Advocates Push for Change in How Suspects Are Identified

The Associated Press, December 10, 2005

Advocates say police should change the way suspect photos and line-ups are presented to crime victims to prevent the kind of mistaken conviction that landed Robert Clark in Georgia prison for 24 years.

Clark, 45, was freed this week after DNA evidence was used to prove that another man committed the 1981 rape that put Clark behind bars. He was convicted after the victim identified him from photo and police line-ups, even though she earlier had said the rapist was much shorter than the 6-foot-1 Clark.

"I thought once she seen me she would clear everything up and know it wasn't me," Clark said Friday, recalling the 1981 line-up he stood in.

"But after the line-up, they said, 'She picked you out!'"

Attorneys who helped exonerate Clark believe the victim made a mistake at least partly because of the way in which police presented suspects to her.

In the Clark case, a Cobb County police detective was with her when she was presented suspect photos and also was in the room when she was asked to view a live line-up in Atlanta. The detective, R.B. Kelly, suspected Clark at the time.

Kelly is now retired, a Cobb County police spokesman said.

There's no record of exactly what Kelly said or communicated to the victim in those situations, said Vanessa Potkin, staff attorney for the Innocence Project, a New York-based organization that helped free Clark. But he may have consciously or unconsciously given her cues or signs of approval when she focused on Clark, Potkin said.

Potkin's organization is asking law enforcement agencies to make a change: "Have the person administering the line-up or photo array be unaware of who the suspect is," Potkin said.

That measure — called "double-blinding" — could prevent inadvertent or intentional cues that might lead an uncertain victim to finger the wrong suspect, she said.

Innocence Project officials also are asking police departments to change the way they present photos. Many victims are presented six photos, arrayed in an envelope sheet with six windows.

It is essentially a multiple choice test, said Lisa George, spokeswoman for the Georgia Innocence Project, which worked with the New York organization on Clark's case.

The victim may feel they have to pick the one best answer, the photo that most looks like the assailant, George said. By asking victims to view photos one at a time, victims will be more likely to compare each with his or her memory, she said.

Some agencies have already adopted the changes. New Jersey's attorney general in 2001 issued binding guidelines for sequential photo presentation and double-blinded victim line-ups to all the state's police departments and prosecutors.

The guidelines came after a high-profile wrongful conviction case that prompted a New Jersey Supreme Court justice to issue a stern warning, said Lori Linskey, a New Jersey deputy attorney general.

"They basically sent a message to law enforcement officials to 'Find a better way to make identifications, or we're going to change court or evidence rules to significantly limit your ability to use witness identifications in the absence of significant or corroborating evidence,'" Linskey said.

Some police officials have been resistant to the change, because they feel that witness identifications generally work. "There may be a sense that if it's not broke, don't fix it,'" Linskey said.

But the system is broken, said advocates for Clark and others who were exonerated by DNA evidence years after a wrongful conviction. They say Clark was the 164th person in the nation and the fifth in Georgia to be freed through post-conviction DNA testing.

In the Georgia cases, "certainly a large factor was mistaken identifications on the part of the victim or witness," George said.

A Cobb County police spokesman said he didn't know how detectives currently present suspect photos to victims or whether double-blinding procedures are followed.

"We pride ourselves on following protocols and procedures that are accepted widely in law enforcement and that result in successful prosecutions," added the spokesman, Cpl. Dana Pierce.

Innocence Project leaders said only in the past year have they started to regularly approach law enforcement agencies to talk about sequential presentation and double blinding. They haven't yet reached out in Georgia, said Stephen Saloom, Innocence project's policy director.

"It seems like this would be a good time to do that," he said.