Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
Three years ago, NACDL filed a Freedom of Information Act (“FOIA”) lawsuit to compel the Chicago, Evanston, and Joliet police departments to release the underlying data relating to the design and implementation of an Illinois study that has impeded eyewitness identification reform. NACDL recently won a major victory in the case.1
In the March 2007 issue of The Champion, this column discussed how the Illinois study cast doubt on the efficacy of sequential double-blind identification procedures.2 A growing body of research shows that the use of these procedures reduces the risk of misidentification, one of the leading causes of wrongful conviction. In a double-blind lineup the administrator of the lineup is unaware of the identity of the suspect, and therefore cannot engage in suggestive behavior, either intentionally or inadvertently. In a sequential lineup, the witness views each individual separately, minimizing the risk that the witness will make a comparative identification, selecting the individual who most resembles the perpetrator. The Illinois study is formally known as the Report to the Legislature of the State of Illinois: The Illinois Pilot Program on Sequential Double-Blind Identification Procedures, but is more commonly referred to as the Mecklenburg Study. It confounded reform efforts with its conclusion that existing police lineup practices, including non-blind simultaneous lineups, produced higher suspect identification rates and lower filler picks than did the double-blind sequential lineups recommended by many scientists.
NACDL sought the underlying data, including photographs and recordings of the arrays and lineups, training protocols, and the complete database of information used to support the report, so that independent experts could analyze the Illinois conclusions. Through months and months of litigation, and every reasonable effort to narrowly limit the requests to address any legitimate security concerns, the Chicago and Joliet police departments steadfastly refused to disgorge the information necessary to independently assess the validity of the controversial study. The trial level courts upheld their position. Only the Evanston Police Department was willing to compromise. Early in the litigation, that department agreed to provide the requested documents with appropriate redactions.
On February 25, 2010, in a consolidated opinion of the cases against Chicago and Joliet, the Appellate Court of Illinois, First Judicial District issued a sweeping reversal of the lower court decisions limiting NACDL’s access to the critical data. As maintained throughout by NACDL, the court ultimately found that there is a “vital public interest in the disclosure of these documents.” The court rejected the notion that it would be unduly burdensome to redact open investigation files and noted that “the burden is on the police agencies to demonstrate on a case-by-case basis how a particular witness could be in danger or an investigation compromised if a document is disclosed in which all identifying information has been redacted.” Similarly, the court held that photo arrays with identifying information redacted are also not exempt from disclosure.
The court concluded that “the public interest at stake in obtaining [the identification histories] is significant, both for the people of Illinois and for people across the country who are considering the results of the Illinois study.” In so doing, the court got right to the heart of why NACDL undertook this battle:
Wrongful convictions on the basis of mistaken identification impose a huge cost on society in addition to the cost imposed on the individual who is wrongfully convicted. One such cost that has not been highlighted in the affidavits or briefs is that if the wrong person is convicted, the actual perpetrator is still at large and continues to pose a danger to society. If an examination of the data used in the study confirms that the results were correct, it allows researchers to focus on other possible methods of reform for identification procedures. If, however, an examination of the data discloses flaws in the study methodology or design, reform based on the sequential, double-blind identification procedures is still a possibility in Illinois, as well as in other states that have been considering such reform.
Whether the Chicago and Joliet police departments will attempt to block access to the crucial data by seeking an appeal to the Illinois Supreme Court remains to be seen. But this much is clear: the data will be illuminating. As noted above, Evanston reached agreement with NACDL and released the essential information. Professor Nancy K. Steblay, a social psychologist at Ausburg College in Minneapolis with expertise in eyewitness identification, serves as NACDL’s pro bono consultant on this project. Professor Steblay analyzed the data provided by Evanston, which included case files from 100 field identification tests.3 She found that the Evanston files provide empirical evidence that the methods employed by the police created circumstances that favored the non-blind simultaneous lineups.4 Even absent the data from Chicago and Joliet, these methodological flaws cast doubt on the conclusions reached by the Illinois study. Release of the remaining data will finally enable the criminal justice system to pursue one of the two paths identified by the Illinois appellate court: either seek new ways to combat the tragedy of misidentification or move forward to implement the promising sequential, double-blind procedures.
- The pleadings, appellate briefs, and appellate court decision (National Ass’n of Criminal Defense Lawyers v. Chicago Police Dept., Ill. App., No. 07 CH 3622) are available at http://www.nacdl.org/sl_docs.nsf/Issues/eyewitnessid?OpenDocument.
- Norman L. Reimer, Obtaining Underlying Data From the Illinois Report, The Champion, March 2007 at 43.
- Nancy K. Steblay, What We Know Now: The Evanston Illinois Field Lineups, Feb. 23, 2010, Law & Hum. Behav., http://www.springerlink.com/content/p32563535568m504.
- A condensed version of Professor Steblay’s analysis will be published in an upcoming edition of The Champion.
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