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Burden of Proof

Jeanne Boylan's Facial Identifications Profile the Portraits of Guilt

Aired September 4, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF, in the eye of the beholder: Some of the most horrific crime mysteries of our time have been solved with the aid of a world-renowned forensic artist. Jeanne Boylan's facial identifications profile the portraits of guilt.

ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF.

When bystanders witness a crime in progress or a suspicious character near the scene of a crime, their version of events becomes a crucial element in the evidence gathered by police. If a suspect has fled the scene, witness identification becomes key for solving the case.

GRETA VAN SUSTEREN, CO-HOST: And that's where facial identification specialists come in. Their artistic rendering of a witness's description helps the police and the public hunt down our nation's most dangerous criminals.

COSSACK: And joining us today from San Diego, California is Jeanne Boylan, a well-known sketch artist in the field of forensic investigations and author of the book "Portraits of Guilt." In San Francisco, we're joined by Mark Klaas, the father of Polly Klaas.

VAN SUSTEREN: And in Winston-Salem, North Carolina, we're joined by rape victim Jennifer Thompson.

And here in Washington, Todd Rhinestein (ph), former federal prosecutor Pam Stuart, and Amy Ferrar (ph). And in our back row, Terra Rosenblum (ph) and Annie Lee (ph).

Jeanne, first to you: How do you get into the business of being a sketch artist helping investigations?

JEANNE BOYLAN, AUTHOR, "PORTRAITS OF GUILT": I don't know that there's a formula for it. I got into it very inadvertently, and having been a crime victim myself and had that experience of sitting across the table from investigators and feeling as if I wasn't being heard.

COSSACK: Jeanne, you have a method of doing what you do. Why is it different than what traditional sketch artists do?

BOYLAN: I really rely on the integrity of the memory. It's very important that I don't implant any information. So unlike a typical police artist, I'm not showing someone a selection of visual aids and saying, was it this chin, pick out a set of eyes, pick out a nose, et cetera. I'm actually working in depth -- in terms of how memories are stored under a traumatic condition, how why people remember and how to retrieve that information without distorting it.

VAN SUSTEREN: Jeanne, the book you've written, "Portraits of Guilt," it is dedicated in the beginning to Polly. Who is Polly?

BOYLAN: Polly Klaas is just very dear to my heart. Polly was taken from a slumber party in October 1 of 1993. And through that case, I got to know her father, Mark Klaas, very well.

VAN SUSTEREN: And of course Mark is joining us, also from San Francisco.

Mark, what do you make of this -- the sketch business in terms of helping investigations? And did it help in your case?

MARK KLAAS, POLLY KLAAS' FATHER: Well, I would certainly -- I think it does a disservice to say what Jeanne does is sketching. She really does do portraits of these individuals, and they're incredible likenesses that do draw a lot of attention to the portraits themselves and have, in fact, solved cases.

When you look at some of the individuals, the Unabomber case is a very good one. It's uncanny how close she nailed David -- I'm sorry, Ted Kaczynski. Certainly in Polly's situation, she did an incredible likeness of Richard Allen Davis. And I think it brings a lot of credibility back to a very iffy kind of a technique.

COSSACK: Jeanne, you have said that your method is 98 percent psychology, 2 percent art, if you will. What do you mean by that?

BOYLAN: Well, it really is dependent upon understanding the complexity of memory, that memory is not static, it's very, very malleable, can be changed through suggestion, through how someone's interviewed. Historically, eyewitnesses have thought to be very unreliable, and I'm finding that's not the case at all because I can go into a case, whether it be in a case like Polly's where I'm two weeks after an original drawing has been done, or Unabomber, seven and a half years after original drawing has been done, and still retrieve that original information, that image in an eyewitness' memory with great precision.

So it's not the eyewitnesses that are necessarily unreliable, it's the method of questioning that needs a lot of improvement.

VAN SUSTEREN: Jennifer, you were a rape victim and made an identification. And I'm going to ask you the story in a second, but I've also been robbed myself and looked at a group of photographs and not been able to make an identification. What happened in your case with the identification? JENNIFER THOMPSON, RAPE VICTIM: In my case, when I -- after I was raped and I went to the police station and gave my description, I did a composite drawing. And my actual composite drawing was very almost scary, resembled my attacker. But what happened following that is where the complication came in involving my identification because my memory of my attacker was layered on top of my composite drawing, which was then brought into the police station to go through a photo lineup of an array of men. And that's where it actually got tricky for me because I was looking at pictures of men from maybe two or three years prior to that when their pictures were taken, and I chose a face which looked like my composite drawing which looked like my attacker.

VAN SUSTEREN: And based on that drawing as well, an arrest and a conviction resulted in your case, did it not?

THOMPSON: It did.

VAN SUSTEREN: And then recently there was a development in your case. Why don't you tell us what happened recently?

THOMPSON: Well, in 1995, DNA had become available due to the O.J. Simpson case. And the man who I had eyewitnessed and who had served 11 years in prison had been proclaiming his innocence and had asked for a DNA test to be run. And we ran it in my hopes that, you know, it would be the end and we would finally just put it to sleep. But, actually, what happened was we found out that he had been innocent all along and the man who had been serving time in the same prison as himself had actually been my rapist.

COSSACK: Jeanne, what was wrong with what happened with Jeanne...

VAN SUSTEREN: Jennifer.

COSSACK: ... Jennifer, rather, and what would you have done differently?

Thanks, Greta.

What would you have done differently, Jeanne, in terms of what the procedures were with her?

BOYLAN: Well, memory is -- because it's malleable, it can be contaminated with exposure to as few as six photographs -- six to 12 photographs. Jennifer was shown many more than that. And when you're dealing with a trauma victim, as in this circumstance it certainly would apply, the last thing the mind wants to do is to revisit the image that created the trauma. So with each subsequent viewing of any additional post-event information, you run the risk of contaminating that recall and of completely distorting, sometimes diffusing that image in someone's memory to the point where they're unable to identify or they misidentify.

VAN SUSTEREN: Jeanne, I'll tell you that when I was robbed, it was in a garage so it was actually quite well lit and I knew -- and I was a criminal defense attorney at the time and I wanted to get a really good look. And I got a really good look at my assailant who robbed me. And then he walked 10 feet and I called to him and I got another good look at him again. But I'll tell you, when they showed me that photo array, I couldn't -- and it turned out that the person who had committed the robbery was in the array. I couldn't identify him. Could you have helped me?

BOYLAN: Well, probably. It would depend on what you'd been through prior to that, if you'd been exposed to any photographs. There's a very gentle, simple way of bringing that information up in recall without overlaying it with new information. That's the most important thing.

Now, sometimes when there's a particular suspect in mind and they bring you a photo array, there's sort of no other way to go around that, as long as they're not showing you a great number of photographs. But, again, that exposure, six to 12 photographs, you can begin to distort that recall.

Most eyewitnesses to crime are shown literally hundreds of photographs or facial components in the preparation of composite. And the way that the memory works is not to put information in your recall. In other words, you look at that attacker in the garage, you're not putting his eyes in your eye bank and the nose in the nose bank, your mind brings that image up holistically. So when you're asked, for instance, with a sketch artist to sit down and say, pick the eyes out of this section, the nose out of this section, you're actually pulling those elements out of context and further distorting it. Then you end up with the creation of a composite drawing which, because the mind is not wanting to revisit that image, can become the image that you then see.

VAN SUSTEREN: All right.

BOYLAN: Many times when I get involved in a case late, I end up getting almost a description of the drawing as opposed to the description of the actual person who committed the offense.

VAN SUSTEREN: All right, we're going to take a break. When we come back, we're going to talk to a prosecutor who has worked with photographs. And we're also going to bring in Mark Klaas to discuss more about it. Stay with us.

(BEGIN LEGAL BRIEF)

The FBI was the first agency to develop a standard for applying a technique of composite sketching that could be used across the country.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: Good news for our Internet-savvy viewers, you can now watch BURDEN OF PROOF live on the World Wide Web, just log on to cnn.com/burden. We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site any time via video on demand. You can also interact with our show and even join our chat room.

VAN SUSTEREN: The use of forensic artists to find suspects has been a useful prosecutorial tool in some recent high-profile cases. The artists bring talent to the table, but they are working on the reliability of eyewitness recollection.

Pam, as a former prosecutor, how does -- I use the word "sketch artist" and Mark says that maybe doesn't do service, portrait is probably better, and I will concede that -- but how does a prosecutor work with a sketch artist's material?

PAM STUART, FORMER FEDERAL PROSECUTOR: Well, really it is used as a last resort. It's used in the cases like the Unabomber, or in the case of Polly Klaas, where nothing else has worked to surface a suspect.

VAN SUSTEREN: But what Jeanne has said that it is better not to have the person sort of tainted. Like when I looked at the photo array, apparently from what Jeanne says, in my robbery, that in many ways sort of tarnished, or made it more difficult, for a sketch artist to then work with them. Why not do that first?

STUART: The reason is that, frankly, in the experience that I had, it was more likely than not to end up as a defense exhibit if the -- and we didn't have Jeanne on staff. So we worked with the police artists who would put composites together, and often, there was some feature of the composite that didn't match the person who was ultimately arrested. There may have been a lot of other evidence that led to that person. But again, it can be used as a defense weapon against the prosecutor.

So it's much better to have a clean identification off a photo array of six photos, if the police have information suggesting who it might be, and they put that person's picture in, and the victim identifies them off that, or identifies them at a lineup, or even better to find whoever it is in the neighborhood shortly after the event, and bring them to be viewed by the victim of crime. Those are better.

COSSACK: Mark, tell us what had happened prior to Jeanne's involvement with your case, in terms of the investigation? There wasn't much going on, and then Jeanne came along and really helped with the case. Isn't that how it worked?

KLAAS: That is exactly right, Roger. What happened initially is Polly was kidnapped, the police took the girls that were with Polly into the police department, and had a traditional sketch artist go through the various sets of identifying factors to come up with a sketch that actually looked, in my mind, looked like one of the detectives that was working the case initially.

They then put that out and people were looking for somebody that didn't look anything like Richard Allen Davis, that may or may not have been wearing a yellow bandanna. And really the investigation had stalled.

Jeanne was one of the -- every so often, in Polly's case, something would happen that would jump start it again, and certainly that was what happened in Jeanne's case.

But let me tell you, when I first saw Jeanne Boylan being escorted in by the FBI and some TV producers, I just went absolutely nuts. Because it seemed to me that they were taking this whole thing Hollywood. I had no idea of the incredible gifts that this woman had. I was just looking at beautiful blond and thought: My God, what are they doing to my daughter's case?

But what she ultimately did, not only was put out a good portrait of the individual that had kidnapped Polly, but she resurrected the little girls that were with Polly that night, because they had been called liars for two weeks. Nobody was believing those children that was officially involved in the investigation until Jeanne came along, put that picture together, and got it out onto the airwaves.

VAN SUSTEREN: Mark, is then simply boiled down to the issue of quality? I mean, if Jeanne had been there earlier instead of a police artist, is that really what we are talking about? that the first police artist just wasn't as -- wasn't as good?

KLAAS: No, I don't think that. I think Jeanne would agree that it's an issue of technique, as opposed to the quality of the artist. The traditional technique is really to take the very identifying factors and just keep running them by you until something might or might not click, and you end up with some kind of composite that may or may not look like the individual.

What Jeanne does is she minds your mind, is what she does, and draws the information out, as she says, very gently over a long period of time until she comes up with what is her final result, which is uncannily accurate, almost 100 percent of the time.

COSSACK: Jennifer, you obviously made your erroneous identification in good faith, and with what you thought was -- and you identified who you thought was the person. From that kind of experience, what can you tell people now about eyewitness identification? is it, per se, unreliable?

THOMPSON: I think it's very unreliable. And I only say that because, as human beings, we are just so imperfect and so fallible and we make mistakes so often.

And I can remember early on in the investigation, and I had the most wonderful detectives and police officers working with me, but the one thing I kept hearing was, you know, you need to choose the eyebrow that most closely resembles, or the nose that most closely resembles, or the hair line that most closely resemble. And, for me, closely resembles or, you know, what looks the most like is just not good enough when we are talking about incarcerating people for long periods of time, or the death penalty. I mean, closely resembling or you know... VAN SUSTEREN: What about -- I tell you, I agree with you as well, Jennifer, that if that's it alone that is problematic for me. But typically, these cases, you know, they will have something else, like have opportunity, or association, or fiber, or DNA, or something else. But that the sketch artist might be sort of the clue that leads to the person to get the additional clues?

THOMPSON: But when we are doing a sketch and we are picking out something that most closely resembles, and then what happens is is that sketch goes into the newspaper, and then people are calling in, and say: Gosh, that sketch looks like John Smith over here, and then John Smith becomes a suspect, and then John Smith's photo is in a photo array or he is in a physical lineup.

COSSACK: It is what we talk about, the self-fulfilling prophecy.

THOMPSON: Exactly.

VAN SUSTEREN: Which goes back to -- I think Jennifer and I agree is that that alone is not enough for me. It needs something more, you know, but it's a good start.

THOMPSON: Well, it's a start. I don't even know if it's a good start. It's a start. But it's just so tricky and the more I read and the more I understand, the more I become involved in this type of stories, the more mistakes that are made, and...

COSSACK: Jennifer, let me just cut you off for a second because we have to take a break.

Up next, why would federal investigators resist the work of Jeanne Boylan? Find out about that when we come back. Stay with us.

(BEGIN Q&A)

Q: How many years after a witness glimpsed Ted Kaczynski was Jeanne Boylan Called in to interview and sketch a drawing of the suspect?

A: 7 1/2 years.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: The work of forensic artists often aids investigators in their search for suspect, but the FBI and local police authorities aren't always receptive to this type of investigative aid.

Jeanne, why aren't the FBI more receptive to you and local police agencies? why do they somewhat resist what you try and do?

Well, unfortunately, law enforcement, particularly in this country, is very steeped in tradition, and change has not been an easy thing to create. I come along and I am talking about the intangibles of emotion and memory and trauma, perception. These aren't things that are in sort of an ABCD format that can be put quickly on a computer screen. So it sort of goes against the natural progression of things.

Police want things done very quickly. They want them in check mark boxes, and they want to be able to communicate between law enforcement agencies by check marks on computer formats.

And unfortunately, when you are dealing with emotion and memory, all these intangibles, it is just not the way that the mind works. It really has a lot to do with the human heart and the human spirit, and a tremendous amount of psychology.

COSSACK: Mark, with Richard Allen Davis, who is the brutal murderer of your child, how important was the drawing, in terms of the catalyst for getting -- for moving the investigation forward? I mean, how does it fit in sort of the continuum of time?

KLAAS: Well, like I say, there were things that really brought Polly's case back to the forefront time after time. And what Jeanne did is she took a generic sketch of an individual, and turned it into a portrait that had very definite features, and absolutely did look like somebody. And that caught people's attention and that caught people's interest, and that put Polly's case back out there, which allowed all of these images to be generated time and time again for a period of really months, until finally everything pulled together and clicked with one woman up in Santa Rosa, California.

VAN SUSTEREN: What do you make of Jennifer Thompson's experience, though, where she was certain about an identification, and unfortunately later proven wrong by DNA, that sort of difficult situation?

KLAAS: Of course it is. But, you know, I don't think you can discount eyewitness identification. It all depends on how the witnesses are treated, quite frankly. Everybody that Jeanne talks to is an eyewitness or Jeanne wouldn't be talking to them.

I think if you are going to start putting this jigsaw puzzle of facial features together and run it in front of somebody, it is obviously going to confuse you. I don't want to step too far into this because I am certainly not an expert on it, but I understand where Jeanne is coming from. I understand a little bit of Jeanne's technique after having known her for so many years and had so many conversations with her, and I think she has got a very valid approach that should be looked at much more closely by agencies throughout this country.

COSSACK: Jeanne, when you do your work? do you ever have to testify in the trial?

BOYLAN: Often I do, uh-huh.

COSSACK: And when you are cross-examined, what is the line of cross-examination? do they suggest to you that you, in fact, are the person that suggests what the culprit -- eventual culprit looks like? that you are the one that brings out the features? and you are the one that makes up what the eventual portrait looks like?

BOYLAN: No, usually I'm brought in by the prosecution to show how suggestion free this process is, and that we're not contaminating or contorting the witness recall by showing them anything, that it's very pure. And typically, the defense will stand up and simply say no questions and let me go.

VAN SUSTEREN: Pam, one of the biggest problems of course, anyone who witnesses is a victim of a crime or witness one is the whole issue of the trauma, and being able to -- especially in cross-racial identifications. I have a real problem if that's the only piece of evidence linking somebody to a crime, not if it is corroborated with other, but the only. Do you feel the same way.

STUART: Not necessarily, Greta. When I used to interviewed victims, I tried to got a sense of whether during the event they were mostly focused on the gun or whether the lighting conditions were good, and they had a good opportunity to observe. And I tried to -- if that was the case, certainly bring it out, and if you were on the other side you would, of course, try and make my victim look like she was totally traumatized and had so opportunity to...

VAN SUSTEREN: But a good prosecutor and a good investigator will look for that corroborative piece of evidence to corroborate the identification...

STUART: Absolutely.

VAN SUSTEREN: ... to avoid the problem of a bad conviction.

But anyway, that's all the time we have for today. Thanks to our guests and thank you very much for watching.

COSSACK: Join us again next time for another edition of BURDEN OF PROOF. We'll see you then.

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