Flaws seen in police use of mug shot searches
Inside a police station house in New York City about a year ago, St. Clair Steward insisted he had not been involved in a recent shooting. Steward told the police he had been resting at home.
Investigators did not believe him. The motive behind the shooting was a mystery, but the victim had combed through pictures of people with past arrests and identified Steward, a father of eight, as the assailant.
To the detectives involved, the shooting in January 2018 was just the latest in a long line of crimes solved by asking a victim to search through mug shots, an investigative technique used in
New York for more than 150 years. Detectives enter a description of the perpetrator into a database, which then spits out dozens or even hundreds of matching photos. The witness scrolls through, in hopes of recognizing the culprit.
But these open-ended photo searches also increase the likelihood of ensnaring an innocent person, according to studies and experts in eyewitness identification. The method has few safeguards to protect against a false identification and can lead police to focus on the wrong person from the outset of an investigation.
Many of the nation’s other large police departments – including Chicago, Los Angeles, Houston, Washington, Dallas and Miami-Dade – said they do not rely on the technique, a New York Times survey shows.
Detective bureaus in many other jurisdictions do not show booking photos to witnesses until they have a suspect in mind. Investigators then conduct a photo lineup, placing the suspect’s among photos of at least five “fillers” – people who fit the description but are known to be innocent.
That approach offers some shield against a false identification: If the witness chooses a filler, police understand the witness is wrong and know not to arrest that person.
In a mug shot search, everyone is a potential suspect, and the actual culprit might not be among the group. But whoever the witness selects becomes the focus of the investigation.
“I think it taints the investigation,” said Deputy Chief Thomas Castro, who oversees detectives for the Dallas Police Department.
Dermot Shea, New York City’s chief of detectives, defended his department’s use of the searches, saying they were just one of many investigative tools. The police can also, he said, get leads from surveillance cameras, DNA evidence and tracking technology, such as in cellphones.
“Mug shots are still a piece of the puzzle,” Shea said. “But to me, they are a much smaller piece.”
In Steward’s case, in the borough of Queens, detectives entered broad search parameters into the database: black men, aged 35 to 45 and between 5 feet 8 inches and 6 feet 1 inch tall, with past arrests in three nearby precincts. The victim chose Steward, whose photo was the 31st to appear, said a law enforcement official who asked to remain anonymous because the official was not authorized to discuss the case.
“They told me, ‘The person looked at your mug shot and said it was you,’ ” Steward, 43, said in a recent interview.
Police then put Steward in a lineup alongside several other men. Again, the victim chose Steward. He was charged with attempted murder and jailed.
He stayed in jail for more than two months until a DNA sample from the crime scene was finally tested. The sample, believed to have come from the culprit, did not match Steward, throwing the case into doubt. Prosecutors quietly dismissed the charges in September.
‘I HAVE NOTHING’
The reliability of eyewitness identifications began to face serious scrutiny within the criminal justice system in the 1990s, as DNA testing began to exonerate people who had been convicted of rape and other crimes on the basis of mistaken eyewitnesses.
To some extent, false identifications are unavoidable. Memory is spotty and malleable and erodes quickly. Crossracial identifications are especially prone to error. One study of robbery investigations in Houston found that eyewitnesses who claimed to recognize their assailant in a police lineup had actually selected a person known to be innocent about 47 percent of the time. An aggregate of similar studies found an error rate of closer to 37 percent.
But the frailty of memory is not the only problem.
Poorly designed or suggestive police procedures can heighten the risk of a mistaken identification, and critics say open-ended mug shot searches are especially vulnerable.
Victims can become worn down when viewing a large number of photos and choose someone who reminds them of the culprit, said Castro of the Dallas Police Department.
As the number of photos shown increases, “the more likely you are to encounter someone who looks like the person who committed the crime, but didn’t,” said John Wixted, a professor of psychology at the University of California, San Diego, who researches eyewitness memory.
Across the country, some police commanders have concluded that leaving a crime unsolved is sometimes a better alternative to relying on a procedure that elevates the risk of jailing an innocent person.
“You just have to be willing to say – it’s not pleasant – ‘I have nothing,’ ” said Maj. Mike Smathers of the CharlotteMecklenburg Police Department, North Carolina’s largest municipal police force. “And I’m not going to let someone look through all these pictures when I have nothing.”
There is little data available on how many police departments across the country conduct openended mug shot searches and how frequently they are used.
A 2011-12 survey of police and sheriff’s departments showed that 56 percent of responding departments with more than 500 officers did not let witnesses pore over photos, while the other 44 percent did. But it was unclear whether the departments that used the technique turned to it often.
Nationally, police departments in cities larger than a million people reported solving fewer than a third of robberies in 2017, the last year for which numbers were available. The New York Police Department says it solves robberies close to half the time.
Because robbers frequently are repeat offenders with previous arrests, many New York detectives believe mug shots are a sensible place to turn. “Detectives encourage victims to view photos to breathe some life into the investigation,” said Michael J. Palladino, the president of the Detectives’ Endowment Association, which represents the city’s detectives.
In New York, the procedure is endorsed by the official Detective Guide, which lays out the Police Department’s basic investigative procedures.
Derrick Penn, 37, said being jailed in 2014 on charges of committing three armed robberies was “like being in hell.” He missed his daughter’s kindergarten graduation, was slashed on the face while on Rikers Island and was told he might go to prison for up to 50 years.
Penn, who works at a New York hospital manning an entrance gate, had been identified as the culprit during a mug shot search in which more than 300 photographs were shown to one of the victims. Later, three victims, including the one who chose him from among the photos, identified him in a live lineup, Penn’s lawyers said.
He insisted he was innocent, and location data indicated that his cellphone was miles away from the robbery locations, according to his lawyers, Scott Hechinger and Dara Hebert of Brooklyn Defender Services.
Prosecutors dropped the case against Penn and sealed it. “The judge never gave me an apology – they just said, ‘Stay out of trouble,’” Penn recalled. He had been arrested numerous times, mainly for marijuana and drivingrelated offenses, but his lawyers said he had no felony record. “How’d they get it so wrong?” Penn said.
Eyewitness identification experts said mug shot searches may be a reasonable approach in some situations.
“If someone was abducted and spent two days with the kidnapper, who was unmasked, show them pictures,” said Gary Wells, a psychologist at Iowa State University and a pioneer in the field of eyewitness identification. But for general use, he said, “I think it is a huge problem.”
ONE STUDY OF ROBBERY INVESTIGATIONS IN HOUSTON FOUND THAT EYEWITNESSES WHO CLAIMED TO RECOGNIZE THEIR ASSAILANT IN A POLICE LINEUP HAD ACTUALLY SELECTED A PERSON KNOWN TO BE INNOCENT ABOUT 47 PERCENT OF THE TIME.
Derrick Penn was identified during a mug shot search in which more than 300 photographs were shown to a robbery victim. His case was dropped, but he said he never got an apology. Many big police departments will not use open-ended mug shot searches because of the chance of a mistaken identification. But New York City detectives turn to them routinely.