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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 © 2018  Barry M. Baker  
CareerPoliceOfficer.com
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