The Howard Journal Vol35 No 3. Aug 56 ISSN 0265-5.527, pp 232-241

Mistaken Identification: Where Law Meets Psychology Head On

GRAHAM M . DAVIES Professor o f Psychology, University o f Leicester

Abstract: In England and Wales, criminal convictions continue to be secured on the basis of identajication evidence alone. The Devlin Report (1976) concluded that the process of identijication was inherently fallible and recommended that such prosecutions should cease save in exceptional circumstances. Devlin also called for mare psychological research on the identafication process. Examples of such research are reviewed, together with cases of actual or alleged mistaken identification which exemplifr the principles uncovered by this work. It is concluded that until Devlin’s central recommendation is carried into law, miscarriages ofjustice based on mistaken identi& are likely to continue lo bedevil the English legal system.

In July 1969 the trial took place of Laslo Virag, a Hungarian emigre who was charged with thefts from parking meters in Liverpool and Bristol and the attempted murder of a police officer who had attempted to arrest him. No forensic or fingerprint evidence linked Virag to the crimes, the main prosecution evidence consisted of the identification of Virag by four police officers and three members of the public, part of a group of 17 witnesses who had been called to one of two identification parades arranged by the police. Virag had been legally represented at the parades which by all accounts were conducted impeccably: witnesses recalled the suspect wearing a trilby hat, so all members of the parade wore identical trilby hats.

Virag had led a feckless, drifting life subsidised by the proceeds of gambling and social security cheques. His defence was that he had been at a gambling club in London at the time of the Bristol offences but the nine witnesses he claimed could prove it were either untraceable or spoke little or no English. Not surprisingly perhaps, the jury chose to believe the convincing and confident eyewitnesses rather than the impassive foreigner. As one police witness involved in the chase of Virag put it: ‘his face is imprinted on my brain’. The jury took just 70 minutes to find Virag guilty and he was sentenced to ten years imprisonment. His application to appeal was refused.

Yet, Virag did not commit the crimes for which he was convicted and the convincing and confident eyewitnesses were wrong. Two years later in 197 1 police arrested a Ukrainian, George Payen after a struggle at his flat

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in Notting Hill. In the flat they found a gun which had been fired in the Bristol chase and parking meter cash boxes and other forensic evidence linking Payen to the Bristol and Liverpool crimes. Police investigations confirmed that Payen and Virag were not partners in crime; indeed they had never met. In December 1974, the Home Secretary gave Virag a free pardon and awarded him €1 7,500 compensation from the public purse (Devlin 1976).

Virag’s case is but one of a catalogue of incidents which demonstrate the inherent fallibility of eyewitness identification of strangers who have been briefly seen by witnesses in the course of a crime. I t stands alongside such celebrated cases as Adolf Beck, twice wrongly convicted as a confidence trickster on the basis of ten and four witnesses respectively (Watson 1924), and of Patrick Meehan who received a Royal pardon after being sentenced to life imprisonment for murder in 1969 on the basis of an identification made by the husband of the victim (Kennedy 1976). Virag’s case is important in that it triggered a judicial enquiry conducted by the distinguished judge, Lord Devlin, which forms the basis of how the law treats identification evidence today.

The Devlin Report and its Aftermath

Lord Devlin’s report was published in 1976. Its main recommendation was that identification evidence was not sufficiently reliable that it should be used alone as a basis for prosecution in criminal cases, save in the most exceptional circumstances. Where identification evidence formed a significant part of the prosecution case, judges should be mandated to point out to juries its fallibility and to explicitly mention such factors as the lighting and distance at which the witness saw the suspect, the delay between observation and attendance at a parade and the way in which the parade was conducted. He called for stiffer rules and more elaborate documentation for the conduct of parades and recommended that these should be binding on police authorities, such that any violations might prejudice a trial.

Reaction to Lord Devlin’s radical report among government and the judiciary was cautious and some of the most fundamental recommenda- tions were never implemented. The abolition of trial by identification alone was not abandoned. Instead, in a series of judgments (The ‘Turnbull’ Guidelines) made by Lord Widgery in the Court of Appeal ( R v. Turnbull G3 Others, 1977),‘ the Court strove to make a distinction between what they termed ‘good’ and ‘poor’ quality identifications. ‘Good’ quality identifications were represented by cases where the witness had a prolonged opportunity to observe the suspect under optimum conditions (a kidnapping where the witness victim was held unblindfolded for some time was offered as an example). Poor quality identification on the other hand was held up as a suspect glimpsed fleetingly at the scene of a bank raid. In future, the court would expect identification only cases to involve only ‘good quality’ identifications and the Court would allow appeals based on ‘poor quality’ evidence. In all cases, judges would be

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expected to follow Devlin’s prescription for summing up on matters of identification. The Home Office, for its part, amended the Guidelines on the conduct of parades to include for the first time a caution to witnesses that the suspect might not be present and that they should only identify someone if they were confident. However, breaches of the Guidelines were not to be a basis for judicial intervention.

Critics, not least Devlin himself (Devlin 1982), who predicted that the l’urnbull Guidelines would not stem cases of mistaken identification have had their misgivings amply confirmed. In 1972, the Criminal Law Review Committee described mistaken identification as: ‘By far the greatest cause of actual or possible wrong convictions’ and a 1990 report from the legal organisation ‘Justice’ reported that 69 of the 507 cases referred to them as miscarriages of justice involved alleged misidentification.

Lord Devlin’s enquiry has taken evidence not merely from lawyers but also from psychologists. His report included in its recommendations that: ‘Research should be directed to establishing ways in which the insights of psychology can be brought to bear on the conduct of identification parades and the practice of the courts’ (Devlin 1976, p. 149). At the time of his report, Devlin expressed himself disappointed by the lack of relevant psychological research on these problems. Nearly two decades of research have taken place since his enquiry which have served both to bolster Devlin’s conclusions and to clarify the cognitive mechanisms which can result in mistaken identification.

Such research draws upon both traditional laboratory-style experiments and so called ‘field studies’ where incidents or simulated crimes are staged in front of unsuspecting audiences. Traditional research has all the virtues of clear manipulation of variables and experimental control associated with the laboratory but often lacks forensic relevance. Field studies on the other hand are sometimes more haphazard, on occasion stretching ethical limits in their efforts to simulate conditions of a real crime (witnesses, for instance, have not been told until after they have taken part in an identification procedure conducted by uniformed officers that ‘the crime’ they witnessed was not an actual crime, Hosch et al. 1984). Complementary to such experimental work has been archival analysis involving detailed examination of case records (Wright and McDaid 1996) and careful study of individual cases to shed light on the strengths and weaknesses of the human observer (Davies 1992). In this paper, I will focus on three areas where evidence from these disparate sources converges on stable conclusions.

The Impact of Long Delays One effect of the Devlin Report was to prompt the Home Office into funding some basic research into aspects of identification. John Shepherd, Hadyn Ellis and myself at Aberdecn University were commissioned to examine the impact of long delays on accuracy of identifications at parades. One study we conducted (Shepherd et al. 1982) involved groups of people being invited to the University to fill in questionnaires. At a

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prearranged point, the proceedings were interrupted by a fresh-faced man demanding to know who among the assembled group had scratched his car. He then read out a (fictitious) car number before being hustled from the room by the lecturer, the whole incident lasting 45 seconds. Some of the witnesses were then asked to try to select the outraged motorist from an identification parade drawn up with the assistance of the police. Others were brought back at intervals of between one week and almost a year subsequent to the incident to make an identification. Our results showed that recognition rates declined steadily from 65% on immediate testing to 10% or chance after a year. Misidentifications remained surprisingly constant at around 15-2070 while the proportion not prepared to make a selection showed a commensurate increase.

The fact that our witnesses should perform relatively poorly under conditions of minimum delay replicates a frequent and familiar finding in psychological research (Shepherd 1983). More worrying is the continuing readiness of a minority of witnesses to make an identification after long delays, given the apparent frequency with which courts listen to cases where substantial delays occur between initial observation and a test of identification.

Most notorious of such cases is that of John Demjanjuk, the former Ukrainian citizen, then a resident of the United States who was arrested and subsequently deported to Israel for trial in 1987, accused of being the notorious ‘Ivan the Terrible’ of Treblinka Concentration Camp. Demjanjuk vehemently and consistently maintained his innocence, but the court in Jerusalem preferred to believe the testimony of nine elderly survivors of Treblinka who confidently identified the Ukrainian as ‘Ivan’. The defence employed a psychologist, Professor Willem Wagenaar of Leiden University to analyse the identification procedures. These turned out to fall well below those expected in an English court; the photographic arrays were haphazardly constructed and no attempt was made to shield witnesses from each other. Moreover, the prosecution had approached 15 other survivors who had either explicitly denied that Demjanjuk was Ivan or had merely said there was a passing resemblance (Wagenaar 1988). Nonetheless the court passed sentence of death on Demjanjuk from which he was saved only by the fortuitous opening ofwartime archives following the fall of the Soviet government. This permitted the identity of the real Ivan to be established and a reluctant admission wrung from the Israeli and United States Governments that they had convicted the wrong man.

The Demjanjuk case dealt a salutary blow to British attempts to convict former Nazi officials still resident in the UK of war crimes on the basis of 40 year old eyewitness testimony. However, the problem of delays of a more modest kind still seem not to have been fully appreciated by the British courts. In 1981, a Scotsman, John McGranaghan, was convicted for a series of particularly vicious rapes committed in the Surrey area between 1978 and 1980. No fingerprint or other forensic evidence linked McGranaghan to the crimes but all three victims had identified him with varying degrees of certainty as the assailant. The parades had taken place

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between ten months and two-and-a-half years after the assaults. The attacks had taken place in poor lighting conditions and all three had caught only fleeting glimpses of the person involved. Moreover, at least one of the victims had told the police her attacker was Irish and nQne had mentioned an impediment which was a marked feature of McGranaghan’s speech. The judge summed up using the Devlin procedures and drew attention to the weaknesses in the identification evidence. Nonetheless the jury convicted McGranaghan who received two concurrent life sentences ( Wofindon 1989).

McGranaghan continued to protest his innocence in jail and ‘Justice’ took up his case and I as a psychologist was asked to analyse the identification evidence. As a result of the ‘Justice’ report, the Home Office ordered an enquiry in 1988 led by a Superintendent from the City of London police. This uncovered forensic evidence not disclosed to the defence at the time of the trial concerning semen samples recovered from the crime scene. These came from blood group ‘0’ whereas McGranaghan was group ‘A’. As a consequence McGranaghan was released in 1991 by the Court of Appeal in a case which, in the words of Mr Justice Gladwell ‘could only be regarded as a miscarriage of justice’ (The Guardian, 31 October 1991). The rules on the disclosure of forensic evidence to the defence have since been amended (following the case of Judith Ward) which might have curtailed McGranaghan’s ordeal. However cases continue to be brought on the basis of ‘stale’ identifications and juries continue to convict, despite the Turnbull Guidelines.

Fragments and Wholes A basic premise of identification parades is that witnesses remember enough about the appearance of a person as to be able to recognise them later with a high degree of accuracy. Yet research suggests this is not the case: people recall only fragmentary information after a brief encounter and only build up a rich, full representation of a person’s appearance after repeated opportunities to observe and interact (Macleod et al. 1994). Early laboratory research conducted principally by my former colleagues Hadyn Ellis and John Shepherd demonstrates that certain parts of the face are more likely to appear in people’s spontaneous descriptions of individuals than others. Specifically, upper features (hair style and length, eyes) are much more likely to be remembered than lower features (chin, mouth) (Shepherd et al. 1981). Moreover, faces which share the same key salient features are readily confused by observers, despite differences on many other attributes (Davies et al. 1979).

More recent research by Peter Bennett, a retired Detective Sergeant in the Metropolitan Police, has confirmed that this is not an effect confined to the laboratory. Bennett examined the descriptions provided by witnesses of suspects involved in 177 serious crimes (95 were for violent crimes including rape and murder and the remainder were deception and fraud). The relative frequency with which different facial features were mentioned in the laboratory and ‘real life’ settings was significantly

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related (a correlation of O.66), suggesting that this is a reliable and stable feature of person perception (Davies 1992).

The fragmentary nature of memory for appearance has implications not only for potential confusion on identification parades but also for such composite aids to recall as Identikit, Photofit and their computerised counterparts like ‘E fit’. All demand recall of a total face, but given the witness can only remember certain features, witnesses must fall back on plausible reconstruction rather than true memory for the remainder. They may use features which seem compatible with the remembered features (a long nose in a long face) or rely on stereotypical notions of what a rapist or burglar must look like (Bull and Green 1980). This may be the reason why so many published facial composites look so villainous!

In these circumstances it is perhaps not too surprising that the average degree of likeness achieved by such methods is not very high. The only official enquiry into the effectiveness of Photofit as a detection aid concluded that whilst 22% had proved ‘useful’ or ‘very useful’ to the solution of a crime, a substantial minority (45%) were either ‘not very useful’ or ‘no use at all’ (Kitson et al. 1978). Most experienced composite technicians see their role as producing a ‘type likeness’ which will eliminate suspects of a different appearance rather than pinpointing one guilty individual (Christie et al. 1981). However, this consensus among experts is not shared by jurors or some prosecutors.

Peter Fell was a young man who craved public fame to the extent of having his photograph taken with a sports trophy he had purchased himself. When in 1981 two women were savagely murdered on a common near Aldershot, Fell repeatedly contacted the police to claim he had a role in their deaths. Police ignored these calls for 14 months while they pursued other lines of enquiry. Their principal witness had caught a momentary glimpse of the suspect as he left-the scene and provided a typical fragmentary description, his key memory being of an individual with ‘messy unkempt hair’ and the first Photofit he produced was true to this description. The witness then made three more composites over the space of the next year and in each the unkemptness of the hair decreased and the general resemblance to Fell increased. The assumption seemed to be that the more the witness was questioned, the more clear his memory would be, rather than, in reality, the more confused he would become between what he had seen originally and what he had reconstructed in the interim. Finally the police placed Fell on an identification parade for the principal witness who failed to pick him out. Nonetheless the prosecution went ahead relying upon the likeness of the later composites and Fell’s earlier admissions. The judge, in his summing up, sagely observed: ‘The Photofits were a good likeness of the suspect, but how good a likeness were they of the man on the common?’. The jury found Fell guilty and he was sentenced to life imprisonment where he continues to protest his innocence. In 1993, he was the subject of a ‘Trial and error’ documentary on Channel 4.

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Parade Dynamics The guidelines for the conduct of parades in England and Wales have evolved over the years, refined as a result of earlier causes cilibres. The current PACE codes call for a minimum of eight persons to accompany the accused and for the other members of the parade to resemble him or her in ‘age, height, general appearance and position in life’. While there is, quite appropriately, no requirement that the stand-ins be clones of the suspect, there is a recognition that the parade should be a fair test of witness memory. If, however, the accused is highly distinctive by reason of appearance or dress, then the parade ceases to be a fair test of identification: it is simply a confrontation between the witness and the accused in the presence of bystanders.

Psychologists have developed in recent years a useful distinction between the functional and objective size of a parade (Wells 1988). The objective size represents the numbers of persons actually present (typically nine) but the functional size represents the number who actually resemble the subject. At one extreme, say where a black suspect is paraded alongside white stand-ins, the functional size would be one. With the increasing availability of photographs or tapes of actual parades, psychologists have developed various ways of measuring the functional size of a parade. Most have as their basis the showing of a description of the suspect by the witness to people who have no knowledge of the case and asking them to see if they can select the accused from the parade on the basis of the description alone. If they can accomplish this with an accuracy well above chance, this suggests the functional size is much smaller than the objective size (Brigham and Pfeifer 1994).

One case which illustrates this principle is that of Steven Davis who received a twelve year prison sentence in 1991 for armed robbery. The main evidence against the accused was that he had been identified on a parade by the owner of a jewellery shop which had been robbed at gunpoint. The robber had worn dark glasses and a closely fitting cap, so that the normal clues to identification from the face were hidden. Two other witnesses, who had seen the robber leaving the shop without disguise failed to select Davis and one explicitly stated he was not present.

Photographs of the parade were available and I was asked to assess its fairness. The witness description was as follows: Six foot tall or slightly over. White, average to athletic build. Olive, sallow complexion. A long face with a rounded nose in the profile. Black haired, clean shaven. A good weighty jaw with generous ears. About 35 years old. When given this information alone, 36 (62%) of a sample of 58 undergraduate students were able to select Davis from the photograph, suggesting that the parade was not a fair test of the memory of the witness. Davis’s case was heard at the Court of Appeal in September 1993. The Court allowed Davis’s appeal, largely on the grounds that the presiding judge in his original trial had failed to follow Devlin’s guidelines on summing up in identification cases. When the case was heard again in Birmingham in October 1993, Davis was found not guilty and released.

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The problem of functional size also loomed large in the case of Hassan Khan, a man of mixed Afghan and European parentage who in 1987 was convicted for armed robbery of an electrical store in a Birmingham shopping precinct. The robbery took place at 5.30 on a busy Saturday afternoon. A security guard and several brave members of the public took up pursuit of the two robbers as they fled on foot. At several points the robbers turned and fired at the crowd, injuring two people. In all 53 witnesses came forward with statements to police of whom 14 were called to an identification parade for Khan and half of these selected him as one of the robbers.

The main evidence against Khan were the seven identifications and an admission in a statement which the police alleged had been taken down in the back of a patrol car which had conveyed Khan from his brother’s house in North Wales. The court heard that six weeks prior to the robbery, Khan had lost two toes in a shotgun incident and was still hobbling about at the time of the robbery. The jury, however, still chose to believe the eyewitnesses.

Once again, I was asked by the defence to scrutinise the identification evidence. It will be recalled that the Turnbull judgment specifically warned of the dangers of ‘fleeting glimpse’ identifications and these were amply justified in this case. The descriptions of the man alleged to be Khan showed little consistency. Of the 14 witnesses summoned to the parade, eight were convinced they had seen a Western European, two an African and two a Greek while the remainder did not specify a racial origin. Hair was variously described as ‘black’, ‘dark brown’ or ‘jet black’ and length was at one exdent ‘collar length’ and at the other ‘short’ or ‘very short’. Likewise the impressive identification rate had to be viewed against the make-up of the parade. Khan was by all accounts the only Eurasian on the parade, the reminder consisting of five dark-skinned Asians, another dark skinned man of indeterminate race, a half caste West Indian and a white man with the word ‘skins’ tattooed across his forehead!

Khan’s case too went to the Court of Appeal in 1990 and once again his appeal was allowed, not because of the weakness of the identification evidence, though this undoubtedly played a role, but because scientific tests of his statement revealed traces of later additions and changes.

Thus, twice in recent years the Court of Appeal had permitted appeals in identification cases but has shown itself reluctant to pass judgment on the psychological concepts of functional size and the attendant research. In the United States the functional size concept is regarded as a valuable contribution to forensic knowledge even by those who pour scorn on much conventional eyewitness research (McCloskey and Egeth 1983). It is difficult not to feel sympathy for the police who must assemble a parade, faced with a suspect who is distinctive by reason of race or physical appearance. Perhaps the answer lies in the freedom given in the current version of the PACE codes for the police to build up libraries of video clips of potential stand-ins against which a suspect may be matched or in the recent initiative of the Metropolitan Police to build up a panel of

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volunteers who may be called up for parades involving suspects from the ethnic minorities (Wright and McDaid 1996).

Devlin Revisited

As this sample of cases illustrates, the problems of identification evidence did not cease with the Devlin Report and the Turnbull Guidelines. The problems of the overbelief of jurors and some judges in the abilities of witnesses to make accurate identifications under psychologically implaus- ible circumstances is still present. The fact that fleeting glimpses can lead to fragmentary and easily influenced memories which Devlin and even the Turnbull Guidelines appeared to have grasped seems to have been lost again on a new generation of judges. The dynamics of identification parades, the problems of constructing a fair test and ensuring that witnesses make a genuine identification rather than merely selecting the person most similar to their memories is an ever present concern.

Most of the cases I have described have had a positive outcome in that the Court of Appeal has chosen to reverse an earlier verdict, often in the presence of overwhelming proof of the accused’s innocence of the particular crime. There are other cases, in my files and on the books of ‘Justice’ or the Television producers who specialise in features on miscarriages ofjustice, where there is no such happy ending. I believe that the time has now come to look again at the principal recommendation of the Devlin Report, that a positive identification should cease to be the primary or principal basis on which a case can be brought against an accused.

Serious consideration must be given to adopting the Scottish position which insists upon independent corroboration of all identification claims. When this proposal was first put forward in the 19709, there was widespread concern that many rapists might go free if a woman’s identification alone ceased to be suficient evidence of guilt. Today, with the widespread availability of DNA profiling, the sting appears to have been drawn from that particular concern. At least as a first step, a survey should be instituted into the frequency with which identification evidence is cited as the principal or sole evidence against the accused in court with a view to assessing the impact of a change in the law in the direction of the late Lord Devlin’s recommendations. Mounting psychological research and a steady trickle of miscarriages of justice demand nothing less.

Note

’ R v. Turnbull and others (1977) QB 224; (1976) 3 AVE R 549 at pp. 549-550.

References

Brigham, J. C. and Pfeifer, J. E. (1994) ‘Evaluating the fairness of lineups’, in: D. F. Ross, J. D. Read and M. P. Toglia (Eds.), Adult Eyewitness Testimony: Current Trends and Developments, Cambridge: Cambridge University Press.

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Bull, R. and Green, J. (1980) ‘The relationship between physical appearance and criminality’, Medicine, Science and the Law, 20, 79-83.

Christie, D. F. M., Davies, G. M., Shepherd, J. W. and Ellis, A. D. (1981) ‘Evaluating a new computer-based system for face recall’, Law and Human Behaviour, 5, 209-18.

Davies, G. M. (1992) ‘Influencing public policy on eyewitnessing: problems and possibilities’, in: F. Losel, D. Bender and T. Bliesener (Eds.), Psychology and Law: International Perspectives, Berlin: De Gruyter.

Davies, G. M., Shepherd, J. W. and Ellis, H. D. (1979) ‘Similarity effects in face recognition’, American Journal of Psychology, 92, 507-23.

Devlin, Lord P. (1976) Report to the Secretary of State for the Home Department on the Departmental Committee on Evidence of Identijkation in Criminal Cases, London: HMSO.

Devlin, Lord P. (1982) ‘Forward’, in: J. W. Shepherd, H. D. Ellis and G. M. Davies, Identification Evidence: A Psychological Evaluatioon, Aberdeen: Aberdeen University Press.

Hosch, H. M., Leippe, M. R., Marchioni, P. M. and Cooper, D. S. (1984) ‘Victimisation, self-monitoring and eyewitness identification’, Journal of Applied Psychology, 69, 280-8.

‘Justice’ ( 1990) 33rd Annual Report, London: Justice Publications. Kennedy, L. (1976) A Presumption of Innocence, Letchworth: Gollancz. Kitson, A,, Darnbrough, M. and Shields, E. (1978) ‘Lets face it’, Police Research

Bulletin, No 30, 7-1 3. Macleod, M. D., Frewley, J. and Shepherd, J. W. (1994) ‘Whole body information:

its relevance to eyewitnesses’, in: D. F. Ross, J. D. Read and M. P. Toglia (Eds.), Adult Eyewitness Testimony: Current Trends and Developments, Cambridge: Cambridge University Press.

McCloskey, M. and Egeth, H. (1983) ‘What can a psychologist tell a jury?’, American Psychologist, 38, 550-63.

Shepherd, J. W. (1983) ‘Identification after long delays’, in: S. M. A. Lloyd- Bostock and B. R. Clifford (Eds.), Evaluating Witness Evidence: Recent Psychological Research and New Perspectives, Chichester: Wiley.

Shepherd, J. W., Davies, G. M. and Ellis, H. D. (1981) ‘Studies of cue saliency’, in: G. M. Davies, H. D. Ellis and J. W. Shepherd (Eds.), Perceiving and Remembering Faces, London: Academic Press.

Shepherd, J. W., Ellis, H. D. and Davies, G. M. (1982) Identification Evidence: A Psychological Evaluation, Aberdeen: Aberdeen University Press.

Watson, E. R. (1924) The Trial of Adolf Beck (Notable British Trials Series), London: W. Hodge and Co.

Wagenaar, W. ( 1988) IdGntdfing Ivan, London: Harvester-Wheatsheaf. Wells, G. L. ( 1988) Eyewitness Zdentijication: A Systems Handbook, Toronto: Carswell. Woffindon, B. (1989) ‘Evidence to the contrary’, The Independent, 21 April, 12. Wright, D. B. and McDaid, A. T. (1926) ‘Comparing system and estimator

variables using data from real line-ups’, Applied Cognitive Psychologv, 10, 75-84.

Date submitted: October 94 Date accepted: April 95

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