By Janaina Matida and William Cecconello
“Live again the life I had, quiet walk, with his head held high, like i've always walked around [1]” (Tiago Vianna Gomes)
“I'm feeling kind of sad, insecure with all this situation. I'm afraid I'm going to have to go back to prison., even proving my innocence, showing evidence that I was working, i'm afraid of justice fail again and i get arrested [2]“ (Joao Luiz da Silva).
“After I went through this big mess and lack of care of public officials, and live and see a reality I never thought i'd experience, I came to the conclusion that, for those who ask for the arrest, miss is nothing, since you don't have to answer in court for that error, then falls into banality where only numbers are looked at and prejudge with their prejudices. If they did the least investigation into my person, they'd see that I don't have the profile of the accused., but prefer to look at the black person who lives in the suburbs and already accuse of a crime in another municipality, without any proof. What I realize today is that justice is much more of a bureaucracy than justice in fact, in the current model made to be slow, to humiliate guilty and innocent. Would it be if I lived on the seafront, in the south side, and my skin was white, this mistake would have happened? [3]“ (Raoni Lazarus).
“After all this time I've spent in there and seeing what's going on with these other young people, like John, Jeferson, Raoni and Alberto, gives me a knot in the throat and I question: this will never end? We, young black people, we will always be at risk of being deprived of our freedom at any time? Anyway,?This is never going to end? We are the ones who have to create prove to prove our innocence and not state? Why is it?!! [4]“ (Angelo Gustavo Pereira Noble).
James, John Luiz, Raoni and Ângelo Gustavo had their trajectories crossed by similar facts: are innocent who have unjustly been engulfed by our justice system. The phrases with which we have decided to start today's column represent your longings, Fears, their revolt and their justified questioning. They're all black. They all had their lives damaged by a misdeed by the justice system. They were all victims of false recognition.
On the eve of International Day of Unjust Condemnations (Wrongful Conviction Day, 2 October) it's more than timely to reinforce that they all deserve to have their voices heard, their lives considered. It is society's duty to reflect on the practices that lead to unjust convictions and, with regard to those who work in the justice system, there is no way to exempt themselves from the fact that wrongful convictions are the product of a chain of irregularities committed by some, seized and chanced by others. Taking seriously to avoid unfair convictions will require a behavioral spin that, among other things, should lead to the abandonment of the logic of jet investigations that are content with genuine evidential voids. It is necessary to go towards the development of an epistemically oriented research that does not offer unjustified protagonism to a single evidence, much less when it is irregularly produced.
We understand that we are, once again [5], timely to deal with recognition because the care flagged as necessary by the memorable vote of Minister Rogerio Schietti in the trial of HC 598.886/SC continue to be systematically ignored by the actors of the criminal justice system. Recent cases of errors in recognition are representative of practices that are repeated in brazilian police stations abroad. These practices involve the use of photographs in albums of suspects, social networking photos, photos displayed to victims/witnesses informally by sending whatsApp message (“Hello, we got the guy. Here's a picture… The lady could stop by the police station to recognize you.?”). These practices are justified by criticism from those who deal with human memory. The recognition of someone as the perpetrator of an offence depends on access to the memory of the victim/witness. When employing inherently suggestive methods such as “suspect album”, there's simply no way to rely on the note that comes to you. But the more justified criticism stemming from the odious practices already mentioned should not be hastily extended to any and all use of photography. Let's see why.
1) Human memory and irrepeatability of recognition
Human memory has been shaped with a specific function: learn. For being specialized in learning, memory is malleable, so that whenever information is retrieved from memory, it now finds itself in a transient state in which new information can be inserted into the original memory. With regard to the recognition of persons, the malleability and function of learning generate a non-negligible effect: when a face is presented to a victim and the victim recognizes him as being the perpetrator, your brain “Learn” that recognized face is the face seen at the crime scene [6]. Like this, all recognition is directly impacted by previous recognitions, recognition being the opportunity in which one can have access to the most contamination-free memory possible [7]. That is, recognition made in court using appropriate methods does not have the ability to remedy the effects of an irregularly produced first recognition. Being the first primary recognition for the identification of authorship, it is necessary to ensure its proper realization.
2) Fair alignment as a necessary condition
The literature has shown that the most reliable method for the presentation of the suspect is the alignment (or line-up) in which the suspect is presented with other non-suspects (usually five). Alignment should be fair, should serve to protect innocents from the risk of being unfairly chosen. Therefore, it is worth taking care that the suspect does not stand out from the other, and all faces present must be compatible with the description offered by the victim/witness. Fair alignment is not reduced to the mere numerical requirement or plurality condition of subjects. The absence of prominence, so to speak, is what serves the protection of the innocent that might join a line: what should be avoided is that other factors (ex.: inmate's clothing, Handcuffs, clothes of other members of the queue who are notoriously employees of the Justice…) other than the memory that the victim/witness withheld from the culprit contribute to the selection of.
3) Irregular recognitions
Needless to say,, in Brazil, in the most of the time, when alignment is performed, it is carried out with little rigour as a step following a first recognition through which a single face was displayed to the victim/witness. The inherent suggestibility of the show up is followed by a procedure that serves to optimize false recognition. It's saying: the victim/witness has seen the photograph of a single suspect and is now called to point it along with other subjects. The familiarity of the suspect's face, caused by previous recoknowledge, will play a crucial role in the false recognition of.
Or show-up is the most inappropriate procedure for recognition. Research has pointed out that, among all forms of recognition, or show-up is the one with the highest risk of false recognition [8]. This is because in the show-up the victim/witness must compare the face presented (suspicious), with the face seen at the crime scene. Like this, if the witness's brain thinks the suspect is sufficiently similar to the memory of the perpetrator, or “recognition” Happens. The absence of comparison between a plurality of similar faces with the face of the culprit increases the chances that a similar innocent person will fill, alone, the gap that the victim/witness is eager to solve.
We have already mentioned that the album of suspects is inappropriate procedure, but now it's worth saying it in more detail. As its name indicates, the album of suspects serves to display various faces of people suspected of the practice of crimes, what, by itself, already gives the understanding that there are high chances that the perpetrator is present. It is also noteworthy the cognitive overload it imposes on the victim/witness, to whom it is worth noting a large amount of faces at the same time. Like this, recognition by suspect album is also an inappropriate procedure, since it may impair the ability of the witness to correctly recognize an author, and increases the risk of false recognition.
It is essential to point out that at this point there is confusion in terms used by actors of the Justice system. Recognition by show-up or album of suspects should not be used as synonyms of photographic recognition. Show-up consists of displaying only one face, which can be done by photo or in person. The album of suspects, in turn, makes a misrepresented use of photographs from the display of multiple suspects at once. These are practices that should be abolished because they facilitate false positives, as already flagged. But the use of photos doesn't need, and should not, be reduced to hateful practices. On the contrary, considering for the requirement of fair alignment, for instance, it is notorious the greatest facility to have at hand five photographs of subjects effectively similar to the suspect. Photographs should be standardized, all featuring the same quality (which in no way gets confused with the photos of social networks). On the other hand, how to expect each police station to have the presence of five people similar to the suspect at the disposal of reconnaissance? It is simply unrealistic to assume that the institutional design of the investigative stage may depend on the fate of having available people with the same physical characteristics that the victim/witness listed as being those flaunted by the suspect waiting for recognition, brazil police stations out there. It is precisely because a procedure must be ensured to protect the innocent from the risk of being falsely singled out, that we should consider the alternative of photographic recognition [9].
4) Building an epistemically valid recognition: alignment, Instructions, double-blind and no positive feedback
Together with fair alignment it is extremely important that appropriate instructions be used for victims/witnesses. Victims/witnesses tend to believe that if they don't recognize a face they'll be harming police work, for that reason, it is important to inform that the offender may or may not be between the faces and that not recognizing someone is, yes, a possible answer [10]. It is also important to avoid any feedback confirmatory, as when the investigator tells the victim/witness that she pointed out the person the police had in mind. Feedbacks such that have the effect of inflating the degree of confidence that the victim originally had in the outcome, so that, from the confirmation offered by the researcher, she now has a higher degree of confidence than she originally had after you have made the appointment [11]. It will be this inflated degree of confidence that the victim/witness will report when asked about it; as we know, he may contribute to the unjust conviction of an innocent. High degrees of confidence are not, by itself, conclusions about the true content of memory.
From what has been exposed, it is clear the importance of carrying out recognition that observes the conditions of: a fair alignment, These, in turn combined with the offering of appropriate instructions, able to prevent any compromise effect that the victim/witness is able to feel, correlating the continuity of the investigation to someone's appointment. In addition, we've also seen how much it takes to eliminate the offer of Feedbacks to the victim/witness, because memory flexibility causes the malleability of the degree of confidence.
Compliance with the meeting of these councils is a necessary and not sufficient condition for any evidential value to be, reduced that is, recognition made - whether he is in person or photographic: is a necessary condition because absentees do not guarantee minimum reliability to the result (given that the justice system itself will be contributing to false positives), is insufficient condition because even when all recommendations are followed, how human memory is fallible, the need for that recognition to be corroborated by other evidence extracted from independent sources will always be imposed.
It is precisely because we care about the effective scope of citizens' rights when investigated/prosecuted that we clarify that the defense of photographic recognition does not imply naturalization of illegalities committed in the investigation. The photographic modality should be explored as an alternative that can be developed to offer epistemically reliable results, but that, without a doubt, should have their production protocolized and institutionally regulated. In this sense,, seriously considering the alternative of photographic recognition, new challenges should be seriously addressed. The origin of the photos (there are legal systems that pay citizens to use their photos, others who use photos of people who have passed away, finally also those who use photos of people inside the justice system), criteria justifying their inclusion in any mosaic, deleting photos from photo banks, and so on. These are the real challenges we have to take if we are to avoid wrongful convictions.
[1] RJTV “Photos that condemn: man was recognized nine times wrongly as if he were a thief“, 30/9/2021.
[2] Message that one of the authors of this column, Janaina Matida, received from João Luiz, when he asked how he felt about criminal prosecutions by those he currently responds to. To know the case, To watch: https://recordtv.r7.com/balanco-geral-rj/videos/familia-tenta-provar-inocencia-de-tecnico-de-enfermagem-preso-no-rj-06092021
[3] Message that one of the authors of this column, Janaina Matida, received from Raoni, when he asked how he felt about the unjust prison to which he was subjected because they had mistaken him for another Raoni. To learn more about the case, To watch: https://noticias.r7.com/rio-de-janeiro/rio-justica-solta-cientista-preso-apos-ser-confundido-com-miliciano-09092021
[4] Report offered by Ângelo Gustavo to the episode of The Prerogatives Group on YouTube “The task of recivilizing Brazil, with André Nicolitt”.
[5] The columnists of the Penal Limit have already dealt with the recognition of people other times. See: Lopes Jr., The.; Morals of the Rose. The “Memory is not polaroid: we need to talk about criminal reconnaissance”, 2014; Matida, J. “The recognition of persons cannot be open door to criminal selectivity”, 2020. Matida, J. et al. “The proof of recognition of people will no longer be the same”, 2020. Matida, J.; Nardelli, M.M.. “Suspect album: once suspect forever suspect?”, 2020.
[6] Cecconello, William Weber, and Lilian Milnitsky Stein. 2020. “Preventing Injustices: How Testimony Psychology Can Help Understand and Prevent False Recognition of Suspects.” Avances En Psicologia Latinoamericana 38(1):172—88. Doi: 10.12804/revistas.urosario.edu.co/apl/a.6471.
[7] Cecconello, William Weber, Gustavo Noronha Avila, and Lilian Milnitsky Stein. 2018. “The (Go)Repeatability Of Memory-Dependent Criminal Evidence: A Discussion Based on Testimony Psychology.” Brazilian Journal of Public Policies 8(2):1057—73. Doi: 10.5102/rbpp.v8i2.5312.
[8] CLARK, S E. Costs and Benefits of Eyewitness Identification Reform: Psychological Science and Public Policy. Perspectives on Psychological Science, [s. l.], v. 7, n. 3, p. 238—259, 2012. Available at: https://doi.org/10.1177/1745691612439584
[9] Matida, Jana,; CECCONELLO, William W. Photographic recognition and presumption of innocence. Brazilian Journal of Criminal Procedural Law, Porto Alegre, Vol. 7, n. 1, Jan./Apr. 2021. https://doi.org/10.22197/rbdpp.v7i1.506
[10]. STEBLAY, Nancy K. Lineup instructions. In: B. L. Cutler (Ed.), Reform of eyewitness identification procedures., p. 65—86. Washington: American Psychological Association 2013. https://doi.org/10.1037/14094-004
[11] STEBLAY, Nancy K; WELLS, Gary L; DOUGLASS, Amy Bradfield. The eyewitness post identification feedback effect 15 years later: Theoretical and policy implications. Psychology, Public Policy, and Law. Washington, v.20, n.1 American Psychological Association, 2014.