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EyeWitness
If you listen to a lot of experts these
days, the value of eyewitnesses to crimes
is a thing of the past.  DNA has had a lot
to do with the devaluation of eyewitness
identification of suspects.  From time to
time, you'll hear of an instance when a
person convicted of a crime, wherein the
conviction was based largely, or solely,
on eyewitness testimony, is exonerated
through DNA testing.  Sex crimes most
often fall into this category.

Defense attorneys will always attack
eyewitness identifications by any means
available to them; however, it is
ultimately up to a judge or jury to
determine the accuracy of eyewitness
identification.  As a police officer, it will
always be up to you to locate, identify,
and isolate an eyewitness(es) to a crime.  
It will be up to you to ensure that any
eyewitness identification of a suspect(s)
is made completely free of coercion of
any kind.  If you're fortunate to have an
eyewitness(es), that circumstance is
simply one building block in your
investigation.  You should never take the
attitude that once you have an
eyewitness, you need do no more.  While
eyewitness identification will always
continue to be a critical and convincing
factor in your investigations, you must
always exhaust all efforts to develop
additional evidence to support the
eyewitness identification.

I learned very early in my career just how
important an eyewitness identification can
be; however, had it not been for my near
presence at the crime scene when the
crime occurred, the eyewitness
identification would have been useless:
I had been a police officer for less than a
year, and I was walking my foot post on
E. North Avenue in East Batimore.  It was
about ten o'clock on a weeknight, and
everything was pretty quiet.  Vehicle
traffic was light, and there wasn't a
pedestrian in sight.  I was about fifty feet
from the Firehouse at North Avenue and
Bond Street, and I was thinking about
stopping inside the Firehouse when the
sound of gunfire abruptly altered that
idea.

The first shot got my attention, but I
couldn't immediately detect from what
direction the shot came.  Only a second
passed, and two more shots followed in
rapid succession.  The gunfire clearly
emanated from Bond Street around the
northwest corner of the Firehouse.  I
drew my revolver as I began to cautiously
approach the corner of the Firehouse
while notifying my dispatcher of the
gunfire and my location.  When I was
about twenty feet from the corner, two
young men came running around that
corner.  Had I moved more rapidly toward
that corner, there's no doubt they would
have collided with me.  To say there was
shock all around would be an
understatement.

I raised my revolver and shouted that
universally understood word, "Freeze!"  
The two men almost stumbled as they
tried to slow their forward movement.  I
immediately detected that look of shock
and fear in the faces of the men that
you'll often see in suspects you've just
caught in the act of committing a crime.  
They immediately followed my order to
place their hands against the front
garage door of the Firehouse.  As I held
the men at gunpoint, they conversed
with each other, but they weren't talking
loud enough for me to hear what they
were saying.  

I was busy notifying the dispatcher of my
situation as several firefighters exited the
Firehouse to see what was going on.  As
I was about to tell the two men to stop
talking, I detected movement to my
right.  I looked to see an elderly woman
standing across the street on the
southwest corner of Bond Street and E.
North Avenue.  The expression on the
woman's face clearly showed she was in
distress.  Before I had a chance to say
anything to the woman, she slowly raised
her right arm and pointed with her index
finger toward the two men.  Her
forthcoming statement then said it all,
"They just shot my husband."

I immediately turned my full attention to
the two men, now suspects, and their
body language only added more.  As
soon as the woman made her statement,
both stopped conversing and both
abruptly dropped their heads forward
chins to chests.  The Firemen were
already turning the corner running to aid
the woman's wounded husband.  They
quickly located the victim lying at the alley
entrance on the west side of Bond Street
about forty feet south of the
intersection.  Their lifesaving efforts were
in vain since the victim had been shot
through the heart.

Other police officers began arriving on
the scene followed soon by the sector
sergeant.  In those days the sergeant
was God, and he soon had the crime
scene secured with police officers
knocking on every door in the block
searching for witnesses.  As the primary
officer, I remained on the scene; until,
everything was completed.  As for
evidence, this was long before DNA;
however, there wouldn't have been any
to have since the suspect simply shot the
victim dead when the victim refused to
hand over his wallet.  The only evidence
that would ultimately be available was the
victim's wife who was the one and only
eyewitness to the murder.

My interview of the wife established that
there were a total of three suspects.  
She told me that only one of the
suspects displayed a gun.  When her
husband refused to give the armed
suspect his wallet, the suspect simply
began firing.  As her husband fell to the
pavement, the armed suspect ran
westbound in the alley behind E. North
Avenue while the other two ran in the
opposite direction northeast across Bond
Street and onto E. North Avenue where I
apprehended them.
     

The Interrogation

After the crime scene had been
processed, I returned to the station
where homicide detectives were
interrogating my suspects.  About an
hour passed when the detectives walked
into the squad room and spoke with me.  
I could sense that all was not going well.  
As we all got seated, one of the
detectives looked at me and sighed,
"Officer...we don't think these guys were
involved."  The detective went on to tell
me that neither suspect knew the other
and that only one had an arrest record
for only minor offenses.  The suspects
told the detectives they were simply
walking northbound on the east side of
Bond Street when they heard the shots.  
When I apprehended them, they were
simply running away from the gunfire.

I knew I had a problem.  Both detectives
were competent and experienced, and,
here I was a rookie with only months on
the job.  I had no doubt that both
suspects were part of the hold-up team,
and now I had to convince these
detectives.

- I pointed out that when the suspects
turned the corner, they were practically
joined at the hip.  For two men who
didn't know one another, they must have
been walking pretty close together.

- For strangers, they had a lot to say to
each other as they leaned against the
Firehouse door.

- Neither suspect said a word to me
when I accosted them.  One would think
they would have been eager to tell me
there was a man around the corner
shooting a gun.

- I described the body language of both
suspects when the victim's wife made her
identification.  While the suspects'
continued silence could not be used as
evidence of guilt, it certainly was unusual.

- I went on to point out that Bond Street
was a narrow residential street.  With no
obstructions between the two men and
the gunfire, they could quickly identify
the exact source of the gunfire.  If both
men were south of the east-west alley,
running northbound, as they allege,
wouldn't much sense.  If they were at or
north of the alley, they would have
turned the corner onto E. North Avenue
long before they did.  While we were only
talking about seconds, they should have
been rounding that corner even before I
began my movement toward the corner.

I urged the detectives to continue their
interrogations of the suspects.  I could
understand the difficulties encountered
by the detectives.  Both suspects had
waived their Miranda rights to counsel,
and both suspects were smart enough to
stick to a pretty simple premise -- they
heard gunfire, and they ran.  As the
detectives returned to their
interrogations, I could only hope that I
had sufficiently articulated the critical time
line which was measured only in seconds.

Thirty minutes passed when the
detectives reentered the squad room.  
Both were smiling and shaking their
heads.  I had underestimated these
guys, but I was glad I had been
diplomatic when disagreeing with their
initial determination.  Both detectives had
returned to their respective
interrogations with a little more than they
had before, and they made the most of
it.  Both suspects, who did in fact know
each other, eventually confessed to their
involvement in the robbery turned
murder, and they identified the third
suspect who actually committed the
murder.

The third suspect would eventually be
arrested; however, the gun he used in
the murder was never recovered.  At the
time of the crime, the suspect was
bearded.  When arrested, he was clean
shaven.  When the victim's wife viewed
the photo line-up, she picked the suspect
as the probable suspect, but she could
not be certain.  Lacking her identification,
and the absence of any other witness(es)
or physical evidence, the third suspect
was never prosecuted for the murder
he'd committed.  The identification by his
accomplices was not sufficient for
prosecution without corroboration.  As
for the two accomplices I apprehended,
they both took a plea bargain for
second-degree murder, and each man
was sentenced to a 15 year prison term.
You're going to be surprised just how
honest most people become when it
comes to identifying a person accused of
committing a crime.  If or when you do
encounter a victim or witness who
purposely attempts to identify an
innocent person, the reason(s) for the
false identification should be obvious to
you  -- if not immediately -- in very short
order.  You'll definitely encounter victims
and witnesses who are reluctant to
identify criminal suspects out of fear of
retribution.  Dealing with the fearful
victim or witness is very difficult, because
your efforts to calm and reassure them
could always be construed as coercion
somewhere down the line.

Here's something you should find
interesting.  If you have ten eyewitnesses
to a crime, you'll never receive ten
identical descriptions of the event.  The
discrepancies may be minor, but there will
always be discrepancies.  However,
assuming the suspect and witnesses are
strangers to one another, when it comes
time for those ten people to identify the
suspect at a later time, it's likely all will
not be able to make the identification
with absolute certainty.  While all the
witnesses were certain of what they saw
during the event, they will subject their
observations to higher standards when
identifying a person from a line-up.

I've mentioned coercion a couple of
times.  You must never do anything to
influence a victim or witness identification
of a suspect.  There are a lot of people
who feel that if the police officer believes
a certain person to be the guilty suspect,
that person must be the guilty suspect.  
Whenever you show a victim/witness a
photo line-up, you should always tell the
victim/witness that the suspect may, or
may not be, in the photo array.  You'll
know pretty quickly if the viewer is going
to be able to make a positive
identification.  

On those occasions when the viewer
cannot make a positive identification, it
won't hurt to ask if there's any photo
that looks like the suspect.  If the
victim/witness indicates one, ask to what
degree of certainty the viewer has.  If the
viewer points to the suspect and replies,
"Eighty percent," that's what you put in
your report.  Let's say the case goes to
trial based on other evidence.  While
testifying, the victim/witness may well be
able to positively identify the suspect in
the courtroom setting.  The defense will
attack the victim/witness based on the
photo line-up; however, a jury can easily
understand the difference between
looking at a photo and a face to face
confrontation.  If you'd just submitted
the line-up with a simple statement
indicating that no identification could be
made, the jury would never know that
the victim/witness took any interest, let
alone an eighty percent interest, in the
suspect's photo during the viewing.

Now...that can go the other way as well.  
The viewer could point to one of the fill-in
photos as looking most like the suspect.  
I mention this because it did happen to
me a couple of times.  No matter, you
still record that information in your
reporting.  Remember, all the photos are
going to look very similar; that's the
purpose of a fair and impartial photo
line-up.

Never forget...you're the truth seeker.  
Victims and witnesses are either going to
be positive in their identification of
suspects, or they won't be positive.  
Sure, they may be almost positive, and
it's perfectly acceptable to report that
fact.  However, you must never attempt
to convince a victim/witness, either by
overt or subtle means, to make a positive
identification.
"Defense attorneys will always attack
eyewitness identifications by any
means available to them; however, it
is ultimately up to a judge or jury to
determine the accuracy of eyewitness
identification." ~ Barry M. Baker
Copyright © 2016  Barry M. Baker  
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