A measure that would streamline science-based methods for police asking witnesses to identify suspects in a photo lineup advanced at the state Legislature on Wednesday in an effort designed to cut down the chances of wrongful convictions.
A growing body of research in recent years has driven state and federal law enforcement agencies to change their practices on what makes a sound eyewitness identification. Minnesota is inconsistent — more than half of agencies say they have no written policies at all, according to a 2016 survey conducted by the Minnesota Chiefs of Police Association.
"If the wrong practices are used, a false memory can be created in the victim's mind of who the attacker was," said Julie Jonas, legal director for the Innocence Project of Minnesota, a nonprofit that has used DNA to exonerate hundreds of innocent people, at a hearing of the state Senate Judiciary Committee.
Jonas cited two cases in which mistaken identification sent the wrong men to prison for rape, and the victims retained the false memory of their attackers years later.
"In both of those cases, the suspect who was in prison was exonerated through DNA testing," she said. "The true perpetrator was found, and both of [the victims] were able to see that true perpetrator. But still, when they thought back on the night of the attack, they saw the person who was wrongfully convicted. That's what can happen if this is not done correctly."
The bipartisan bill, authored by Sen. Bill Ingebrigtsen, R-Alexandria, would direct the state's policing licensing board to create a uniform practice for all law enforcement in Minnesota. It would mandate that officers use a "double-blind" method to eliminate the chance of the tester giving the witness subconscious clues toward a photo. This means the officer administering the lineup wouldn't know the identity of the suspect and couldn't even see the photos.
The officer would instruct the witness that the suspect might not show up in the lineup at all. Non-suspect "filler" photos must resemble the suspect, to avoid officers padding the lineup with vastly unalike photos to direct the outcome. And the officer must record the level of confidence in the selection immediately after administering the test, rather than months later in court when memories are dimmer.
"There isn't any officer carrying a badge … that would want to make a false identification on any kind of criminal case," said Ingebrigtsen, who once served as Douglas County sheriff. "It absolutely would go against their thought process. I know law enforcement's under a lot of scrutiny lately, but this particular area here is very crucial."
Nationally, mistaken eyewitness identifications account for 71% of wrongful convictions overturned by DNA, according to the Innocence Project. In many cases, the real perpetrators continue to commit violent crimes while the innocent person sits in prison, sometimes for decades, waiting for the evidence to exonerate them.
Of the 71%, 42% were identified by a witness of a different race, according to the Innocence Project.
That was the case in 1985, when a St. Paul jury convicted David Sutherlin, a black man, of raping a white woman who identified him in a lineup. In 2002, Sutherlin was exonerated through DNA. The real assailant was also identified, but he couldn't be charged because the statute of limitations had expired.
Nancy Steblay, a professor of psychology at Augsburg University in Minneapolis and a leader in the research of eyewitness identification in the United States, said the bill represents a consensus of what makes sound science among experts in the field, vetted by the National Academy of Sciences. The rules are also practical for law enforcement to implement, she said.
"The combination of good science and a practice that works makes these very powerful recommendations," Steblay said.
Robert Small, head of the Minnesota County Attorneys Association, also appeared at the hearing to support the bill.
Nineteen states have already adopted best practices on witness identification. Some major law enforcement agencies in Minnesota already use best practices, though officers don't always follow those rules, a 2017 analysis by the Star Tribune found.
In one case, a Minneapolis police officer sent six photos to a witness via e-mail, making it impossible to gauge confidence. The lineup featured an array of suspects of different ages, races, hair colors and distinguishing features, such as facial hair and tattoos. In another case, a questionable lineup led to a wrongful arrest on a rape. The innocent man sat in jail for months before being cleared by DNA.
The committee sent the bill forward with little discussion. A companion bill in the House of Representatives has not yet been heard.