Eyewitness Testimonies and Mugs Shots
Any criminal lawyer – whether prosecution or defense – can tell you that eye witness testimony can sometimes be inherently unreliable. Identification of a suspect has resulted in many individuals being wrongfully imprisoned, exonerated only by the availability of new technology like DNA.
Identifications between races are particularly prone to error – up to 45 percent of the time, eye witness identification from a photo was wrong in one study. As a result, most police departments will use mug shot searches to identify suspects with extreme caution to mitigate the risks involved – but detectives in the NYPD use them regularly.
Most detective bureaus will not show any booking photos to witnesses until there is someone in mind as a suspect. At that point, investigators will usually do a ‘photo line-up’, where the suspect’s photo will be placed alongside at least five other ‘suspects’ who fit a similar physical description but are innocent of the crime in question.
That way, if the witness picks someone who is known to be innocent, then the police will understand that the identification is wrong, and will not arrest that person. In a mug shot search, then everyone becomes a potential suspect, and the person who is ultimately responsible may never make it into the group – but if the witness picks someone from the pack, then they will be the focus of the inquiry.
The chief of detectives in New York City defended the department’s use of mug shots, describing it as merely ‘a piece of the puzzle,’ and emphasizing the other tools the department uses, like surveillance footage and DNA evidence. But interviews and court testimony indicate that mug shot searches are still frequently used in criminal investigations.
The practice is problematic not just because of eye witness memory and reliability. It is also particularly vulnerable to police suggestion. Victims who review dozens of photos can become worn down, and eventually, the individuals in the photos begin to look the same. When the number of photos shown increases, the chances of a misidentification grow.
Multiple individuals now have experiences where they were wrongly identified and sent to prison to await trial after charges were filed against them based on this identification. Derrick Penn was jailed on charges for three robberies.
He missed his daughter’s kindergarten graduation and was slashed across the face while waiting for trial on Riker’s Island. He had been identified as the perpetrator after the victim was shown 300 photos. Eventually, his lawyers obtained location data that showed he was miles away from the robberies at the time of their commission.
In another case, a plumber was selected by a witness for an assault. The victim picked the 850th photo shown to him – and he was arrested thereafter. The victim confirmed – in court – that the plumber was the same gentleman who had threatened him, but in the middle of the trial, the prosecution dropped the case when the cell phone location data suggested the innocence of the defendant.
It is incumbent upon law enforcement to use the best technology and investigative practices to ensure justice is delivered. Both the data and anecdotes support a departure from the current reliance on mugshot searches to get a conviction. It is high time for the NYPD to behave in line with its contemporaries and reduce its reliance on mugshot searches.