Bassel Khalaf:
Welcome to WK Pod, home of the never ending podstable where we discuss legal issues. Some of our guests are attorneys, some are not. Do not take anything on this podcast as legal advice. If you have questions about a legal issue, get your own attorney. Peace!

Bassel Khalaf:
All right, this is the first Westendorf and Khalaf podcast ever. It's 2020. We're in the middle of COVID. We're in the middle of impending race riots, and everything's going to shit. This is the perfect time for us to talk to you about identification in criminal cases, which probably might not mean anything to you until we give a little more context as to what that means for criminal defense attorneys. I'm Bassel Khalaf.

Taite Westendorf:
I'm Taite Westendorf.

Bassel Khalaf:
And we are the lawyers at Westendorf and Khalaf. So talking about criminal cases that have identification as an issue. What does that mean?

Taite Westendorf:
Alright, so one thing that I guess everybody almost takes for granted in a criminal case is you've got to prove identification, meaning that the guy who's charged, who's sitting there at the lawyer table with his lawyer is the guy who actually did the crime. So at some point, you have to have somebody take the stand and point the finger and say, that's the guy who did it, whether that's a cop who saw what went down or a witness. And it sounds pretty straightforward, but it becomes a hell of a lot more complicated in a lot of cases, and the research has shown that it's the number one cause by far of bad convictions.

Bassel Khalaf:
So some of that stuff is not just that guy over there might have done it. And then oh, I see him in the jumpsuit. Oh, I'm definitely sure he did it. It's just a sort of conflation of the maybes and the certainties. And then you get to trial. And suddenly, of course, that's the guy cuz he's sitting at the table. There's also other elements to it. Specifically, cross racial identification has its own sort of nuance and the set of data that might show that those specific circumstances are more ripe for false identifications.

Taite Westendorf:
Maybe the best way of trying to explain this is to start with an example. So sort of your classic example of a case that might create an ID issue is there's a 7-11 clerk, they worked a long shift, it's the middle of the night, all of a sudden, a guy comes busting into the store, sticks a gun in their face, demands money. The entire transaction takes 10 to 15 seconds, the guy runs out of the store, and the police come on scene, and the person describes in very vague terms, this person who robbed them, you know, it was a African American, he was maybe about six feet tall, average build. And that's about it. And then, the police maybe develop some suspect based on some shady character who lives in the neighborhood who they think might be involved. And they bring that guy over to the clerk and the clerk says, that's the guy, that was the one. So that has all sorts of possible problems to it. One of the major problems with identifications are that historically, the police have done a lot of what are called show up-identifications and a show-up is where you just show one person, one suspect, for identification. And so obviously, the problem is there's only one person to ID, and usually they're with a police officer. So clearly, the police think this is the guy that's that has done it, which sends a strong signal in and of itself. And then there are a whole lot of other problems that psychological research have identified. Like for instance, Bassel just mentioned cross racial identification, which can be a little bit of a touchy one, but it's a real thing. It's consistently been shown in research that people are best at distinguishing faces within their own racial group. So in other words, white people are our best at identifying other white people. And people of other races tend to look more similar to them. And it's true, it's not just a white phenomenon, it actually transcends that. All the research also shows the more exposure you've had to a racial group, the better you become at distinguishing people in that racial group. The research has shown like in the United States that both whites and blacks are really bad at distinguishing Asians, which maybe it doesn't sound politically correct, but it's something that if we want to actually get good results in the courtroom we've got to be aware of.

Bassel Khalaf:
So just cutting into the sort of nitty gritty of any criminal case would be there's a crime that's alleged, there's elements to the crime. And we typically look at can the prosecution prove all those elements? So for an assault and battery. Was there a touching? Was it harmful or offensive. But the one that gets overlooked is kind of the most essential one, which is, was it that person who did it, and then that's one that gets taken for granted a lot. And we, as defense attorneys, get plenty of clients who say I didn't do it. And just being a realistic person, you're not getting the the full story from your client. But sometimes, they might have a point, maybe there's just no evidence that it was them. And when it's just simply somebody pointing the finger. I had a case once where the guy sat in custody for a month and a half. He actually didn't really want to talk to me about the case much. He just said, I'm gonna wait for my day in court. And we got up for the preliminary hearing. And he gets trotted out in cuffs. And he's in a neon orange jumpsuit. And the prosecutor has his first witness who's sworn in and asks, hey, you know, what, whatever basically gets the background information on what happened and then asks, do you see that person in court today? And the witness says, no, that guy who's standing right there next to the attorney is not the guy, I can tell you with 100% certainty. That's not the guy. So the guy looks at me with sort of a nod and a shoulder shrug of, I told you bro, and it's like, No, you didn't tell me you didn't tell me anything. But here we are. And now the case has to be dismissed. But those types of situations, they come up, and prosecutors need to make sure they're doing their diligence, where they're not just pushing the file through the process where they're actually using best methods to ensure that lineups are done properly. That witnesses are corroborating everything that's in their file in terms of what the police have put as a summary. You know, short of the guy confessing, you really need to make sure you're doing your homework. Otherwise, it's just going to be a court date, where hey, is this the guy? And if you have an honest prosecution witness, they're going to honestly tell you, I think so. Or maybe 99% of the time, it's yes, that's the guy but then you always have it in the back of your head, are you saying that's the guy just because he's in a jumpsuit, he's in cuffs. He looks sad and homely from being in custody for a few weeks. That's always a problem. As far as cases where you have to make a motion to a judge to try to get something favorable for your client on an identification issue. There's a few major Supreme Court cases. What are what are the major ones you run into? Basically, the ones that you throw in front of a judge?

Taite Westendorf:
Yeah. That's a big part of the problem, actually, is that the two big US Supreme Court cases that deal with identification are both really old. There's one called Neil v. Biggers and Manson v. Braithwaite. And they set out this criteria for what should be considered as far as the reliability of an identification and whether it should be admissible in court, and it's a really low bar. But some of the factors they talk about are the certainty of the witness. So for instance, if the witness comes to court and says, well I'm 100% sure that's him, the court says that's something that you should consider in favor of admitting the identification. Now, the research that's been done in the 40 to 50 years since that case says, Well, that's just a crock of shit. You know, saying you're 100% sure is absolutely meaningless. There's no correlation whatsoever between somebody's expressed level of certainty and the actual reliability of the ID. It talks about things like the prior description that the person made. So like, the more detailed the description the person provided of the suspect, that would tend to weigh in favor of the reliability of the identification. It talks about how recent the identification was from the exposure to the suspect. So if somebody is providing a description of the suspect, 15 minutes versus 15 days after the event that it makes it more reliable in the eyes of the court. One of the big questions that comes up all the time is what reform can we put in place to prevent these bad identifications from happening? Because, you know, the Innocence Project, which is an organization that's been devoted to looking at convictions. They get new DNA evidence. And through their work, they've overturned nationwide, something like over 350 bad convictions in serious cases. I mean, we're talking things like murders, rapes, robberies, and the number one cause of those bad convictions by far and away was an identification with somebody coming into court and saying that's the guy when forensic evidence later proved that it wasn't. And so some of the very simple steps that have been identified, and these are so simple, it's almost unbelievable that we're not doing them on the reg already. One is we shouldn't do show-up identifications, you should not show a single person, a single suspect to a person for an identification because that just ends up predictably, resulting in trash identifications. You should not just trot a guy out in the courtroom in shackles and an orange jumpsuit for the first time with no prior identifications. And so is this the guy? So that's step number one. Step number two, is you need to have a lineup. So a lineup has filler photos. So in other words, you're looking at more than one person, so you have the suspect that the police thing might have done it. And then you have at least five other people's photos. And those people need to be reasonably similar to the suspect. So in other words, you can't have five Hispanic guys and one Black guy, that's a suggestive lineup. Alright, so you have to have people that are roughly of the same age, obviously, same racial group. You know, if they've got some distinctive characteristic like dreadlocks, you need other guys with dreadlocks. Reasonably similar filler photos. So that's another one. Another one is that the administration of the lineup needs to be double blind. And what is meant by that is that the police officer or detective who's conducting the lineup shouldn't know who the suspect is. So the lead detective on a case shouldn't be handling it, because the idea is that they because they know who the suspect is, they could be sending sort of subtle clues as to who they think it is. So it needs to be a double blind lineup administration. And those simple steps right there have been proven to eliminate a lot of bad identifications. And in fact, where we practice in Virginia Beach, for years, Virginia Beach has had a model policy that has all those steps, but there's no actual law that says you have to do it. So police officers ignore it all the time.

Bassel Khalaf:
Just a few things. I think with the George Floyd tragedy and aftermath of it, there's a lot of talk about how much training do police actually get. And we've all scoffed at sort of the phrase my training and experience because that seems to be police code for, hey judge rubber stamp me, I'm a cop, I know what I'm doing. And honestly, that's not how the system should work. But there are things that as lawyers, we've gone to college, we've done post college, higher education. And you learn about things like bias, different types of biases. And maybe somebody who doesn't have the full educational background might not realize how suggestive they might be in asking questions. So it's not necessarily sort of nefarious intent from some of these officers. But the police training, I'd be interested to know how much training they get on, you know, you are as a person of authority, you can put thoughts in a person's head. We got to get this guy off the streets. And then we've got this pathetic looking guy by the cop car in cuffs staring at the ground. I think we got your guy. Is this the guy? I mean, there's certain things that could be done to remedy that approach to cases which might end in wrongful convictions. I take it you don't really have any insight into the nitty gritty of police training, or you've never really explored that in any of your cases, right?

Taite Westendorf:
Yeah, well, it's true. I've never been through the police academy, so I'm not in a position to say firsthand what kind of training they receive specific to identification. I can tell you that having raised identification issues with cops in a lot of cases, the general reaction is sort of eye rolling like, Oh, you really expect me to do that out on the street? I've got a suspect and I need to instead of showing him to a witness, I've got to go arrange a lineup. You're clueless, Mr. Lawyer Man. You don't know how shit works on the streets. And, you know, I get from their perspective, it's probably really inconvenient. And so I can kind of get it. But look, I mean, that's what the research shows. This is not some lawyer made up bullshit. This is very, very real. That people have been sent away to prison for life. And not just one guy. This is not just some random outlier. This is hundreds of people. And you know damn well, that's the tip of the iceberg, because there's only this small fraction of cases where DNA became available decades later and could be retested.

Bassel Khalaf:
Yeah. And even as somebody who's been through college and post graduate law school, all this type of stuff, I still, you know, I flip on the news and A-hole Magoo shoots five people. He's said to have confessed, or he's said to have been identified as the guy. Your first thought is, let's fry the guy right now, we don't really need a trial. And then I kind of kick them nasty thoughts and have to check myself and think, wait a minute, I know for a fact that this is a thing, that sometimes people get it wrong. Of course, the media gets it wrong sometimes. And confession isn't always a confession. And the police are essentially trained to get people to confess, which is always baffling to me, because it's basically, you know, do everything you can to secure the conviction not to ensure that you've controlled for biases, or whatever the case may be. And that's another thing. I mean, we started talking about aftermath of George Floyd and what can be changed. Training on that, to me should be first and foremost. You can't train enough on things like that. And then when police talk about their training and experience in courts, and you prod a little farther, it oftentimes becomes well, I took a one hour class on it. And it's like, cool story bro, I prep this case for five hours. And I went to undergrad for four years, and I was a psych major. And I, you know, you've I've got more insight into this than you do by far, but the judges, they defer because you're the person on the ground floor dealing with the streets. So it becomes sort of end of story. In the end, you've got the scenario where a person might be arrested, and they're trotted out for the first time at the preliminary hearing. And the witness is asked who did it and the witness simply points over and says, Oh, it's the guy next to the attorney in the jumpsuit and the handcuffs. I was thinking, a remedy could be if you think there might be an identification issue in your case, maybe we could dress the defendant in plain clothes, have him sit somewhere in the courtroom and say, all right, turn around, look at the courtroom of 20 people. Can you pick him out now? And that would be a wonderful experiment because you would then see that a lot of times you'd say, oh, it might be that guy, it might be that guy, it might be that guy. But sometimes they'd say, Oh, it's that guy in the third row. That motherfucker did it. And he's got that dumb shit eating grin on his face that he had the day he did it. But that benefits everybody, because now we know identifications off the table. But you know, I don't think judges would go along with that. I honestly would have to then ask myself, why not? And maybe have to kick myself for not trying it if it came up. So I think I will try that approach or at least make a motion to have something similar to that done. Short of that, though, is there any remedy to controlling for tainted testimony of a witness towards a person who's being trotted out for the first time?

Taite Westendorf:
It's very, very tricky. I think it has to start with educating judges, and allowing attorneys to educate jurors. When I say educate jurors, I mean through expert testimony. Because you can have experts, psychologists who can come in and testify in court and testify, memory doesn't work the way that a lot of people think it works. It's not like a video recorder that is in your mind. You sort of assemble bits and pieces of memory and it's very messy and you can't just push play and replay an event in your memory. And you can have ideas implanted into your head, you can have faces substituted into your memory. I mean, human memory is just a giant mess. And then you can have experts who can explain cross racial identification is a thing. Studies have shown that white people have, you know, the studies I've seen, it's usually about a 10% effect. 10% less likely to be able to distinguish black faces. Weapons focus is another big one. If there's a weapon involved in the crime, the research has shown that people tend to focus on the gun or the knife rather than the face of the person who's committing the crime. The effect of stress on memories, studies have consistently shown that when somebody is experiencing an extremely stressful event, they are less likely to be able to reliably remember it. And that's really completely counterintuitive, because we have this idea that, you know, people bring up like, you know, where were you when, our parents generation when Kennedy was shot? Or where were you when you found out about 9/11. And people have the idea that they have these flashbulb memories where, oh, I remember it so well. And it turns out that really is a crock of shit. And so having somebody there who can actually explain the research to a judge or a jury, I think is a great start. And I think it needs to be admitted way more frequently in cases like that.

Bassel Khalaf:
Yeah, I've heard this thing that you always see your nose wherever you are. If you close one eye, you see your nose. If you close the other, you see your nose. So your nose is always in front of your vision. But at the same time, your memories don't have your nose in it, your brain makes things up. Your brain eliminates your nose, your brain fills in gaps. So it's almost this frailty of man is we're not perfect. And the idea that, you know, the police can come in and sleep at night after they've given the testimony and say, I'm 100% sure I've done the right thing. Yeah, I get it. I don't think that they are intentionally misleading the court or they're intentionally trying to secure a conviction to close out the file. But I think a lot of times just the educational background to realize the limitations on the human mind just aren't there. And that could be part of the training. Judges could be a little more sympathetic to that. And again, yeah, anytime we put on an ID motion, and the person says, h, yeah, that's the guy. That usually, that's the end of story. But there should be a little more sensitivity to the fact that sometimes that's not the end of the story. Sometimes they get it wrong. Sometimes you have an impressionable person who's given a confession. So you couple that coerced confession or whatever it may be with faulty shaky ground ID. And then you end up in a spot where a person's sitting in prison for life. And it's shit. But you know, what are you gonna do? I guess that's life. I was gonna ask, you put this motion on way more than I have as far as potentially bad IDs. But as far as war stories, do you have any any cases that either went your way or one that almost or one where it's like, that's the one that got away? Because I should have fucking won, but I didn't.

Taite Westendorf:
Yeah, the one that is most memorable to me. And I think it is really why ID is so near and dear to my heart. It was the very first jury trial that I ever did. It was a young kid. He was 16 when it happened, but he was tried as an adult. And it was for a robbery of a 7-11. Which is probably why I brought up that scenario earlier as a hypothetical. But he was a black kid. There were two white clerks, one male, one female. And so after the store was robbed, one of the clerks saw a kid walking in the neighborhood a couple of days later and said, that's the guy who robbed us. And then they did a photo lineup with the other clerk, the other clerk did not pick him out of a photo lineup. But then in court, when he saw him for the first time said, Yep, that's him. And so when I came into that case, it was a major uphill battle. I mean, you had two different witnesses who we're both saying in court, I am certain that is the person who robbed us. So as it turned out, we were able to get school records that showed that the kid was sick as a dog and had missed school that day. So the idea that he was out at three in the morning committing this gunpoint robbery sounded pretty bizarre. There were actually forensics that ended up getting done where they recovered a fingerprint off the door of the 7-11 and it matched some convict who was in prison elsewhere. And so then, you know, when I got an expert on the case, that was one where the judge was one of the more progressive judges on that particular issue, and he gave me money to hire an expert. I had the expert testify at trial, and we talked about cross racial identification, and we talked about weapons focus. And at the end of the day, 11 out of 12 jurors just weren't convinced. And I was really proud of that. It was a mis-trial. And then the prosecutor dropped the charges before we had a second trial. And as far as I know, that kid, I don't want to say his name, but he was from Minnesota. I think his family went back to Minnesota, and it's been 12 years now, since that case, so he's in his late 20s now, and I think he has gone on to a fruitful life.

Bassel Khalaf:
That's awesome. Geez. Well, yeah, I mean, that's the point of you need a good defense attorney. Prosecutors and police can't just be, you know, they can't be assumed that they're always going to do the right thing. So in our firm, we love to look into every little issue because you never know where you might uncover something. Just on the thought of memory and being sure of a thing. My war story is not a case, it was me and my wife, my wife's a very smart human being, she's borderline genius and has a photographic memory. And she always called me out on shit from like, 10 years ago as wives do. But there was one time where we were trying to figure out where we're going. And whatever the directions were, she was certain it was one way, I was certain it was the other. And only one of us could be correct. And we said, from here on out, the other must defer to the other forever, depending on who ends up being right. So, you know, I've had enough prompts mentally in my head to know that I was right. And she was pretty sure and with her little genius brain, she was 100% wrong. And I was the correct one. But it just kind of gave me that sort of idea that it doesn't matter how smart you are. It doesn't matter how good your memory is. You could think with 100% certainty, you're correct. But Nah, you might get it wrong. And when you have a person's life on the line, and in the criminal court context, it's all the more important. So, anything besides my stupid fucking story I told you that sort of watered everything down?

Taite Westendorf:
Well, just one last point that I would make is that what makes that sort of testimony so difficult for a defense attorney to handle is that the people who are making the bad IDs, they're not doing maliciously. It's not some nefarious plan where they're twirling their mustaches and like, ooh, I want to get this innocent man convicted. They're just genuinely mistaken. They don't know. And that makes it really immune from traditional cross examination. Because traditional cross examination is designed to attack lying, people that are deceiving. And so that's what makes it so, so tricky for a defense attorney to go after a bad ID.

Bassel Khalaf:
Yeah. All right. So that's our very first podcast ever. What do you call this dumb thing? The never ending podstable. I don't know why I did. It's a dumb name, but we're gonna stick with it because YOLO.  I guess we'll leave it at that and till next time, peace.