STATEWIDE REFORM EYED AFTER TEEN’S WRONGFUL ARREST

Bill would codify how and when police can use “showups”

Two weeks before his high school graduation, Denver police arrested Charles Battle for a crime he didn’t commit after a woman he didn’t know wrongly identified him as a suspect in a robbery.

Battle, then 17, was walking home from a bus stop when several Denver police officers surrounded him, guns drawn, and detained him in connection with a robbery they were responding to, his mother Sharon Battle said.

As he stood between two cop cars, an officer drove one of the witnesses by the teen and asked the woman if he was one of the people she saw break into a house — an eyewitness identification technique used by police called a “showup.”

The woman said yes, Sharon Battle said, even though her son wasn’t wearing the same clothes as the described suspect. But he was a young Black man.

Battle was then arrested and booked into juvenile jail, where he stayed for three days. Six months of court hearings later, the Denver District Attorney’s Office dropped the charges against him because the evidence didn’t support the case, Sharon Battle said.

“He’s been traumatized,” she said. “He says, ‘Mom, any day I leave I could not come home.’ ”

After the teenager’s wrongful arrest, the members of Together Colorado rallied around the family and started the two years of work that led to a bill in the Colorado legislature that would restrict when and how police can use showups to identify a suspect.

A showup is when police detain someone matching the description of a criminal and ask a witness if that person is the person they saw committing a crime. Unlike a lineup or an array of photos of different people, witnesses don’t have the option of picking someone else during a showup. Courts, psychologists and police recognize that the practice can be prejudicial to a suspect, but say

the method is necessary in some circumstances.

“We realized that we need to severely limit this practice, standardize this practice and limit how this can be used in court,” said Kamau Allen, community organizer with Together Colorado, a network of faith and school leaders.

Proponents of the bill — HB 211142, titled Eyewitness Identification Showup Regulations — said it will mitigate the risk of arresting and prosecuting an innocent person while the person who committed the crime remains free. It will keep innocent people from accumulating an arrest record, which can affect people’s ability to obtain housing, education and employment even if the person is not convicted.

“Everyone deserves to have the right person be held accountable for these actions,” said Rep. Jennifer Bacon, a Denver Democrat who is sponsoring the bill. “You shouldn’t just be Black on the street and be thrown into the system because we can’t identify people properly.”

Bipartisan support for bill

In a legislative session with several contentious police reform bills, the eyewitness bill has united police leaders, advocates for change and lawmakers from both parties. The bill passed out of the House with a bipartisan vote of 45-17 and is up for consideration in the Senate.

Supporters include 186 faith leaders united under Together Colorado, the state’s criminal defense bar and the Colorado Association of Chiefs of Police. The Colorado District Attorneys’ Council supports the intent of the bill but is working on small changes to its language.

“The chiefs strongly believe in the need to incorporate best practices and support the notion that we need to do a better job in making showups do what they’re supposed to do: improve the investigative process and make good identifications and exclusions,” Ron Sloan, legislative liaison for the chiefs’ association, said during a hearing on the bill.

Proponents of the bill see it as a way to mitigate racial inequities in the criminal legal system. Mistaken witness identification contributed to 784 of the 2,783 cases in the National Registry of Exonerations. Of those 784 cases, 508 of the people wrongfully convicted were Black — about two-thirds of all cases.

“When we talk about the death of George Floyd, it’s these kind of incidents that led to the protests of George Floyd’s death,” Bacon said. “It’s part of that crescendo, not because of it.”

It’s unclear how often police in Colorado use showups as there is no statewide data on the topic. Few, if any, law enforcement agencies here track the usage. Nationally, about 62% of agencies use the method, according to a 2013 survey of 619 departments conducted by the Police Executive Research Forum.

The bill requires that departments begin to collect data on the technique and publish an annual report on its use.

“There are things we all know are true in our communities, but those experiences are invalidated if there isn’t data,” Bacon said.

Research shows that showups are the least reliable method of identifying a suspect and the most prejudicial method to alleged suspects, said Margaret Bull Kovera, a professor at the John Jay College of Criminal Justice who studies eyewitness identification. Kovera and other leading psychologists in 2020 published a list of best practices for obtaining and using eyewitness identifications.

“We recommend against showups altogether, but if they should be done they should be following rules like in this legislation,” Kovera said.

Prejudicial and problematic

The bill, if passed, would restrict Colorado law enforcement from using showups except in situations where a lineup or a photo array are not possible and only if a person is detained “within minutes of the commission of the crime and near the location of the crime.” It also gives defendants the opportunity to request a court hearing and have a judge review how a showup was conducted. If the judge finds it did not follow the rules, the evidence will become inadmissible.

The bill also require officers to follow best practices established by Kovera and other leading scientists, such as asking a witness how confident they are in their identification. It also bans police from not presenting suspects who are sitting in the back of a police car or in handcuffs to a witness, as this implies that they are guilty.

Showups are useful in a handful of situations, such as when the suspect is known to a witness, said Tim Lane, legislative liason and policy analyst with the Colorado District Attorneys’ Council. If conducted properly, they can also help police quickly eliminate innocent people from a pool of potential suspects.

“Showup identifications can be useful sometimes, but they can be prejudicial and they can be problematic,” Lane said.

The showup bill builds on a law passed in 2015 that required law enforcement agencies to create policies and procedures around eyewitness identification techniques. The law tasked criminal justice leaders with creating a best practices policy, but did not require departments use that policy.

“There was little teeth in that statue and little standardization as to how this practice should be used,” Allen said.

Battle wants policies about showups to be standard across the state so that her son’s rights are protected with the same procedures in Denver as well as when he goes skiing. She also hopes the legislation will protect families who don’t have as many resources as her own from dealing with the ramifications of a wrongful arrest.

“If you don’t have the means to fight, if you don’t have an organization like Together Colorado, or don’t have parents who have a flexible enough situation, most people would plea bargain whether they did it or not,” Battle said.

“If I were a single parent, I would probably end up crying with my son, believing him but encouraging him to take the deal and move on.”