Eyewitness Evidence: Will the United States Guide for Law Enforcement Make Any Difference?
| Published date | 01 December 2003 |
| Date | 01 December 2003 |
| DOI | http://doi.org/10.1350/ijep.7.4.237.21942 |
| Subject Matter | Article |
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 237
UNITED STATES GUIDE FOR LAW ENFORCEMENT
T
(2003) 7 E&P 237–263
Eyewitness evidence: Will
the United States
Guide
for Law Enforcement
make any difference?*
By Ian K. McKenzie**
Director, Mandala Associates
Abstract. The publication in the United States of Eyewitness Identification: A Guide for
Law Enforcement Officers (TWGEYEE, 1999) is a significant development in seeking to
deal with miscarriages of justice, based on erroneous identification, in all 50 states
of the Union and at a Federal level. However, its development barely acknowledges
the existence of more than 40 years of case law and legislation in England and
Wales. In addition, the contents of the Guide are advisory only and failure to comply
with them carries no sanction. This article compares the content of the Guide with
the mostly mandatory requirements of English law. It argues that, in the face of
some of the negative aspects of police culture and the problems associated with
the external imposition of controls on policing, the Guide is not likely to be either
accepted, or successful. In addition, it is argued that the parochialism of an approach
that ignores both research and efforts and extant administrative controls in other
comparable jurisdictions is both unwise and unscholarly.
Introduction
he purpose of this article is to consider, using comparative material, the
likely effect of the introduction of the document Eyewitness identification:
A Guide for Law Enforcement Officers (TWGEYEE, 1999). That document seeks
to provide for police and others in the United States, who are charged with the
responsibility of investigating criminal offences, information, advice and
* A revised version of a paper presented at the Harvard Law School conference ‘Wrongful
Convictions: A Call for Action’, 19–20 April, 2002. The author would like to thank Professor
Stanley Z. Fisher of Boston University School of Law for comments on an earlier draft.
** Chartered forensic and occupational psychologist. Formerly Staff Psychologist to Fort Worth
police department; formerly Hon. Secretary of the Division of Forensic Psychology of the British
Psychological Society; formerly Chair and Secretary of the International Section of the Academy
of Criminal Justice Sciences (ACJS) in the United States. Until 2002, Principal Lecturer in the
psychology of policing at the University of Portsmouth, United Kingdom. Mandala Associates,
PO Box 119, EX8 4WZ, England. Tel: 44(0) 1395 273502. E-mail: ian.mckenzie@mandala-
associates.com.
238 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
UNITED STATES GUIDE FOR LAW ENFORCEMENT
instruction about how best to ensure that accurate eyewitness identification
leads to a justifiable decision that the suspect arrested is the culprit who
committed the offence. It is set against a background of growing concern about
miscarriages of justice in the United States (see, for example, Scheck, Neufield
and Dwyer (2000)).
In order to consider the efficacy of what will be henceforward referred to as the
‘Guide’, consideration will be given to the background and rationale for the
existence of a Code of Practice in England and Wales (HMSO, 1984) which, since
1984, and through a number of iterations, has controlled and guided police
identification evidence gathering.
The article also serves as a vehicle for an examination of published documents
introducing and supporting the American Guide (for example, Wells, Malpass,
Lindsay, Fisher, Turtle and Fulero, 2000). Wells and his colleagues are, perhaps
not surprisingly, enthusiastic about their reliance on ‘scientific research’ (by
which they mean principally empirical, psychological research), but are less than
fulsome in their recognition of the extent to which psychological research has
informed developments in England and Wales, or about the extent to which,
over many years, administrative controls and directives have sought, in England
and Wales, to deal with the same issues. This article examines the extent to which
the police may be expected to conform to guidelines in the absence of sanctions,
and discusses the repeated failure of academic researchers in the United States
to take account of British research and its application in the criminal justice
system.
Historical background in England and Wales
Before examining the proposals in the American Guide, some background to the
identification requirements in English law should be outlined.
On 8 April 1974, the Home Secretary announced in the House of Commons his
decision to grant a free pardon to Mr Lazlo Virag (who had been arrested and
convicted in 1969 of theft, using a firearm to resist arrest and committing grievous
bodily harm on a police officer) and also drew attention to the case of Mr Luke
Dougherty, arrested in 1972 and convicted in February 1973 for shoplifting.
Dougherty’s conviction had been quashed by the Court of Appeal in March 1974.
Both the decision to grant a free pardon to Virag, and Dougherty’s successful
appeal had been based upon doubts about eyewitness identification and the Home
Secretary announced his intention to appoint a committee to enquire into the
law and procedure relating to identification. With immediate effect, Lord Devlin,
a senior judge, was asked to conduct an enquiry (the Devlin Committee) which
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