Suspect lineups in McLennan County are nothing like those in TV crime shows.

Instead of lining up people behind a two-way mirror, area departments rely on photo lineups and sometimes showups, where a witness is asked to identify a suspect on the spot near a crime scene.

Most of the local departments interviewed by the Tribune-Herald don’t have written policies for how suspects are identified.

That situation concerns criminal justice experts who think outdated practices can lead to witnesses accusing the wrong person of a crime.

And one of the methods of witness identification most criticized by people who support reforming and unifying eyewitness policies also is commonly used in the area.

Valorie Settles, a records employee at the McLennan County Sheriff's Office, works on her computer assembling photos of suspects for use in eyewitness identifications.
Duane A. Laverty / Tribune-Herald

Some area departments closely follow science-backed guidelines recommended by the U.S. Department of Justice, but most would be forced to change policies, should the Texas Legislature endorse bills prefiled by Sen. Rodney Ellis, D-Houston, and Rep. Pete Gallego, D-Alpine.

The bills, based on recommendations made by a state panel, would require all local departments in the state to follow certain rules when asking a witness to identify a suspect.

Waco Police Department was the only agency interviewed by the Tribune-Herald that reported it follows the recommended guidelines, although the department does not have written policies for all the guidelines.

Other departments, including McLennan County Sheriff’s Office and Bellmead, Crawford, Hewitt, Lacy Lakeview, Lorena, Waco and Woodway police departments, would be required to change their policies, if the legislation were endorsed. All but Woodway would be required to create written policies for the department.

They’re not alone. In a state survey, only 12 percent of 1,038 responding agencies had written policies about eyewitness identifications.

In Texas, 41 people have been freed from prison after being wrongfully convicted. Out of those cases, at least 35 involved witnesses incorrectly identifying a suspect shown in a lineup.

“There’s always going to be ways and room to improve,” said Randy Plemons, McLennan County sheriff’s chief deputy. “Law enforcement is one of those things that’s always changing, always improving, and you have to stay up to stay on top of your game.”

Showup identifications

So-called showups — allowing a witness to view a single suspect shortly after a crime — are used by nearly every department interviewed by the Tribune-Herald , including the McLennan County Sheriff’s Office and Bellmead, Hewitt, Lacy Lakeview, Lorena, Waco and Woodway police departments.

With the exception of the sheriff’s office, most of the departments said they are used occasionally.

Robinson Police Department provided a copy of its policy through an open records request, but Robinson Police Chief Rusty Smith declined an interview.

Local officials said showups can serve in immediately identifying or ruling out a suspect.

Showups are used when officers find a person near a crime scene within a brief window of time — there is no hard and fast rule, but chiefs estimated anywhere between 20 minutes to an hour — who matches an initial description of the suspect.

Officers then ask the witness to make an on-the-spot decision.

They are problematic because they can lead a witness to more readily believe the person in custody committed the crime, said Walter “Skip” Reaves, a local defense attorney who has handled post-conviction work and criminal appeals.

“If someone is in custody . . . that kind of stacks the deck,” he said.

The state panel report did not address reforms for showups, an omission criticized by Sandra Guerra Thompson, a professor at the University of Houston Law Center.

No prefiled bills in the 82nd Texas Legislature tackle the topic either.

Thompson said in her report that the Dallas Police Department’s policy and recommendations made by the International Association of Chiefs of Police specify that showup identifications should never be used unless there is already probable cause to arrest a suspect.

Mark Parker, a senior prosecutor in the McLennan County District Attorney’s Office, acknowledged showups can be suggestive, but they are legal and admissible in court to help prove a lawbreaker guilty.

Rebecca Brown, too, a policy advocate for the New York-based Innocence Project, said there are cases when it can serve as a unique tool for law enforcement.

“Showups are intrinsically suggestive, but there are certain occasions when it is necessary for law enforcement officers to use them. It can be useful to law enforcement officers who don’t have probable cause to arrest,” she said. “The perceived benefits must be balanced against the inherent risks.”

Local law enforcement officials said officers must decide when a showup is necessary and appropriate.

Authorities from several departments said that while showups can be used to make an identification, photo lineups are preferred.

McLennan County Sheriff Chief Deputy Randy Plemons said the sheriff’s office often uses showups, but said the office has standards for when they can be used.

For example, deputies will not pick up a person near a crime scene who only partially matches a description; the suspect must fit the witness’ description exactly. Deputies also must be certain the witness is in a stable emotional state.

Waco Police Department sometimes uses showups, spokesman Sgt. Melvin Roseborough said, but it is difficult to gauge how often they are used, since it often is a decision made by an individual detective.

“There’s nothing that requires the detectives to keep stats on that,” he said.

Robinson Police Department has a written policy that follows recommendations made by the Innocence Project.

It requires officers to consider factors such as how well the witness was able to see the suspect before doing a showup.

The policy also requires that identifications are not made at the scene of the crime, and prohibits officers from showing the suspect either in a squad car or in handcuffs.

Doing so helps keep the identification fair, said Brown, the Innocence Project’s policy advocate.

“They really want to take measures minimizing inferences that a suspect is guilty,” she said.

Policies and training

Legislative reforms would require police departments to have written protocol for photographic and live lineups.

Out of the nine agencies, only three had some kind of a written policy for eyewitness identifications.

Open records requests found that Waco Police Department, for instance, provides a detailed policy outline of its step-by-step procedures for photo identifications, but keeps no policy on showups.

Robinson Police Department has detailed procedures for conducting showup identifications, but no written procedures for photo presentations.

Woodway Public Safety Department has written procedures for everything from a live lineup, photo array and showups to informal identifications, where officers bring the witness to a place where the witness can see the suspect without his or her knowledge.

McLennan County Sheriff’s Office and Bellmead, Crawford, Hewitt, Lacy Lakeview and Lorena police departments don’t have any written policies, officials said.

Departments instead bank on the field training of the officers, according to officials.

Procedures and photos

Locally, photo arrays are the most popular method of witness identifications, according to officials.

The digital mug shot database at the McLennan County Sheriff’s Office has made creating a photo array quicker and easier, area authorities said.

It’s also improved the fairness of photo arrays, because the database can retrieve images based on specific physical characteristics from a wider pool of people, according to officials.

The majority of the departments make the requests for the photo arrays through the McLennan County Sheriff’s Office, which fills as many as 150 such requests per month, Plemons said.

Each of the departments said they ensure there are no anomalies in a photo lineup that unfairly highlight the suspect. For example, if the suspect has a mustache, all the people in the photos will have a mustache.

All departments follow the recommended method of using a minimum of six photographs, which include a suspect, along with five “filler” photos of others who resemble the suspect, local authorities said.

The greatest disparity from the Department of Justice guidelines are departments using lineups where the witness is shown six photos at once instead of a technique requiring witnesses to see six photos one at a time, or sequential lineups.

With the exception of Waco Police Department, none of the other departments interviewed show photos one at a time, which is considered by DOJ as a “best practice.”

Scientific studies show conflicting results, but the majority of testing finds that revealing photos sequentially lowers the chances a witness will accidentally identify someone who did not commit the crime.

In sequential presentations, the witness can look at a photograph for as long as needed, but must make a decision about whether or not the person photographed is the suspect before moving on.

If the witness wants to see the photos again, the detective must shuffle the photos into a new order and show each photo individually again.

Scientists think showing photos one at a time cuts down on false identifications because witnesses are unable to compare photos.

When offered comparisons, scientists said, witnesses are likely to choose the photo that most closely resembles the suspect, even if the photo doesn’t completely match the description of the suspect.

Although the photo arrays compiled by area law enforcement appear to have good, fair composition, defense attorney Reaves said, there is still a human urge to select someone when presented with six choices.

“(A witness) wants to pick someone out,” he said. “They’re not doing it intentionally; they want to solve the case.”

Waco Police Department has used sequential photo lineups since 2008, according to its policy.

“We feel it is a more accurate way of doing this,” Roseborough said. “(It helps) avoid any biases by the witnesses . . . and it did seem like a better practice.”

Despite the precautions that can be taken to prevent faulty IDs, Woodway Public Safety Director Yost Zakhary said the value of an identification can come down to the integrity of the presenter.

“If the presenter doesn’t present it in a fair, unbiased manner, there is no technology or rules that will ever prevent (a bad ID) from happening,” he said.

Blind administration

Another proposed reform would tackle “blind administration,” meaning the person who shows the photos to a witness should not know which one is the suspect.

Studies have found detectives can clue witnesses to who they think the suspect is with unintentional cues, including nodding and subtle voice inflections.

McLennan County Sheriff’s Office has a strict policy on blind administration, Plemons said, not allowing the detective who is involved in the investigation to administer the photo lineup.

Waco PD, too, uses someone who is unfamiliar with the investigation whenever possible, Roseborough said.

“We make an effort at blind administration,” he said. “But if the witness is more comfortable with the lead investigator, the administrator will try to get a second detective in there.”

Other departments interviewed by the Tribune-Herald often use detectives involved in the case to conduct photo lineups, primarily because of practical issues, officials said.

“I have a limited staff. I don’t have anyone else to do that. It’s a manpower issue,” said Lacy Lakeview Police Chief Dennis Stapleton, whose department includes 15 sworn officers.

But all of the departments said officers provided cautionary statements to witnesses, explaining the suspect of an offense may not be included in a lineup and that witnesses shouldn’t feel compelled to pick a photo if they don’t see the perpetrator.

“Our ultimate goal is if they are innocent, prove them innocent, and if they’re guilty, prove them guilty,” Roseborough said. “We want to discover the truth behind what happened.”

Even if proposed reforms were implemented, defense attorney Reaves said there are no easy answers to resolve the inconsistency of identifications.

“The science behind them is pretty well established — they’re tremendously unreliable,” he said. “Some studies have got it at no better than 50-50 odds of finding the right person. . . . Even with all that, in my experience, people (on juries) still look at that (an identification) as the gold standard.”

An identification is only one piece to the puzzle, police said. Corroborative evidence is essential.

Reaves said he would like to see juries not lend so much weight to the identifications in certain cases.

“I think they ought to look at it pretty skeptically if there is nothing else to corroborate . . . or when the facts suggest an error,” he said. “You’re thinking about determining someone’s future based on someone’s opinion that they committed the offense. . . . Jurors are like anyone else. They want the case solved and they don’t want to disbelieve (a witness or victim).”

Although the necessity of eyewitness IDs is not as strong as it may have been 20 or 30 years ago, they remain necessary, senior prosecutor Parker said.

“This is not ‘CSI.’ This is McLennan County, Texas,” he said. “To think there’s going to be scientific evidence in every case, it just doesn’t happen that way.”

Following the guidelines

Newly elected McLennan County District Attorney Abel Reyna, who has pledged to work closer with law enforcement than his predecessor, acknowledged eyewitness identifications have the potential to be problematic. But he said local police departments are following required guidelines.

He rejected the notion that a case ever entirely hinges on a single eyewitness identification.

“Just because you have a single individual released upon DNA, you can’t discount the thousands and thousands and thousands of cases when convictions were supported and upheld with eyewitness identifications,” Reyna said. “Law enforcement officers have assured us (guidelines) will be followed, and they have been followed. Every identification has to be reviewed witness by witness in light of other evidence in the case.”

Reyna recognized that showup identifications have “created problems in the past,” but that when performed properly and with adequate discretion to decrease suggestiveness, he said they can be an invaluable tool at the disposal of police departments.

In the end, the reforms won’t ultimately address every shortcoming attached to identifications, he added.

“You can put as many strings on it, as many requirements as you want, in respect to eyewitness identifications, and you’re still going to have the same problems as you’re going to have now,” Reyna said.

kcrow@wacotrib.com

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