Monday, July 30, 2007

Mecklenburg and The Big Picture

I agree with Ben. It just isn't right that, faced with a fight between prosecutors and scientists over a purely scientific issue, a respected newspaper looks at the dispute and basically calls it a draw. But I want to make sure we don't get too discouraged over this development. It seems to me that this story is just a fairly extreme example of the media's need to find two conflicting viewpoints, present them both no matter what the objective merit, and let readers decide where the "truth" lies without further explanation.

"Scientists: Earth is round. Prosecutors: Earth is flat. Media: Time will tell who's right. "

There is a bigger picture here, though, and it's important not to miss it. A study like the Mecklenburg Report, which cost lots of money, got huge publicity and was supported by powerful interests, could have set the reform movement back many years, or killed it altogether. The response could easily have been delay, confusion, disappearing resources, and a strengthening of resolve against reforms. Some suspect that that was precisely the goal of Mecklenburg, since it clearly wasn't designed to create any usable scientific data.

In the short term, of course, Mecklenburg did succeed in setting back reform -- as some of the quotes from the Tribune story make painfully clear. But that, fortunately, was not the end of the story or anything close. In the long run, Mecklenburg did not kill the reform movement, and it did not even set it back very far because of the remarkable response of the scientific community. In fact, in many ways the Mecklenburg report strengthened the hand of reformers.

The Mecklenburg Report was released only a little more than a year ago. In that time, scientists from around the country (many of whom are new to the field) have reviewed its results, discredited them, and repudiated them. In other words, in a very short time, Mecklenburg has created more awareness of the identification research and, after much scrutiny, more recognition of its scientifically-rigorous underpinnings. The controversy has also spurred a host of field studies that, because of the serious protocols, will create good, usable data -- data that can be used to make procedures better and to figure out if there are principles that do or do not translate from the lab to the field. Absent Mecklenburg, it is hard to imagine these studies coming into being so quickly, and their results will answer a question that, Mecklenburg or not, would have always been used to critique the lab results -- namely, the question of whether the laboratory results can translate into real world procedures.

This is all for the good. Although we already have field studies and real-world results that support many of the reforms, its always better to know more, particularly when we can know more quickly. Because of the resources and attention Mecklenburg has focused on the issue, we will in very short order have more good scientific results from the field. Those results will then inform the progress of which procedures to reform and how, and their existence will take away from the skeptics their current refrain about Mecklenburg being the "only" field study that has attempted to determine how reforms work in the real world. Those reports will prevent anyone's ability to delay longer by seeking field studies or the results from field studies.

It's highly unlikely that the goal of the Mecklenburg report was to highlight the rigorous nature of eyewitness identification science. It's also unlikely that anyone anticipated a response to Mecklenburg that was this fast, this focused or this rigorous. But it's looking like that will be the result, and that very soon there will be no lingering questions about whether and how the scientific principles work in the real world.

The media might say that only time will tell. My money is on the science.

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Lipstick on a Pig, Part Deux: Scientists vs. Prosecutors

We reported recently that the so-called "Illinois Report" on lineup procedures was found to be unscientific, unreliable, and generally adds no value to the dialogue on the most accurate and reliable police lineup procedures. Today, the Chicago Tribune is running a story, in the wake of the definitive debunking (PDF) of that police-sponsored report from Chicago, suggesting that the best lineup format has yet to be identified.

Two problems with this characterization strike me with equal force. The first problem is that the "disagreement" is one of conflicting agendas, not unresolved questions of science. Scientists, with their well-known bias in favor of facts, are in general agreement that sequential lineup procedures are less likely to put innocent people in prison. Every peer reviewed study on the topic bears out this finding. A meta-analysis (PDF) was conducted by leading psychologists to extrapolate the comparative accuracy rates of the two types of procedures, and the clear finding was that sequential lineups are far less likely to result in an innocent person being identified. When "moderator variables" are considered, the two methods are also largely equivalent in their likelihood of bringing about a correct selection of the actual perpetrator, when he is present in the lineup. The general consensus among scientists is that "sequential lineups are superior."

To the extent that there is disagreement on this point, it is not a disagreement among scientists or any sort of conflict in empirical findings. Rather, it is an objection by prosecutors at the audacity of scientists who dare to suggest that science should inform criminal justice policy. After all, the Chicago Police Department has been doing lineups for decades. Who are these scientists to tell them their procedures are flawed? It's like a bunch of M.D.s telling cigarette manufacturers that smoking causes cancer.

So the Illinois Report manages yet again to avert attention from the uncontroverted findings of social scientists, namely that sequential lineups are less likely to result in wrongful convictions. To characterize the status of the debate as "not yet resolved" is to fall prey to the prosecutorial agenda to resist reform at any cost; it's tantamount to concluding that the smoking/cancer link has yet to be established because Philip Morris executives find that fact to be in conflict with their profit motive. Except that it's a little less clear what interest is being protected by the prosecutors who resist lineup reforms, since presumably they share the interest in prosecuting actual criminals, while protecting the innocent.

The other problem with the Chicago Tribune's framing of the debate on lineup reform is the myopia with respect to the simultaneous-vs.-sequential question. The fact is, the recommendation that lineups be presented one person at a time rather than all at once is a single bullet point amongst a long list of recommendations to make lineup procedures more reliable. To borrow some words from eyewitness researcher Gary Wells:

[L]et's not become myopic because of the sequential lineup. Let’s not forget that we need to institute a broad range of improvements to lineup procedures that make the terms "biased procedure" and "motions to suppress based on suggestive procedures" mere memories from the past. I continue to be amazed as to why prosecutors are not at the forefront of this effort to jettison suggestive procedures. Do prosecutors like to have these "motion to suppress identification" hearings? Of course not. Would not prosecutors prefer to have cleaner identifications to carry forward to trial? Of course they would. Are prosecutors at the forefront of efforts to: (1) improve instructions to witnesses, (2) select better fillers for lineups, (3) implement procedures that eliminate influence from the lineup administrator, (4) assess eyewitness certainty in an unbiased manner, (5) make sure that full records are kept? The answers are (1) no, (2) no, (3) no, (4) no, (5) no. I apologize to my prosecutor friends in Clinton, Iowa, in New Jersey, and in other places who are clear exceptions to this characterization of prosecutors not assuming leadership roles on identification issues. Still, the failure of law enforcement to significantly improve their lineup procedures is primarily because prosecutors have not pressed for these improvements.

With 27 wrongful convictions revealed by the Innocence Project in Illinois alone -- 19 of which resulting from faulty eyewitness evidence -- you'd think Illinois prosecutors would be eager to put themselves at the forefront of the reform effort, rather than fighting tooth-and-nail to preserve status quo procedures with a long track record of failure.

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Wednesday, July 25, 2007

New Lineup Rules Pass in NC

With the passage of the Eyewitness Identification Reform Act earlier this week, police across North Carolina are now required to adhere to certain best practices with respect to lineup procedures, which have been shown to reduce the likelihood that innocent people will be identified from a lineup.

The reform measures include "blind" administration of lineups, where someone not connected to the case who doesn't know which person is the suspect will be required to conduct the lineup, to prevent that person's knowledge from sending inadvertent cues to the witness. Lineups must also be conducted sequentially (one photo at a time) as opposed to simultaneously, which has been shown to reduce the problem of "relative judgments," where witnesses have been observed to pick the person who looks "most like" the culprit from the group, even when, in many cases, that person is innocent. Sequential presentation of lineup members has been shown to reduce guessing in general, which is thought to be a primary cause of eyewitness-related wrongful conviction.

Under the new legislation, lineup administrators in North Carolina will also be required to take confidence statements from witnesses, in their own words, immediately following an ID. Administrators are also prohibited from giving any feedback or making comments of any kind prior to recording that confidence statement, in order to reduce the likelihood that the witness's confidence will be distorted by intervening influences.

Lineups in North Carolina must also be videotaped whenever practical, and when not, an explanation must be documented, in addition to rigorous detail relating to the lineup procedure itself, including retention of the photographs themselves in photo lineups, the source of the photos, the identities of the individuals, and any words used by the witness to describe an identification.

Remedies for noncompliance include, at the court's discretion, suppression of ID evidence at trial, as well as jury instructions on the effect of noncompliance on the reliability of identification evidence.

The findings of the General Assembly are also interesting:

(1) Throughout the nation and in North Carolina innocent people have been accused or convicted of serious crimes because of mistaken eyewitness identification.

(2) Mistaken lineup identifications distract law enforcement agencies from apprehending perpetrators.

(3) Reports of the United States Department of Justice, the American Bar Association, 25 years of peer‑reviewed scientific research, and the experiences of practitioners across the country indicate that the accuracy of eyewitness identification can be greatly enhanced by the use of "blind" administrators, instructions to the witness, confidence statements, and the proper composition of lineups.

The text of the bill is here. More media coverage here.

As North Carolina joins the growing list of states adopting similar legislation, it is becoming increasingly clear that lawmakers are running out of patience for remedying the wrongful conviction problem. Let's hope states like Georgia will be quick to follow suit, despite Georgia and other states' prosecutors' continued resistance to practical measures that are demonstrated to reduce the conviction of innocents.

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Monday, July 23, 2007

Two New Studies Conclude: Faulty IDs Caused "Thousands" Of Wrongful Convictions

The New York Times reported this weekend that two new studies have looked closely at the wrongful conviction epidemic, and have concluded that there are literally thousands of people serving sentences in prison for crimes they did not commit.

The first, "Judging Innocence", is soon-to-be-published in the Columbia Law Review, conducted by University of Virginia Professor Brandon Garrett. Professor Garrett's study systematically examined all of the DNA exonerations and concluded that "the leading cause of the wrongful convictions was erroneous identification by eyewitnesses, which occurred 79 percent of the time. In a quarter of the cases, such testimony was the only direct evidence against the defendant." Other leading causes of wrongful convictions were faulty forensic evidence, unreliable snithc testimony and false confessions.

As the Times reports, Professor Garrett's study also "strongly suggests . . . that there are thousands of people serving long sentences for crimes they did not commit but who have no hope that DNA can clear them." This suggestion is based on the fact that so many DNA exonerations have occurred despite the fact that DNA evidence onlly exists in a small subset of cases.

The second forthcoming study, by Professors Samuel Gross at Michigan Law School and Barbara O'Brien of Michigan State, reached similar conclusions. Specifically, the Michigan study concluded:

"The main thing we can safely conclude from exonerations is that there are many other false convictions that we have not discovered," the Michigan study said. "In addition, a couple of strong demographic patterns appear to be reliable:

Black men accused of raping white women face a greater
risk of false conviction than other rape defendants; and young suspects, those under 18, are at greater risk of false confession than other suspects."

One other important point from the studies: "The courts performed miserably in ferreting out the innocent." Among other things, that really needs to change, and reforming ID procedures is one way to make it happen.

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Sunday, July 22, 2007

Troy Davis Case Spotlights Eyewitness Fallibility, Drives Georgia Reform Effort

The Atlanta Journal-Constitution has a story today on the fallibility of eyewitness testimony, in connection with the ongoing Troy Davis case. The article highlights the systemic problem of wrongful convictions resulting from faulty eyewitness testimony, including all six DNA exonerations in Georgia over the last eight years, all of which resulted from inaccurate eyewitness evidence.

To explore the laundry list of problems with the eyewitness evidence in Mr. Davis' case, the defense team hired cognitive psychologist and eyewitness expert Dr. Jeffrey Neuschatz. Needless to say, he "found numerous concerns with the identification of Davis as the man who fatally shot Officer Mark Allen MacPhail in a Burger King parking lot on a summer night in Savannah."

Whether or not Neuschatz's analysis will be enough to sway the Board of Pardons and Paroles to permanently stay Mr. Davis' death sentence remains an open question.

Neuschatz's report has been filed with both the parole board and in Davis' court appeals for a new trial. Neuschatz analyzed the eyewitness identifications using contemporary standards to determine if there were flaws in the procedures used to implicate Davis.

Among other factors, Neuschatz highlighted issues present in the Davis case relating to the "mugshot effect (PDF) and the "weapon-focus" effect:

Neuschatz concluded that one witness, Dorothy Lee Ferrell, told police she had seen Davis' picture on the news as a suspect in MacPhail's slaying. "Prior exposure to the suspect's picture increases the likelihood that the suspect will be picked out of the lineup," Neuschatz wrote.

Neuschatz also made other observations, including: When a weapon is involved in a crime, witnesses tend to focus on it, rather than the suspect; the passage of time, in many cases 10 days, between the crime and the identification of Davis. Another witness testified that he had been drinking on the night of the shooting.

The Davis case has also given momentum to an ongoing effort to reform police procedures in Georgia relating to the collection of eyewitness evidence. Following the sixth DNA exoneration in Georgia earlier this year, by which Willie Williams was released from prison after serving 21 years for a rape he didn't commit, state Rep. Stephanie Stuckey Benfield (D-Atlanta) attempted to get a bill passed that would have required Georgia police to use procedures that have been demonstrated to make eyewitness evidence more reliable. Predictably, prosecutors fought the legislation, and for now, managed to win the day.

Despite the legislative loss, House Speaker Glenn Richardson supports the reforms, and appointed Rep. Benfield to chair a committee to investigate the connection between flawed police identification procedures and the systemic wrongful conviction problem in the state. Hearings are scheduled for the fall, where Barry Scheck of the Innocence Project, among others, is expected to testify.
The Georgia Innocence Project, which has played a role in three of the state's exonerations, is promoting lineup standards.

"In all six of those [Georgia] cases, the victims, and sometimes witnesses as well, incorrectly identified the attackers," said Lisa George, spokeswoman for the project. "It's not that these victims or witnesses were lying; it's just that they got it wrong. Human memory is extremely fallible."

Predictably, Rick Malone, executive director of the Prosecuting Attorneys' Council of Georgia, said "prosecutors don't object to better standards for lineups, but they don't want them codified into state law." In other words, Georgia prosecutors support preventing the conviction of innocent people in theory, just not in practice.

Fortunately, cases like those of Mr. Davis and Mr. Williams are driving the effort to reform police procedures that are unmistakably linked to mistaken eyewitness testimony, and inform those procedures with well-settled scientific findings that reveal a better, more reliable methodology that is less likely to distort the memories of well-meaning witnesses. It's time for Georgia prosecutors to catch up, and stop standing in the way of efforts to keep innocent people out of prison.

In related news, check out Emory Law School's new project to Save Troy Davis, sponsored by their Indigent Criminal Defense Clinic.

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Friday, July 20, 2007

In the Pope's Own Words

We managed to obtain a copy of the Pope's letter (PDF) to Georgia Governor Sonny Perdue, calling for the commutation of Troy Davis' death sentence, in light of "strong claims of innocence," including now-recanted eyewitness testimony that appears to have resulted from police coercion.

More from the letter:

This particular case is all the more disturbing inasmuch as the public record indicates that most of the "witnesses" have recanted their testimony, alleging that their statements were coerced; Mr. Davis' conviction was not based on any physical evidence and the murder weapon was never found. While I am certain that these facts have been presented to you, I reiterate them so as to underscore that this is a case which merits very special consideration. It is deeply troubling taht the State of Georgia might proceed with this execution, given the lack of evidence and the strong claims of innocence in this particular case.

Read it for yourself. Click below.

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Pope's Letter Questions ID Evidence

Following up on Ben's post, it appears that the Pope's letter didn't just ask for Mr. Davis' life to be spared but also observed, as the Atlanta Journal Constitution pointed out only a few moments ago in its most recent update to the story, that "Davis' pending execution is "disturbing" given that many witnesses have come forward to say that their testimony implicating Davis was false, and that other witnesses have come forward to identify another man as the killer."

In other words, the Pope apparently expressed concerns about the reliability of the underlying evidence in the case -- that is, the eyewitness testimony. This is unusual. As Richard Dieter of the Death Penalty Information Center in Washington pointed out, "the Catholic Church doesn't usually go into details of the case, as it did in Davis.'"

The bottom line: The Pope = Infallible. Eyewitness ID Evidence = Not infallible.

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The POPE Calls on Georgia to Spare Troy Davis

The Pope himself has formally called on the state of Georgia to spare Troy Davis from his death sentence.

The Vatican delivered a letter to Governor Sonny Perdue on Monday, the same day Mr. Davis's stay was granted.

"In the name of Pope Benedict XVI, I am respectfully asking you to commute Troy's sentence to life in prison without parole," wrote Monsignor Martin Krebs, the office's charge d'affaires.

Meanwhile, the Board of Pardons and Parole is considering the new evidence presented to it, and in their own words:
Scheree Lipscomb, a spokeswoman for the board, said it has received thousands of letters from Davis supporters, including U.S. Rep. John Lewis, a civil rights icon, and it will treat the pope's letter like all others. She said the board is aware of the letters, but its responsibility is to review the facts in the case.

Hopefully they will consider the fact that the Pope and everyone outside of the Georgia DA's office agrees that refusing to commute Mr. Davis's sentence would be a serious miscarriage of justice.

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Monday, July 16, 2007

Troy Davis Granted 90-Day Stay

Great news: Troy Davis was just granted a 90-day stay of his death sentence, averting his execution scheduled for tomorrow night. The Pardon and Parole Board reached their decision to stay the execution after less than an hour of deliberation. Hopefully a more sensible solution will be reached over the next months and Mr. Davis can, for the first time, exercise his right to a fair trial.

More coverage at MSNBC and the Washington Post.

UPDATE: Press Release from the Parole and Pardon Board is here, and the order granting the stay is here (PDF). The order states, among other things, that:

The members of the Georgia Board of Pardons and Paroles will not allow an execution to proceed in this State unless and until it is convinced that there is no doubt as to the guilt of the accused.

For the record, that makes the Georgia standard for execution a higher standard, even, then beyond a reasonable doubt.

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Will Georgia kill an innocent man tomorrow night?

More press coverage of the Troy Davis, the day before his scheduled execution.

Time Magazine: Will Georgia kill an innocent man?

And the Atlanta Journal Constitution, with a transcript of Congressman John Lewis's testimony at the Parole and Pardon Board hearing this morning, which starts off:

Good morning, Chairperson Hunt and members of the State Board of Pardons and Paroles.

It is a privilege to address you today, and I want to thank you for hearing me. I will not speak long, because what I have to say is very simple. I do not know Troy Anthony Davis. I do not know if he is guilty of the charges of which he has been convicted. But I do know that nobody should be put to death based on the evidence we now have in this case.

Evidence that is dramatically different from what the jury heard. Evidence that I understand no court has ever considered, for technical reasons that have nothing to do with the truth.

And from the Guardian: Death of an Innocent, Georgia Style

Mr. Davis's website and how you can help here.

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Sunday, July 15, 2007

Update and Press Coverage of Troy Davis Case

AP has picked up the story of Troy Davis, the Georgia man on death row for a murder he maintains he did not commit. His lawyers filed a motion last week seeking a new trial, based on sworn affidavits by witnesses from the 1991 trial who now say they lied due to police coercion when they testified against Mr. Davis. The motion was denied, and defense lawyer Jason Ewart planned to appeal that ruling Friday night. A clemency hearing is set for Monday morning, before the GA Board of Pardons and Paroles.

More Georgia press coverage here. Click here to send a letter to the GA Board of Pardons and Paroles to urge them to stay Mr. Troy's execution, scheduled for Tuesday night.

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Wednesday, July 11, 2007

Innocence on Georgia Death Row?

Troy Anthony Davis is currently on death row in Georgia, for a 1991 murder conviction based exclusively on eyewitness testimony. There is no physical evidence connecting Mr. Davis to the crime. Since the trial, all but two of the government's non-police witnesses have recanted their testimony incriminating Mr. Davis, many citing police coercion in sworn affidavits, (PDF) including threats of charges against the witnesses themselves if they refused to implicate Mr. Davis in sworn statements. No murder weapon was ever found.

In the words of one "witness" whose testimony was relied upon at trial:

"I kept telling them that I didn’t know. It was dark, my windows were tinted, and I was scared. It all happened so fast. Even today, I know that I could not honestly identify with any certainty who shot the officer that night."
"After the officers talked to me, they gave me a statement and told me to sign it. I signed it. I did not read it because I cannot read."

And another:
"I nodded and repeated what they said, whether it was true or not.... I am not proud for lying at Troy’s trial, but the police had me so messed up that I felt that’s all I could do or else I would go to jail."

Summaries of the recanted witness testimony are here. Nine other individuals have issued sworn affidavits implicating another man as the culprit.

Amnesty International has signed on to Mr. Davis's cause, and has issued a detailed report on his case. AI asks supporters to send letters to the State Board of Pardons and Paroles in Georgia, urging that his death sentence be commuted. All avenues of judicial relief have been exhausted, and Mr. Davis is scheduled for execution on July 17.

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Tuesday, July 10, 2007


Approximately a year ago, a highly-publicized study out of Illinois claimed to have raised questions about some of the procedural reforms being adopted around the country to improve the handling of eyewitness evidence. The study, taking the form of a pilot project spearheaded by Chicago police across three counties, purported to reveal that current identification procedures protected against mistaken identifications better than reforms (PDF) proposed by respected social scientists, based on extensive research on eyewitness memory. In other words, the Chicago police were happy to report that, notwithstanding the 19 wrongful convictions recorded in Illinois that resulted from faulty eyewitness evidence, everything was just fine and no pesky (scientific) reforms were needed.

Despite the fact that the "report" trumpeting the study was never subjected to peer review, and despite the fact that it was authored by a lawyer for by the very same Chicago police department that had fought reforms in Illinois for many years, these "findings" were trumpeted on the front page of the New York Times and have since served as serious impediments to reform in Legislatures around the country.

But something seemed rotten in Illinois, since the study's results were at odds with the recommendations of nearly every scientist who had studied the issue and the methodology underlying the pilot project appeared something short of scientific. According to one article on the topic, "the design of the project contained so many fundamental flaws that it is fair to wonder whether its sole purpose was to inject confusion into the debate about the efficacy of sequential double-blind procedures and to thereby prevent adoption of the reforms." Leading eyewitness researcher Gary Wells described the study's methodology as "extremely problematic."

Bearing out these suspicions, a new analysis was released yesterday, in which a "Blue Ribbon" panel of social science luminaries concluded that the study was "crippled by a design flaw that made the study's conclusions a dangerous basis for shaping public policy." This scholarly article does a fine job of showing that the Illinois pilot project on eyewitness lineup procedures was a sham, and a scandalous waste of taxpayer dollars. On that point, six out of six respected scholars agree.

The panel now weighing in includes Nobel Laureate Daniel Kahneman of Princeton and Harvard Professor and author Daniel Schachter, and other eminent scholars across the social sciences. In their own words, (PDF) "the design [of the Illinois study] guaranteed that most outcomes would be difficult or impossible to interpret," and the study's fundamental flaw has "devastating consequences" with respect to its scientific merits.

The story of the Chicago ID report is, in other words, one that is sadly familiar these days. Facts are cooked to suit the theory. The cooked facts are then trumpeted to an uncritical media, and the public understandably gives its officials the benefit of the doubt. But sooner or later the truth comes out, as it did here when the Illinois "study" received the sort of critical scientific analysis that should have occurred all along. In fact, this was just the sort of scientific rigor that the Legislature ordered when it appropriated tax-payer funds to conduct the study in the first place.

We now know that the failure to heed the Legislature's guidance resulted in the waste of many taxpayer dollars and, at least as importantly, the waste of a critical opportunity to determine how to fix a system that is currently relying too heavily on demonstrably mistaken eyewitness testimony. As the scientists suggest, the failure of Illinois now means that we need to await the results of properly-conducted studies in other jurisdictions to obtain this information.

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Wednesday, July 4, 2007

A Bad ID, and Bad Law, in Louisiana

In a recent Louisiana bench trial, eyewitness ID expert Robert Shomer testified in front of a judge in the 21st Judicial District on a collection of factors tending to undermine the reliability of eyewitness evidence. The local press reports:

Had the robbery case been tried before a jury, rather than a judge alone, the testimony of the specialist in eyewitness identification would not have been allowed. Because the defendant had waived his right to a jury trial, the judge permitted the testimony of Robert Shomer, an experimental psychologist who has taught at Harvard and UCLA.

The ID in this case was a police procedure in which the cops showed the witness a photo lineup including five color photos and one in black and white. It shouldn't be hard to guess which one was the suspect, which one got picked, and which one ended up on trial and found guilty.

Though it didn't persuade the judge in this case, Shomer testified as follows:
For a picture lineup to be fair, the pictures must be presented in the same format and should match the initial description of the perpetrator to the same extent, he said.

Like a scientific study, a photo lineup should be presented in a double blind manner, he said. When the effectiveness of a drug is being studied, the nurse actually administering the drug shouldn’t know which patients are receiving the real drug and which are getting the sugar pills. That way, the nurse can’t, either consciously or accidentally, provide any indications to the patients, Shomer said.

In a photo lineup, the person showing the pictures to the witness shouldn’t know which photo is that of the suspect. Without intending to do so, a police officer might provide the witness with subtle clues as to which picture is that of the suspected person, Shomer said.

Unfortunately in this case, the judge was unable to get past the positive ID, notwithstanding the fact that it resulted from an unacceptably suggestive police procedure clearly calculated to induce the witness to pick their suspect.

There's no question in my mind that this sort of police misconduct should result in an exclusion of any identification evidence, even under the ill-conceived current due process standard of Manson v. Brathwaite. And defense attorneys have to keep pushing that the standard be applied with teeth until Manson is eventually revisited by the Supreme Court.

Until then, expert testimony would seem to be an important remedial measure to educate juries about the fallibility of eyewitness testimony and stave off wrongful convictions. Except in states like Louisiana -- and there are many states like Louisiana in this respect -- where the courts don't allow expert testimony in front of juries because they think the work of battalions of social scientists is common sense. This, despite clear evidence (PDF of poll of DC jurors) that it is far from common sense.

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