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.


RWS said...

After the judge convicted the defendant of "simple robbery" in a $360,000 bank robbery case, she gave him time served, and then cleared his record. Perhaps she was listening to my testimony after all.
Robert Shomer

Trial Lawyer said...

Or maybe the judge recognized that paid "experts" who tell us nothing more than what a juror of average intelligence already knows aren't worth the price of admission. Shomer and his ilk just try to get guilty defendant's off so they can keep getting paid. They are frauds and judges know it.

Ben Hiltzheimer said...

If your premise were true, namely that jurors understand the factors affecting eyewitness reliability as matters of common sense, then your first point would be perfectly valid. But here in DC, we polled our own jury pool to find out, and it's clear that they don't (PDF).

As for "getting guilty defendants off," are you not aware that over 200 people have been exonerated by DNA evidence since the Innocence Project started scouring old cases, and that the vast majority of those wrongful convictions resulted from faulty eyewitness testimony? I assume not, since your position is unsupported by actual empirical findings.