Behind the Double Blind: Eyewitness ID Report Reveals What Dallas PD Already Knows

Categories: Crime
It wasn't so long ago that Dallas Police Department would show witnesses for the prosecution six photos of would-be suspects and ask: Which one? Which is how, in part, Dallas became what Innocence Project of Texas founder Jeff Blackburn called "ground zero for criminal justice change" in our 2007 cover story on how so many found themselves incarcerated for crimes they didn't commit. But in '09, all that changed: Initiated by then-Chief David Kunkle, DPD now has a special unit of officers without connections to any case who show witnesses one photo at a time -- the so-called "sequential double-blind" method.

Back in August, in the wake of a Supreme Court ruling concerning a New Jersey case that said eyewitness procedures there were profoundly flawed, The New York Times checked back in with the DPD, which had to overcome some initial resistance ("detectives ... felt that their integrity was being challenged") during the transition. But it was worth it: This morning, the American Judicature Society, in conjunction with the Innocence Project, released a report that looks at 850 lineups in four cities, among them Austin, which reiterates the need for and success of double-blinds. Says the study, per this recap: "Photographs presented one by one by a person not directly connected with a case significantly reduced identifications of fillers (people known not to be the suspect) from 18 percent in simultaneous lineups to 12 percent in sequential ones."

Dallas is once again cited as an early adapter, though there are exceptions ("Other specialized circumstances where alternative procedures are necessary and are reviewed by the District Attorney and approved by the Investigations Bureau Commander"). But in its list of Texas jurisdictions requiring the double-blind sequential presentation, only Dallas and Lewisville are listed under "required"; in Austin and Richardson, it's "optional."

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J. Erik Jonsson
J. Erik Jonsson

The last time I had jury duty, the panel was being questioned for service on a child sex abuse case for which, we gathered from the questions. the child in question would be the only prosecution witness.  Heartbreaking even to contemplate.  Multiple panel members asked questions about or commented on wrongful convictions based solely on the eyewitness testimony of the victim.  This caused the ADA to try to commit those panel members to the idea that if they believed the testimony of just one witness they would vote to convict.  Not all of them would answer in the affirmative, and while I don't know if the judge then struck them for cause, it is my understanding of Texas law that the prosecution is entitled to have jurors who are willing to convict on the testimony of one eyewitness.  I think that's fundamentally unjust on at least 2 levels.  First, we know too much about the unreliability of eyewitnesses (as we see here, there's a significant error rate even when police are as careful as possible).  Second, though I think jurors should be required to follow rulings of law from the judge, eliminating jurors for having an understanding about the reliability of certain kinds of evidence gives too much power to rulings of law.  We need jurors to be a common-sense check on legal rulings, especially in the criminal context.

Also, anyone else notice that DPD and the Dallas DA's office are developing a reputation for transparency and fairness?


All I can think is that even a 12% error rate is to high. If I was a defense attorney, and the only evidence was an eye witness who identified my client through one of these photo line-ups, I would be bringing this up. Keep in mind that all it takes is putting a reasonable doubt in the jurors' minds.


It's absolutely not the case that prosecutors are entitled to jurors who can convict on the basis of a single witness.  What you probably saw was a nifty bit of slight of hand to get the prosecutor a jury pool slanted in that direction.

The "one witness" question, if asked directly, would not serve as cause to strike the juror, because jurors are absolutely free to require more than a single witness to convict.  The prosecutor could still strike the juror, but they'd be required to use their challenges to do so  In order to prevent having to use those challenges, prosecutors tend to ask the question in this form:

"If we only present one witness, but based on that witness's testimony you believe beyond a reasonable doubt that the defendant is guilty, can you convict him?"

Once you strip out the extraneous information, that question is really "If you believe the defendant guilty beyond a reasonable doubt, can you vote to convict him?"  That question is a question with only 1 right answer for a valid juror, and that answer is "Yes".  However, the question is phrased in such a way that many people actually think the question is "Could you vote to convict based only on a single witness". By answering "No" they make themselves targets to be struck for cause.

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