States Seek To Tighten Rules On Eyewitness Identifications

Associated Press Writer

FRANKFORT, Ky. (AP) - Herman May spent more than 13 years in prison after a woman identified him as her attacker in a sexual assault.

The identification in 1988 came even though the 17-year-old May had bright reddish-orange hair and looked little like the tall, thin, dark-haired man in his mid-20s identified as the attacker. May was convicted of rape in 1989 and sentenced to 40 years in prison - until DNA evidence showed in 2002 that he didn't commit the crime.

Cases like May's prompted proposed legislation that would have Kentucky join a growing number of states and cities across the country in standardizing how eyewitness identification is handled, with the goal of eliminating mistaken eyewitness identifications.

Eight states, including Maryland, North Carolina, West Virginia and Vermont, passed legislation last year reforming eyewitness identification procedures. In 2006 and 2007, 32 bills dealing with the issue were introduced in 17 states. Kentucky was one of six states considering proposals this year, according to the National Conference of State Legislatures.

Defense lawyers and legal groups across the country are pushing more states to adopt regulations for eyewitness identifications.

About 75 percent of the 215 people freed from prison based on DNA evidence, including May, were convicted on eyewitness identifications, said Gary Wells, an Iowa State University professor who has studied the issue for three decades.

"There really are things we can do ... to change things to make it better," said Marguerite Thomas, an assistant public advocate in Kentucky and May's attorney.

Police rarely use live lineups anymore, giving way to easier to transport and more technologically advanced methods. These days, photo lineups, also called "photo packs," or a "show up" lineup are the choice when trying to have a victim or witness identify the person who committed the crime.

A photo lineup is a collection of photos of six similar looking people put into an array and shown to the victim. Usually, if there's a suspect, his photo is among those shown. The photo selection is based on a description given by a witness or the victim.

A "show up" lineup involves bringing a victim or witness in a car to a scene where a suspect is and having the victim or witness make an identification. Nearly none of the process is documented.

The process leaves open the possibility that police are unknowingly giving hints to the person viewing the lineup or that the witness will make a "look alike" pick, Wells said.

"It's not really recognition," Wells said. "When the real perpetrator isn't there, there's always someone who looks more like the real perpetrator than the others. That person is at great risk."

State Rep. Kathy Stein, who is sponsoring Kentucky's legislation, said misidentifications usually aren't malicious.

"It's just human weakness with eyewitness identification," Stein said. "We feel the need to pick somebody."

Stein's proposal appears to have little chance of passage this year, but it's backers are promising to bring it up again in future sessions. The bill was based in part on recommendations by the Innocence Project, a nonprofit organization that tries to free wrongly convicted prisoners. It would require witnesses to describe the person in writing before a lineup or photo identification, it would require pictures to be shown one at a time rather than all at once and it would require police to get a statement of how confident the witness is in the selection made.

"I think everybody is recognizing that the way things are being done is because its been done that way historically," said Stephen Saloom, policy director for The Innocence Project. "This helps police focus on the right person."

Police agencies have been generally receptive to recommendations and laws similar to Stein's bill. The International Association of Chiefs of Police incorporated many of the recommendations into its policy papers that are sent out to police agencies.

Margie Long, a spokeswoman for the Virginia Beach, Va., Police Department, said the recommendations were adopted three years ago and have improved police work by taking away bias in putting together photo lineups.

"We've added a great deal of credibility to our line-up process," Long said.

Maj. Dave Wood, who heads the Criminal Investigative section for the Louisville police department, said the measures in Stein's bill all appear to help police work and be easy to implement.

"I don't see anything earth shattering about it," Wood said.

To May, who landed in the photo lineup because of a juvenile arrest, the earth shattering part was being picked by a sexual assault victim. May hopes enough will be done to keep someone else from losing 13 years of their life in a case of mistaken identity.

"I don't think I'll ever get over it," May said. "It's going to be with me forever."

(Copyright 2008 by The Associated Press. All Rights Reserved.)

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