Three California Wrongful Conviction Bills Advance

The California Assembly Public Safety Committee cleared three bills yesterday targeted at reducing wrongful convictions, which we reported on earlier in the process. One is aimed at curbing false confessions by way of mandatory recording of confessions, the second requires corroborating evidence for jailhouse snitches, and the last is an eyewitness ID bill that would required the California attorney general and others to devise a set of guidelines for conducting lineups.

Governor Schwarzenegger vetoed similar bills last year, but the bills have reportedly been modified this session to accommodate Arnold's concerns. Hopefully we'll see a better result this year, and the Governor will show his commitment to reducing wrongful convictions in California.

Here's the text of the bill in PDF.

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Federal Court Gets ID Science Terribly Wrong, Denies Expert Testimony

In one of the worst eyewitness ID decisions I've read, the US District Court for the Eastern District of Virginia denied expert testimony in US v. White earlier this month, and in the process revealed a substantially flawed comprehension of eyewitness research. US v. White, Slip Copy, 2007 WL 1768718 (E.D.Va. June 15, 2007).

The case involves a police officer as a witness, and despite a wealth of research demonstrating that cops are no better at remembering faces than anyone else -- even when specifically "trained" to do so -- the court relied substantially on that fact in distinguishing this case from other cases in which expert testimony on eyewitness issues had been admitted previously:

First, unlike Lester and other cases admitting expert testimony on eyewitness identification, the eyewitness in the instant case is a trained police officer. Officer Catterton served as a military police officer for the United States Army for six years. He has been trained to be constantly observant of his surroundings, especially the people he encounters on the job. He has been specifically trained to observe and remember the faces he comes across so that they may be later identified. This is in sharp contrast to the participants in Dr. Cutler's cited studies, the majority of whom were college students.

In fact, the specific question of cops vs. college students as eyewitnesses has been studies, and all the evidence shows that trained police are no better at remembering perpetrator identities than random college students. See, for example, a 1998 study by Christianson & Karlsson: Police personnel as witnesses to a violent crime, 3 L. & Crim. Psychol. 59 (1998) (cops are no better at identifying perpetrators than civilian college students). And yet judges continue to rely on this false notion in rendering critical decisions, and in turn juries end up relying on the same false notion in their deliberations, because actual experts are prohibited from testifying to the actual scientific findings that clearly clash with the widely held common sense view.

The police-are-better-witnesses misconception was only the first of the court's errors in rendering this decision.

Confidence and Accuracy

The court also misinterpreted the research on the relationship between the confidence of an eyewitness, and that witness's accuracy. The court characterized the research as showing that "an extremely confident eyewitness is more likely to be accurate than a less confident eyewitness, but only by a modest amount." In fact, the research shows that there is a modest correlation between confidence and accuracy only under very narrow circumstances, more resembling a vacuum than the real world, which rarely occur in actual practice -- namely, if the confidence of a witness is recorded immediately following the identification procedure, and only when no other factors are present to corrupt the witness's perception, such as routine suggestive police practices. In most real-world contexts, there is no correlation between confidence and accuracy, and in some cases even a negative correlation has been observed.

This case was no vacuum. By the time the officer made the identification in this case, he had already been exposed to the strong suggestion of Mr. White's guilt -- he was told that Mr. White had been arrested previously on a similar charge, was suspected of the current charge, and on those grounds the officer requested that his arrest photo be sent over. By the time the officer-witness encountered Mr. White in person, there was little doubt that he would make an identification, regardless of whether or not Mr. White was the actual culprit. There is little question that expert testimony on the lack of correlation between confidence and accuracy would have helped dispel a common misconception in the minds of jurors, and thus enhancing the accuracy of their deliberations.

Cross-Racial IDs, Mugshot Exposure, and Show-Ups

The court went on to deny expert testimony on the cross-race impairment, namely that members of one race are more likely to mis-identify members of another race, despite the fact that the phenomenon is well-documented in the scientific literature and has been shown to be misunderstood by juries.

The court made similar errors with respect to the mugshot commitment effect, and the suggestivity of show-up procedures.

As the exonerations continue to show, juries are going to keep getting it wrong until judges allow science into the courtroom to undo the widely held errors of common sense on the reliability of eyewitness evidence. In the meantime, at least there's Tennessee.

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Cross-Species Lineups and "Forensic Facial ID Experts"

Australia's high court yesterday denied the final appeal of a man charged with murder and attempted kidnapping in the Australian outback, where one piece of government evidence was the identification of the accused's dog from a lineup procedure that the defense alleges was unduly suggestive. Given the serious problems with mere cross-racial IDs, it's tough to imagine that even a carefully crafted "dog lineup" could have the slightest hope of resulting in a reliable identification. That the Australian court gave this evidence its stamp of reliability and allowed it in front of a jury is inexplicable.

And the government in this case wasn't satisfied with a cross-species ID. In addition, they managed to introduce the testimony of a "forensic facial ID expert" -- not to be confused with an actual scientist -- who apparently viewed some video footage from a truck stop and testified, bolstered by the court-sanctioned semblance of "expertise," that the man in the video was "definitely" the defendant. I'd like to see the validation studies and error rates on that particular trick.

Also central to the government's case was an identification of the defendant by the woman who witnessed her husband's murder, but who only reported the defendant to the police after seeing his photo on an internet news site. The suggestive and corrupting effect of that sort of exposure prior to an identification procedure is also well documented.

It appears as though there may have been other strong evidence in this case, but the existence of corroborating evidence should not serve as justification to throw basic standards of reliability out the window. The reliability and admissibility of any piece of evidence should be assessed on its own strength. There is nothing in the rules of evidence to suggest that a purported DNA match should serve to diminish the admissibility requirements for all other evidence in a case, making way for the evidentiary free-for-all that this case appears to have been.

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How ID Reform Bills Became Laws This Year

A Public Defender blog has another great post up tonight -- this one is about how a Connecticut EyeID reform bill recently died in Committee. The post also asks us for our thoughts on the Bill, so here they are.

The Connecticut Bill looks great. On a quick read, all of the provisions look to be supported by solid science. Many of those same procedures are already being used by police departments around the country to good effect. Police are happy with the procedures, they feel they are getting more reliable IDs, and the cases hold up better in court.

That said, we closely followed ID legislation from around United States this session, and one pretty hard and fast rule developed: Though virtually all bills started out looking like Connecticut's -- with a host of specific best practice requirements -- the key to passage seemed to be pulling back from the specific and compromising on legislation that mandates best practices generally. These new laws then established some sort of committee (with law enforcment members and others) to draft best practice requirements. (I'm thinking about West Virginia and Maryland here). These bills also sometimes included a few more specific, non-controversial requirements, generally instructions to witnesses and written recording requirements.

The "generally-requiring-best-practices-but-leaving-the-specifics-to-commitee" approach is not necessarily a bad development. Police generally seem strongly opposed to a specific list of requirements, but not opposed in general to reform and to good science. A best practices approach allows some time for adjustment, and also allows police to "buy-in" to the reforms. Of course, if police try to delay or defeat the drafting of best practices after these sorts of bills pass, then more specific legislation can always be passed later. But the jurisdictions that have adopted a best-practices-by-Committee approach (for example, Wisconsin) have not experienced those problems, at least not to my knowledge. The more common reaction of police who consider the reforms in good faith is eventual strong support.

So in Connecticut, and other jurisdictions where reform failed this year, it may be worth thinking about a more general approach to reform, or at least being ready to agree on that as a compromise measure the next time around.

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New EyeID Resource at UT

The University of Texas law school just launched the Actual Innocence Awareness Database, with a section devoted to "resources which address wrongful convictions resulting primarily from inaccurate, mistaken or perjured eyewitness identification." Looks like it has potential to be a great resource.

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The Most "Niche Blog" Yet Named

The results are in, and the people have spoken. Thanks to Jamie Spencer over at Austin Criminal Defense Lawyer, we have earned the distinct honor of being named The Most "Niche Blog" Yet Named.

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Questions for Cops

The Niemen Foundation for Journalism at Harvard has a new entry up on its press watchdog blog, setting out a list of questions that the press should be asking local law enforcement and prosecutor organizations relating to eyewitness procedures.

The list comes courtesy of eyewitness ID reform institution Gary Wells:

Q. Does your agency have written policies and procedures on live and photo lineups?

Q. What are those policies and procedures? Can we get a copy?

Q. Do your policies and procedures follow the recommendations that have been made by the U.S. Department of Justice and by eyewitness scientists?

Q. How many fillers (non-suspects) are used in your lineups?

Q. What are the procedures used for selecting the fillers to be used in your lineups?

Q. What instructions are given to witnesses prior to viewing a lineup?

Q. Do you use an independent lineup administrator (the double-blind lineup procedure) or do you permit the lineup to be conducted by someone who knows which persons are fillers and which is the suspect?

Q. Do you secure a statement of certainty from the eyewitness at the time of the identification?

According to Dr. Wells, only about 15% of the 14,000 independent law enforcement agencies in the United States have made substantial changes to their lineup procedures to bring them in line with the science and best practices established. Making the good list are the following:

New Jersey (the entire state)

Boston and many surrounding areas

Minneapolis and many surrounding areas

North Carolina (nearly all major police departments)

Many of the departments in Wisconsin

Virginia Beach, VA

Santa Clara County, CA

Dr. Wells also observes that police tend to be more receptive to these reforms than prosecutors, because they have first-hand knowledge of the "vagaries" of eyewitness identification, through their common experience of a witness picking a "filler" (non-suspect) from a lineup, which serves as irrefutable evidence that eyewitness memory is fallible.

Prosecutors, on the other hand, often only receive information of "positive" IDs, and thus are more likely to have a distorted perspective on the reliability of eyewitness evidence generally. Which is why we need to continue drawing attention to those places where lineup reforms have proven successful, to show prosecutors and law enforcement agencies that the reforms actually work, make evidence collection more reliable, and ultimately make it more likely that the right people are put away.

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(Ex-)Duke Lacrosse Prosecutor Faces Trial for Misconduct

In the words of one of the defense attorneys on the Duke rape case, Nifong "created a conflict between his professional duties and the search for truth, and his personal vested interest in getting elected." "In his zeal to make national headlines and win a hotly contested primary, the DA Nifong intentionally ignored other evidence which was inconsistent with rape at the expense of [Seligmann] and all other Duke lacrosse players."

Now he faces trial for the same misconduct alleged throughout defense motions to have him removed, before the charges were dropped a couple of months back.

At the center of the controversy and the defense challenge to the evidence was the police lineup consisting of 46 Duke lacrosse players, all suspects in the case, which violates the most basic rules of lineup construction for a collection of reasons and offers little hope for an accurate ID. According to defense attorneys, Mike Nifong was behind the lineup as well. In their words, "He ignored the actual facts and improperly injected himself in the photographic lineup proceedings, which violates police policy."

Nifong is now heading to trial on charges of withholding evidence, lying to the court and bar investigators, and making misleading statements to the media about defendants in an active case.

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New Dallas DA Comes in Swinging -- At Bad ID Procedures

As reported over at Grits for Breakfast and at the New York Times, the new Dallas District Attorney -- a career defense attorney until his election to DA in November -- has some new ideas about prosecuting crime. This shouldn't seem novel, but in Craig Watkins' own words, "I lock them up if they're guilty." But against the backdrop of 13 DNA exonerations in the last six years under the old leadership in Dallas County alone, a focus on prosecuting the guilty comes as a welcome change.

Among the changes Mr. Watkins has already brought is a dramatic reform to police lineup procedures, namely the use of double-blind procedures, where the person administering the lineup is unaware of the identity of the suspect. Studies like the Hennepin County Blind-Sequential Pilot Project (PDF) have generated promising results, suggesting that the use of blind procedures can play a key role in reducing the number of innocent people selected from police lineups.

In other fronts in Mr. Watkins' attack on what he terms the "conviction-at-all-costs" mentality of his predecessors, the new DA has put an end to the practice of destroying files in death penalty cases following convictions, and has partnered with the Innocence Project of Texas to review 400 new cases for possible wrongful convictions. He is also taking steps to educate prisoners, and provide drug rehab in custody.

To his critics -- who Watkins says "are just waiting for me to make a mistake" -- he says: "It doesn't make any difference. Let them be on the wrong side of history."

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"Sometimes I wonder if death ain't better"

Roger Dean Gillispie has been in prison for 16 years for three rapes he swears he didn't commit. He has maintained his innocence from the outset, and the Ohio Innocence Project has been working on his case since 2003. Mr. Gillispie is currently awaiting a decision from the parole board, expected early next week, on whether or not it will reconsider its decision last month to deny him parole.

In 1990, Mr. Gillispie was charged with the rape of three women, in a cold case from 1988. The only evidence purportedly linking him to the crime was a set of identifications by the victims that flowed from a gravely flawed police procedure, in which police clearly suggested to the witnesses that Mr. Gillespie was the man they should pick. His face was larger in the frame than anyone else in the lineup. His face was against a yellow background on photo paper with a matte finish, whereas the other members of the lineup appeared against blue backgrounds on glossy paper. "Gillispie's photo was all but circled and starred," leaving no question in the minds of the witnesses who the investigating officer wanted them to ID. Following the well-crafted cues, all three witnesses selected Mr. Gillespie as the perpetrator, and despite the absence of any forensic or other corroborating evidence, the eyewitness testimony was sufficient to get Mr. Gillispie convicted by two juries.

Several key details about the attacker's description conflicted with Gillispie's actual traits, to such a degree that the original investigating officers ruled him out as a suspect on those grounds alone. His hair was a different color, he had pale skin instead of a dark tan, thick chest hair as opposed to none, and a thick Kentucky accent where the perpetrator did not. Yet almost certainly because of the manner in which the lineup was constructed, Gillispie was selected by all three witnesses.

Also of note is the fact that there is another man from the same area -- an ex-prison guard -- who fits the original description of the attacker to every detail, including his height, weight, hair color, and his "commanding voice." Further, the man who Gillespie's attorneys believe should have been the prime suspect appeared to betray knowledge about the case, without any cues from the attorneys -- he repeatedly referred to the "ladies," without any mention having been made of multiple victims. The same man was arrested for a similar crime in 1990, but was released when the complaining witness failed to cooperate. Mr. Gillispie had a clean record up until this unfortunate turn of events.

Mr. Gillispie continues to maintain his innocence 16 years later, despite his knowledge that an admission of guilt might get him an earlier parole. Weighed against his 16 years in an Ohio state prison, in his own words, "Sometimes I wonder if death ain't better."

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