Due Diligence and Eyewitness Identification

I have read a number of books, studies, and court cases in my career to support the fact that eyewitness identification, by itself, is never sufficient enough to send a person to prison. This is not news. Over the past 20 years, more and more people are being exonerated for violent crimes due to DNA . This article is not to rehash old arguments. Instead, it is more of a reminder to investigators everywhere to not finalize a case, charge a person, and send them to prison based solely on an eyewitness' identification.

Several years ago, when I was a robbery investigator, I was assigned a case in which a husband and wife were leaving a restaurant. A male approached and pointed a pistol at them demanding their vehicle. The wife was sitting in the passenger seat and the husband was getting in the driver's seat. The suspect hit the male in the head with the pistol causing it to discharge, grazing the husband's forehead. The bullet lodged in the ceiling of the vehicle. The wife screamed and exited the vehicle screaming for help. Her husband laid in the parking lot as the suspect drove away in their vehicle. Fortunately, the husband was not gravely injured. There were no other witnesses willing to come forward.

Patrol officers on the scene recovered a spent shell casing. They looked for surveillance video to no avail. So, the only evidence immediately available was the shell casing and witness statements. The officers completed their offense report and I received the case for follow up investigation.

First, I contacted the wife. She and her husband agreed to meet me at their residence a few days after the shooting. Their vehicle had already been recovered and processed for further evidence. There was no evidence recovered from the vehicle other than the bullet fragment. Partial latent fingerprints were recovered, but were deemed "unidentifiable." So, when I met with the couple, I was not expecting to get much more information that would help this case.

The husband had a bandage on his forehead and had missed two days of work. He told me he did not see the suspect other than his stature. He knew the suspect was a Spanish speaking male, a little taller than him, and wearing dark clothing. He did not see the suspect's face.

The wife told me she was able to see the suspect very clearly. The parking lot was well lit and the suspect looked directly at her as she sat in the passenger's seat. She could not provide much of a physical description, but she said she saw his face. She described him as a Hispanic male in his early twenties, short brown hair, Spanish speaking with a "Central American" accent. She believed he was from either El Salvador or Honduras due to the dialect he used. She also said she saw a mark on the suspect's face. She could not be sure if it was a tattoo or a scar, or a birthmark of some type. She told me she could identify him if she saw him again.

At the time, I had no leads on this case. So, the case literally sat on my desk awaiting results from the firearms lab. After about two weeks, I received a call from the lab. I was advised that the evidence recovered at this robbery scene matched up to a pistol that had been recovered the day after this robbery. A suspect had been arrested and charged for having that pistol. For me, that was a great lead.

I received this information on a Wednesday. I researched the suspect and learned he was in the county jail and was due to be released at midnight. He had pled guilty and received a short sentence. I placed his photo in what we called a "six pack." This is a series of six photographs of similar looking suspects placed in an envelope with six windows. We use these "six packs" to show witnesses. Additionally, I read what was referred to as the admonition. The admonition basically explained the process of the photo array to the witness set to view it. In the admonition, it is also explained that the suspect that committed the offense may or may not be present in the array. Additionally, the witness was under no obligation to pick anyone out. Finally, even if they did pick someone out, it did not mean that the investigation ceased. This was just one step in the entire process.

I met the couple separately at their residence again around lunchtime. After reading both of them the admonition, I showed them the photo array. The husband told me he could not pick out the suspect. The wife, however, immediately identified the suspect in the county jail as the male she saw shoot her husband and take their car. She was quite upset and began to cry. As a seasoned investigator, these physical reactions are what I look for to help me determine the validity of the identification. I was convinced she was correct.

As stated in the admonition, this did not conclude my investigation. However, I was in a time crunch because I did not want the suspect to get out of jail prior to me being able to talk to him. It was late enough in the day that I could not arrange a meeting before the next day. I decided to go ahead and charge him so I could continue my investigation. I felt I had some pretty convincing evidence. After all, he was arrested with the pistol in his possession that was used on the robbery scene. And, the wife had positively identified him in a photo array, and was quite convincing in her identification. Once the suspect was charged, I set the interview up for the following day.

On Thursday, I went to the jail and interviewed the suspect. He immediately waived his Miranda rights and was furious that I had charged him with a robbery he didn't commit. This was very important to me. This man immediately told me who from whom he received the pistol. He provided me a lot of really good information as to where I could locate him as well. I told the suspect that if I could prove his version of the events, I would have him out of jail by Friday. Mind you, this is not an easy task as most prosecutors and judges are not in the habit of dismissing and releasing people accused of violent crimes.

My case had some major hurdles to cross. If the suspect is to be believed, then the wife identified the wrong person in the photo array. Her credibility was immediately in question. So, I could not show her a second array. Also, I had just a charged suspect's word to go on. I had to get a confession. And at the time, all I had was the name of a second suspect with no other identifiers.

I went to the location that the charged suspect told me I could find the real suspect. Lady luck was on my side and he was there. I identified myself and asked him to come to my office. He readily agreed. What was really interesting is that he left his belongings with his girlfriend, gave her a kiss, and told her he was sorry, just as we were leaving. I told him that I would bring him back once we were done and he said, "No you won't."

On the way to the office, I digitally recorded our conversation. Within a few minutes, the new suspect gave me a complete and detailed confession to the robbery. He told me that he did not intend to shoot the husband. He said that the husband fought with him and he hit him in the head with the pistol, causing it to discharge. This suspect said that he thought he shot him in the head. He learned after he drove away that he shot the ceiling of the car. He then told me where he dropped the vehicle off. Finally, the suspect told me that he placed the gun in his friend's car because he didn't want to take it in his girlfriend's apartment. He said it was later that day that his friend was arrested with the pistol when he was on his way to work.

All of those details were consistent with the case. Additionally, the details were so specific that only the person that committed the offense would know them. I was elated, to say the least. I charged this suspect and placed him in jail. Then, as promised, I drove to a judge's house late on a Friday afternoon and had charges dismissed against the initial suspect.

The initial suspect called me on Monday thanking me for my diligence and for keeping my word. I simply told him I was doing my job. I was not trying to be humble. It was a fact. Unlike most of the cases I have read in which a person has fought for their innocence for years, this case only took a couple of days.

Looking back on that case, I learned several lessons. First, just because a witness may be convincing in their identification of a suspect, does not mean the case is over. Not by a long shot. Second, ALWAYS attempt to talk to the suspects. Had I not already been in the habit of talking to the suspects, I would not have been able to arrest the correct suspect so soon. Finally, as an investigator, it is imperative that we stay unbiased in our investigations. We cannot get tied up and focused only on one suspect. It could prove to be detrimental to an innocent person.