because of the fallibility of human memory and recognized problems with commonly used procedures, this office decided to publish a model policy it feels will equip law enforcement with the best practices necessary to protect against misidentification,” Deputy Attorney General Ann Rice said at a press conference June 1.

The attorney general’s model policy contains step-by-step instructions for conducting a number of eyewitness identification practices, namely:

  • Blind administration of photo and live lineups. The officer conducting a photo or live lineup does not know the identity of the suspect, or cannot see which photo the eyewitness is viewing, through a practice known as the folder shuffle. This prevents any unintentional cues, which might prompt an incorrect identification.
  • Fillers. There should be at least five fillers, and no filler should stand out; the fillers should all resemble the witness’ original description of the offender.
  • Instructions. The eyewitness should be instructed that the suspect may or may not be in the lineup and that the investigation will continue regardless of whether a selection is made; this way the eyewitness does not feel pressured to make a selection.
  • Confidence statement. If the eyewitness does make a selection, the officer shall write down a verbatim confidence statement immediately after the identification is made. This will help investigators and juries determine the level of the eyewitness’ confidence.

NH Attorney General Joseph Foster and the NH Association of Chiefs of Police worked collaboratively to publish the new eyewitness identification model policy.

“No police department wants to contribute to a wrongful conviction; these best practices will help reduce the likelihood that anything like that will occur in the future. As law enforcement, we are committed to using the best investigative tools out there and to making sure that we get the right guy.” said Richard Crate, chief of Enfield Police Department and president of the New Hampshire Association of Chiefs of Police.

Connecticut, Rhode Island, Vermont and Massachusetts, have also embraced eyewitness identification practices, making New England a leader in these efforts. Nationally, 13 states have adopted eyewitness identification reform, through legislation or court action, and this number is steadily growing.

“By embracing scientifically supported eyewitness identification practices, New Hampshire has taken a major step in working to prevent the leading contributing factor to wrongful conviction – misidentification. Attorney General Foster and the New Hampshire Association of Chiefs of Police should be applauded for working collaboratively to create this excellent model policy,” said Denise McWilliams, executive director of the New England Innocence Project.

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