2023 KRM 210 (A) STUDY UNIT 3 (1).pdf

STUDY UNIT 3: INFORMATION THROUGH COMMUNICATION 1 ORIGIN OF PERSONAL DESCRIPTIONS In this study unit we delve deeper into subjective/direct information in criminal investigations and its application. Subjective information is gathered from people in a criminal investigation by talking to them an...

STUDY UNIT 3: INFORMATION THROUGH COMMUNICATION 1 ORIGIN OF PERSONAL DESCRIPTIONS In this study unit we delve deeper into subjective/direct information in criminal investigations and its application. Subjective information is gathered from people in a criminal investigation by talking to them and posing questions. It is estimated that the vast majority of a criminal investigator’s time (up to 90%) is spent on gathering, processing and evaluating subjective information. Without the cooperation of people who have information about a crime that was committed, the criminal investigator can barely function. The ability to obtain from a victim/witness a description of an offender in words, is an important skill for the criminal investigator; in fact, before the advent of fingerprints as a means of identification, descriptions of offenders formed the basis of police files. Alphonse Bertillon is considered the founder of personal descriptions as a means of identification in criminal investigations. 2 Bertillon, used Quetelet’s supposition of uniqueness, which posits that no person has exactly the same measurements and sizes across their body, to develop the anthropometric method of identification, or anthropometry, as a method of offender identification Bertillon’s method was called the Bertillonage, and entailed the measurement of eleven key points of the body (e.g. the length and breadth of the head and the distance between elbow joint and fingertip), plus a description of the perpetrator’s eye, hair and skin colour. Bertillon calculated the odds of two persons having the same description and measurements as being 4 194 304:1. In modern criminal investigation descriptions remain an important starting point for an investigation and finds operationalisation in practise in various forms (e.g. an IdentiKit and police artist sketches). 3 WHAT DO PERSONAL DESCRIPTIONS (PDs) ENTAIL? At this point it is important to distinguish between different types of witnesses (direct sources/subjective information) in criminal investigations.  An eyewitness is a person who personally saw the crime transpire. For example, a customer at a 24-hour Sasol tuckshop, who sees a robber walk up to the counter, raise a gun, and shoot the cashier during a robbery, is an eyewitness.  A corroborative witness is a person who can provide information about the circumstances which surrounded a crime. For example, a person who was walking towards the tuckshop when he heard what sounded like a gunshot and saw a person running out the tuckshop with a gun in hand, and then finds the cashier was shot upon entering the Sasol tuckshop is a corroborative witness. In the above described two examples, both witnesses can provide valuable information and may be able to identify the suspect. The evidence of the eyewitness would be given more weight during the trial, because the witness was present and saw the suspect shoot the victim. 4 The corroborative witness can provide strong evidence to suggest that the man running from the store committed the crime; however, additional information would be needed to support the assumption that the person seen running from the tuckshop committed the crime, for example, ballistic testing of the gun found on the suspect which matches the bullet found in the body of the cashier; or gunshot residue testing on the hand of the suspect which confirms that he had recently fired a weapon. It does not mean that the additional evidence would not also be useful to corroborate the evidence of the eyewitness. The difference is that, in the case of an eyewitness, the additional evidence is value that is added, while in the case of the corroborative witness, more evidence is required to support the conclusion of guilt beyond a reasonable doubt. Moreover, in addition to a witness being an eyewitness or a corroborative witness, the court will give additional weight to evidence that comes from persons who are unbiased independent witnesses, also known as third-party witnesses, who are characterised as such because they are in no way associated with the victim, suspect, or the crime. An independent witness can be an independent eyewitnesses or independent corroborative-witnesses of a crime and has nothing to lose or gain from the outcome of the case. 5 TAKE NOTE OF THE NUMBERING SYSTEM (1-5; pp. 4-17), BECAUSE THE NUMBERS REPRESENT THE MAIN POINTS TO EXPLAIN WHAT PDs ENTAIL 1. A PD is a verbal description of the physical features of an alleged perpetrator (a physical description). When the criminal investigator takes down a physical description, the items that are included in the physical description are: (i) Surrounding features (e.g. race, age and sex). (ii) The head (e.g. size and shape, nose, mouth, chin, hair, eyes, cheeks, teeth and ears). (iii) The rest of the body (e.g. neck, shoulders, arms, hands, chest, stomach, hips, legs and feet). (iv) Physical peculiarities (e.g. abnormalities, gait, voice, speech traits and language). Critical thinking activity: Write down a description of your best friend in words by using the items of a physical description listed above. Based on the description you were able to put together; do you think that someone will be able to identify your friend in a crowd of people? Was this an easy task? You know your friend very well, now imagine how difficult it would be to describe a stranger, or person you saw commit a crime? 6 It is a difficult task to describe someone in words, mostly because the general public do not know the descriptive words needed to describe physical features (e.g. the shape of eyes, the nose, lips etc.). 2. The difficulty to express in words what someone looks like, is ameliorated by the police through using supplementary techniques to assist the witness to ensure that descriptions are as accurate as possible and to enhance the criminalistic value of PDs: (i) Comparisons and corresponding descriptions – when the witness is asked to compare what is known at present with what he/she remembers. Critical thinking activity: An explanation of the technique will be provided in the BlackBoard session. Please listen to the lecture! (ii) Criminal photograph albums (Rogue’s Galleries) – photographs of previously convicted criminals are used as a point of departure when a description is documented with the purpose of pointing our similar facial features (Please listen to the lecture for further explanation!). (iii) Sketches by police artists are made based on the description provided. 7 The sketches are done in pencil so that the witness can provide input about how the physical features should be changed to better fit with the memory of the witness. A four-step process is usually followed: - Initially, the artist engages the witness in light conversation, putting the witness at ease to recall events without undue stress. - Secondly, the artist creates a basic sketch, depicting general shapes including the head, hair, ears and the cheeks. - Then, guided by the witness, features and shading are added. - Finally, refinements are made, giving the face a lifelike appearance and expression. The entire process is a slow one, often taking many hours, as the work is detailed and precise. (iv) Composite pictures of the face (IdentiKits) – these are manual or electronic toolkits consisting of graphic representations (e.g. photographs) of basic facial features that are interchangeable (e.g. facial forms, eye shapes, noses, eyebrows, lips, hairstyles etc.). Based on the description received the face of the perpetrator is compiled by overlaying the features one at a time (like puzzle pieces) until the witness is 8 satisfied that the composite picture looks like the person he/she is describing. 3. PDs are based on communication (questions are posed and answers are provided) between relevant parties. Information (not just to obtain a physical description) can be gathered from people during the process of questioning. Questioning in a criminal investigation is a conversation between an interviewer and interviewee during which questions are asked to obtain information about an alleged crime. Two techniques may be used during questioning. Note that the difference between the two techniques does not lie in the person with whom the technique is used, but rather in the cooperation that is given by the person. The two techniques that may be adopted during questioning are: (i) Interviewing – ANY PERSON who is ready, willing and qualified to provide information. (ii) Interrogation – ANY PERSON who is reluctant, unwilling or hostile to provide information. It should be noted that a commonly held belief in criminal investigation is that successful criminal investigators do not interrogate persons who they can rather interview through building rapport with interviewees. 9 Nevertheless, there are operational differences between interviews and interrogations, which are explained in the table below INTERVIEWS INTERROGATIONS TIME Take place as soon as possible after the incident. PLACE Because interviewees are willing to provide information, their needs are considered and met in terms of the place (and time) the interviews take place. Taking notes is important, however interviewees should feel that they have the full attention of the interviewer. Some note taking is recommended, but it is advised that detailed notes should be made directly after an interview. Although not essential during interviews, audio-visual recordings are the most reliable manner to document the details during interviews. Interviewees are allowed to explain their version of events in their own way. Interviewers would then follow up with questions to elaborate on certain aspects recounted by interviewees. Interviews are conducted in settings which are comfortable to the interviewee. Usually take place at a later stage deliberately to give the interrogator enough time to gather as much information as possible. Interrogators determine the place (and time) to their advantage. NOTE TAKING/ RECORDING STYLE OF QUESTIONS THE SETTING 10 Audio-visual recordings are recommended to have a permanent record of both disclosures by the interrogee and the actions of the police. Interrogators pose precise and incisive questions to the reluctant interrogee. Questions that would produce simple yes/no responses are avoided because these assist uncooperative persons by not having to offer explanations. Interrogations are conducted in settings which favour the interrogator. The room, furniture, lighting and seating arrangements are planned. Various strategies/approaches can be used during an interrogation, for example:  Single purpose interrogation – the aim is to convince interrogees that the only way out is to confess, because the investigator has convincing evidence of their guilt already. They are directly confronted with convincing and positive information.  Pessimism interrogation – the aim is to paint a grim picture of their future by using fear of the unknown and raising doubts about what awaits them.  Guilt feelings interrogation – the aim is to evoke guilt in the person by suggesting that family and friends are disappointed and shocked by their involvement and that a confession or cooperation will bring the person much needed redemption or relief by accepting responsibility and “doing the right thing”. 4. General information forms part of PDs. Usually general information is only available if the alleged perpetrator was arrested previously and the information was documented, or if the informant/witness knows the person well enough to supply such detailed information. Examples of general information is names, aliases, nicknames, addresses, nationality, personal history, identity and passport 11 numbers, style of clothing, jewellery, distinctive marks on the body, personal habits, as well as friends and acquaintances. 5. PDs are subjective and various factors can adversely affect their reliability. Eyewitness are often critical sources of information to determine what happened during a crime. Although playing a central role in criminal investigations and decision-making, eyewitness information has often been found to be unreliable, and constitutes a major contributing factor to wrongful convictions. It is estimated that up to 75% of false convictions are caused by witness error. False convictions are sometimes due to a witness’ deliberate lies about the crime. However, it should be noted that in the vast majority of cases witness error is unintentional, with no malice intended. When dealing with information retrieved from witnesses, one should therefore be aware that humans are fallible, regardless of their good intentions in wanting to assist with information in a criminal investigation. Factors that can adversely affect the reliability of witness information can broadly be divided into the following (please note the structuring of the factors under appropriate headings): 12 (i) Factors that relate to HUMAN ABILITY: (a) First, perceptivity (or individuals’ ability to observe with accuracy) may be influenced by:  Eyesight - short sightedness, far sightedness, and colour blindness can influence the detail with which witnesses are able to produce eyewitness information.  Surrounding circumstances - the time of day and the quality of light when a crime is witnessed, distance from which a crime incident is witnessed, and distractions like loud noise and a large crowd of people being present when a crime was witnessed can increase the difficulty of describing and identifying the perpetrator.  Exposure duration - the longer the witness is exposed to the perpetrator, the more accurate the identification.  Emotional condition - consider for example the impact of fear, shock and anxiety which typically accompany witnessing a crime. Research has confirmed that high stress levels drastically reduce the accuracy of eyewitness information. Individuals tend to recall information best under conditions of moderate stress/arousal. 13 The so-called weapon-focus effect is related to this, where the presence of a weapon draws the witnesses’ attention away from the perpetrator’s appearance to the weapon.  Previous experience – being a witness in a criminal investigation on more than one occasion may contribute to better descriptions because the witness knows what to expect.  Alcohol and/or drug intoxication can impair attention, perception, thought, memory and judgement.  Mental health – e.g. a person diagnosed with paranoid schizophrenia experiences hallucinations and delusions which blur the lines between what is real and may find it difficult to provide a reliable description of events. (b) Second, a person’s memory (ability to recall events) is also linked to human ability: What is important to consider is that human memory is not a transcript or video-like record. Recalling/remembering the details of an event is not a passive and static process during which an individual can access recorded and retained information in a vacuum which is unaffected by outside influences. 14 Human memory is an imprecise, interpretive reconstruction of events subject to contamination in both its initial encoding and subsequent retrieval. Accurate memory of an event decreases over time; the longer the time that passes between observing an event and trying to recall the details of the event, the greater the risk that details will be forgotten – this is called the “physical trace theory”. The impact of age should also be considered older persons typically experience a decline in their ability to recall events as well as modest reduction in their thinking skills, while children as are prone to being impacted by their powers of imagination. (ii) Factors that relate to HUMAN DISPOSITION:  Suggestion is the unintended effect of misinformation from external sources that lead to the creation of false memories in a witness through details picked up from other witnesses, newspapers, the criminal investigator or other sources. 15 Therefore, great care should be taken not to ask leading questions to a witness.  Association occurs when a witness with no malicious intent incorrectly/falsely links a person to a crime they witnessed (mistaken identity). During memory reconstruction, individuals often inadvertently fill in gaps with information gleaned from other memories; or general knowledge and assumptions - this inadvertent process of filling in the gaps is referred to as “unconscious transference.”  Prejudice and stereotyping are influenced by personal perceptions that individuals from a specific race/ethnicity or sex is predominantly responsible for the crime problem. Moreover, eyewitness identifications of individuals of races other than the witness are, on average, less accurate than identifications of individuals of the same race. Similarly, identifications of men by women, or women by men tend to be less accurate than identifications of men by men or women by women.  Unwillingness to co-operate – there are various reasons why persons would not want to cooperate and information received from such persons should be considered with great caution as they may be 16 intentionally deceitful or vague when providing information. Reasons for witnesses being uncooperative include being cautious not to incriminate themselves, wanting to protect perpetrators, and being afraid of reprisals/revenge should they assist with providing information. (iii) Identify a THIRD CATEGORY of factors that impact negatively on the usefulness/reliability of PDs that are overlooked in the above discussion? Please listen to the lecture! 17 IDENTIFICATION TECHNIQUES BASED ON PERSONAL DESCRIPTIONS 1. Informal identification It is also called incidental identification, field identification, spontaneous identification, or show-up identification and should preferably be followed by a formal identification technique depending on the circumstances. The technique works under ideal circumstances which requires that immediately after the commission of a crime, the witness/complainant/victim opens a charge and a physical description is obtained – the witness/complainant/victim is then accompanied by the police in the streets or places in the vicinity where the crime was committed where the alleged perpetrator may still potentially be present. The time factor in informal identification is of critical importance in the sense that it should take place shortly after the commission of the crime – the ideal is between ten and twenty minutes. A practical example of this identification technique: Two women aged 20 and 22 years entered the Criminal Record Centre at Ga-Rankuwa police station. They stated that they had been robbed of their cell phones, money and jewellery, when they were passing through the passage next to the police station, by two young men. They described the one perpetrator 18 as wearing jeans (blue), a white T-shirt and red cap. They were unable to describe the other perpetrator’s shirt colour, but stated that he carried a school bag on his back and that he was wearing black trousers. They were also able to point in the direction the two perpetrators fled from the scene. The police quickly accompanied the women in a patrol vehicle and whilst driving towards that direction, the women pointed at two men who matched the description. The men tried to flee, but were apprehended and arrested. Inside the school bag they found ten cell phones and jewellery, as well as a toy gun. Based on a physical description of witnesses, a suspect may also be returned to a crime scene for this type of identification. A practical example of this variation of incidental identification: A 21-year-old farm worker raped and killed a 56-year-old farm owner. He stole a .38 calibre firearm, money as well as her German manufactured vehicle in which he left the scene. However, the car soon ran out of diesel; the farm worker subsequently returned to the house to collect a container with diesel. At that time, the neighbours and other farm workers had already contacted the police, as they feared that the victim had been hijacked. Other farm workers described the suspect to police officials upon their arrival. The police also discovered that someone had tried to escape through the roof. Some of the police officials noticed a person running frantically into the mealie fields. They chased after him and arrested him about six kilometres away from the scene, having in his possession a .38 calibre revolver, a cell phone and keys - all belonging to the 19 victim. The police took him back to the crime scene, where he was positively identified by the farm workers. All other aspects of the investigation were executed, and the suspect eventually confessed to being the killer. 2. Photograph identification Photograph identification should not to be confused with the criminal photograph album discussed earlier – remind yourself of the purpose of the criminal photograph album. Photograph identification is desirable when the police have a solid suspicion who committed the crime, but the suspect is not in custody, or when a fair identification parade (see next section) cannot be conducted. The photographs of persons who have been convicted of crime before, may be used when photograph identification is used as an identification technique. The process that should be adhered to during photograph identification is as follows: - All photographs must be similar in shape, including the suspect’s photo. - The individuals depicted in the photographs should all have similar basic physical features (e.g. approximate age, race, sex, complexion, and body build). - Nothing in any of the photographs should draw the attention of the witness to the specific suspect. 20 - The number of photographs that must be displayed to the witness should be at least nine (eight non-suspects or “fillers” and one suspect). - If there is more than one witness, photographs should not be shown to them while they are in each other’s presence. - The police official should rearrange the order of photographs after each witness has viewed them. - When the witness makes an identification of a suspect, they should mark the photograph. - At no time during the viewing of photographs should the official make any suggestion, through speech or action, that a photograph of the suspect is necessarily among the photographs the witness will be viewing. - All the photographs should be put in an envelope and sealed, and retained for possible court examination. - If an identification is made, the criminal investigator has a single known suspect to pursue. 3. Identification parades Identification parades are commonly used when the suspect is in custody and there were witnesses to the crime. (i) Definition An identification parade or live line-up, is a direct personal identification technique during which a number of persons are shown to a witness/victim of a crime at the same time and is given the opportunity to identify the person he/she saw and remembers committing the crime. 21 In other words, a specific suspect is placed among a number of other people, or so-called “fillers”, who were definitely not involved in the commission of the crime. (ii) Main objectives: The main objectives of an identification parade are:  To test justly and accurately the ability of the witness to recognise the alleged perpetrator.  To eliminate the element of suggestion, which is also the main disadvantage of an identification parade. Therefore, the majority of the checks and balances built into the process is aimed at eliminating the element of suggestion. (iii) Most pertinent principle: The most important principle of an identification parade is fairness towards the suspect, which can only be guaranteed if the standard procedures are followed. (iv) Standard procedures: Identification parades can potentially play a major role during court proceedings by linking perpetrators to the crime that was committed. 22 In contact crimes, such as murder, armed robbery and rape, the courts rely heavily on the positive identification of perpetrators by victims and/or witnesses. It is therefore important that the correct procedures should be followed when conducting an identification parade. When an identification parade is conducted according to rigorous standard operating procedures, a positive identification at an identification parade will be admissible evidence in court. The standard operating procedures are as follows:  An identification parade should be conducted as soon as possible – why? Please listen to the lecture!  The date when the accused is informed of the intended identification parade, and the date the parade is scheduled, should be communicated and recorded.  The criminal investigator who is in charge of the investigation is not allowed to be present; an impartial police official who is not involved with the investigation at all should take charge of an identification parade and assumes the role of supervisor.  There should be at least eight individuals in addition to the suspect in a parade who have a similar general physical appearance (e.g. height, build, age and similar clothes). 23  The purpose of the proceedings must be explained to suspects beforehand and they should be informed about the charges against them.  The suspect may choose their position in the line-up and also change their position if there is more than one witness – why? Please listen to the lecture!  Accurate notes compiled by the supervisor must be made of everything that occurs at the parade on a standardised SAPS form (the SAP 329); everything that occurs during the parade should be recorded on this form, which must be made available to the defence.  Suspects should be asked if they are satisfied with the composition of the parade, and their answers should be recorded.  Do not parade individuals who are personally known to the witness; witnesses and all participants in the parade must be strangers to each other.  The supervisor should be present at all times.  It is a closed process, which means that only specific individuals (other than the witness and the individuals in the line-up) are allowed to be present, namely: - The suspect’s legal representative, who is present as an observer. The legal representative is not permitted to converse with any witnesses. 24 It is advisable for supervisors to ask legal representatives if they are satisfied with the parade, and to record their responses, so as to minimise any allegations of irregularities at a later stage. Should the legal representative observe any irregularities in the procedure employed, or wish to dispute any facts concerning the identification parade, the supervisor may be cross-examined about the proceedings at any subsequent criminal trial. - An interpreter is allowed at the proceedings, if necessary. - A police photographer or video camera operator, if the supervisor considers it advisable, especially in the event of serious cases or large parades, may be present. Photographs or audio-visual recordings of identification parades may later help to confirm or disprove allegations of misconduct in court. - Witnesses who are minors (children under the age of 18 years) may be accompanied by a parent, legal guardian or an intermediary (mostly a social worker who acts in the best interest of the child). - Two other impartial police officials are not forbidden, and may, especially in the event of large parades, be useful. 25  If more than one witness takes part in the identification parade, they should be separated in different venues, or at least be kept under supervision. Importantly, office numbers and names of officials who guarded over witnesses should be recorded. Similarly, officials who escorted the witness to the identification parade should be recorded.  It should be ensured that the witnesses do not see the suspect under arrest before the parade.  Reasonable requests from suspects should be accommodated.  Suspects should be informed that their refusal to take part in a parade can at a possible later criminal trial be presented as evidence against them, and that the court might draw an adverse inference from such refusal or non-compliance.  Contrary to popular perception, one-way vision glass windows are not commonly used in South Africa for identification parades, because the facilities are not always available or in close proximity where an identification parade is conducted. Standard operating procedures dictate that if such a facility is available, every person in the line-up must be provided with a board to hang around their necks, containing a distinctive number of their position in the line-up. The witness must identify the relevant person by mentioning the number on the board around the neck 26 of that person. This manner of identification must be utilised even if such a facility is not available, and the identification of the person by touching or pointing at him or her will be traumatic to the witness, especially where the witness is a victim of an offence involving violence. A photograph must be taken of the actual act of identification. Before the witness was required to point out the suspect, if in the line-up, by touching his/her shoulder. The purpose of the rule requiring physical contact was to eliminate any possibility of the witness being misunderstood. This requirement was however, discontinued. Should facilities which offer a one-way glass window not be available, the witness receives very specific instructions which amount to the following: “Walk up and down and inspect every person thoroughly. Take your time. If the person whom you saw commit the crime is present, please identify him/her by placing your hand on their shoulder or identify the number around the individual’s neck”. In other words, should it appear to the supervisor that the circumstances of the case are of such a nature that it cannot be reasonably expected of the witness to physically touch the suspect, or where the witness indicates reluctance to do so, the supervisor must use other acceptable methods by means of which the witness should point out the suspect. In a court ruling, R v Nara Sammy 1956 (4) SA 629 (T) 631H-632A, the judge ruled that it is important that the supervisor 27 should add the important words “if such person is present”.  Witnesses should be prepared for the process. In particular, witnesses should be advised about the following: - They are not obliged to identify anyone in the line-up, and that they should take care not to identify the person who most resembles the suspect. - The suspect may not even be in the line-up. - They should not confer with any other witnesses who will be viewing the identification parade.  The supervisor should record on the SAP 329 the time taken by the witness to point out the person in the lineup. The reaction of the witness during the pointing out of the person should be recorded as well as the comments/reactions of the person being pointed out by the witness.  The supervisor’s service number, rank, and name should be recorded on the SAP 329.  In addition to the SAP 329, the supervisor should submit a signed report containing their service number, rank and name, which states that: - the parade was conducted by them; - the details which have been completed on the SAP 329 are correct; and 28 - the SAP 329 is a fair and accurate description of the procedures which took place. 29