Innocent? Prove it.

Last I checked, the U.S. Constitution mandates that criminal defendants are presumed innocent, and guilt must be proven by the state. It may not say it in the plain text, but people who read the Constitution for a living swear it's floating around somewhere in the "penumbra" of the 5th, 6th, and 14th Amendments. In any case, the Supreme Court agrees. In fact, the presumption of innocence is "axiomatic and elementary." "[I]ts enforcement lies at the foundation of the administration of our criminal law."

There are several reasons for this, some of which are purely practical. One of these reasons is that it is no small feat to prove actual innocence. Another is that the average criminal defendant doesn't have the resources bestowed upon state and federal governments to cover court costs. So the burden of proof is on the party with the resources. This makes sense.

So why do innocent people have to prove their innocence in order to clear their records of false charges?

I came across a short editorial in the Sacramento Bee this morning arguing that they shouldn't, and I tend to agree. The editorial traces the story of Eric Warren, who spent 53 days in jail after being charged with a series of similar crimes in the area, following a phone tip and shaky other-race IDs by five witnesses. He maintained his innocence throughout, and a substantially similar crime was committed in the same area while he was locked up, suggesting someone else was behind all the crimes.

Ultimately Mr. Warren was released, after the eyewitness and other evidence quickly fell apart. Prosecutors admit to having "substantial doubts" about his connection to any of the crimes.

But,

If a mistake was made, what is the remedy for Warren? His family is out thousands of dollars in legal bills. Warren is out of jail, but he's not free from the effects of what appears to have been a false accusation. For example, if asked on a job application, "Have you ever been arrested?" must he answer "yes" -- a devastating admission for any job-seeker and particularly so for a young African American man? A declaration of "factual innocence" would officially expunge Warren's arrest record. But such a declaration requires Warren to petition the court himself, incurring yet more legal costs. That's unfair.

Not to mention extremely difficult. Even if the witnesses ultimately admit to being unable to make a reliable ID, that's still short of factual innocence. If Mr. Warren's only alibi is that he was at home sleeping at 4a.m. on the night of a particular crime, as most of the other innocent people in Sacramento likely were, he's going to be hard pressed to affirmatively prove that he wasn't out committing those crimes. Barring definitive DNA evidence, new eyewitnesses, or a confession by the actual perpetrator, Mr. Warren is left with an arrest record because the government made a mistake. The Sacramento Bee offers a better solution:

If a mistake, no matter how innocent, was made by witnesses, by police or by prosecutors, the system owes Warren an apology. A declaration of "factual innocence" is the one meaningful apology available to him. He should not have to pay for it.

Read more :: Permalink

"They may as well have made him wear a target on his chest or a sign over his head saying 'pick me,'" says US federal court

I just came across an interesting decision issued last month from the U.S. District Court for the Northern District of Illinois, in which the court considered (and rejected) eyewitness evidence in support of an extradition request by the Republic of Poland. In re Mazur, Slip Copy, 2007 WL 2122401 (N.D.Ill. 2007).

The evidence presented in support of the government's probable cause showing included a live lineup of four men. Three of the men were "dressed in dark, subdued colors, whereas Mr. Mazur is wearing a bright red, slightly oversized jacket" -- a jacket "foisted" on Mr. Mazur by the authorities "in an effort to make his dress look less formal." In the words of the district court, "They may as well have made him wear a target on his chest or a sign over his head saying 'pick me.'" The court went on to say that the ID procedure employed by Polish authorities "would never pass muster in this country," that the lineup was unduly suggestive and "highly suspect." It further found that "the government's reliance on this identification is shocking and offensive." Id. at *24.

If only our courts could save some of that disdain for the procedures routinely done by our own police.

Read more :: Permalink

When the DOJ Says It, Jurors Listen

A study was published a couple of years ago that tested juror reactions to information suggesting that police had failed to follow best practices in conducting eyewitness lineup procedures. (I haven't found the text online, but here's the cite: J.M. Lampinen et al., The reactions of mock jurors to the Department of Justice Guidelines for the collection and preservation of eyewitness evidence, 27 Basic and Applied Soc. Psychol. 155 (2005)).

The study used a set of mock trial transcripts, which were adapted from a real robbery case, in which a man was described as having robbed a convenience store while wearing a "makeshift" mask, and who told store employees that he had a gun and was "not afraid to use it." Three witnesses testified against the defendant -- one who claimed to have seen the perpetrator from about 40 feet away outside the store, as he removed his mask, a police officer who was inside the store during the robbery, and a friend of the defendant who testified that the defendant had a gambling problem and owed a lot of money, thereby establishing motive. The first witness selected the defendant from a photo array, after which charges were filed.

The researchers tested three different conditions, using the same facts -- in the first (control) condition, a trial transcript was provided to mock jurors including no mention of police errors in conducting the lineup procedure. In the second condition, two police errors relating to lineup procedures were mentioned, which were subsequently brought up by the defense. In the third, the same two police errors were mentioned, and the defense attorney not only highlights them, but also points out that they violate the Department of Justice Guide for Law Enforcement on Eyewitness Evidence (PDF). Aside from these modifications, the underlying transcripts were identical.

From the second condition:

Q. Officer Jacobs, I want to now ask you about the lineup which you showed to Ms. Wilcox.
A. Okay.
Q. Officer Jacobs, did you ever inform Ms. Wilcox that the culprit may or may not be in the lineup?
A. I don’t believe so.
Q. Don’t you believe it would have been a good idea to let the witness know that she didn’t have to pick somebody?
A. In my experience, things like that don’t make any difference.
Q. Officer Jacobs, Mr. Martinez has a mole on his left cheek, did any of the other photographs you showed Ms. Wilcox have a mole?
A. No.
Q. Aren’t you afraid that would make Mr. Martinez stand out?
A. No sir I wasn’t. In my experience, witnesses either recognize someone or they don’t.

And then from the condition in which the procedures used were contrasted with DOJ best practices:

Q. Officer Jacobs, I want to now ask you about the lineup which you showed to Ms. Wilcox.
A. Okay.
Q. Officer Jacobs, did you ever inform Ms. Wilcox that the culprit may or may not be in the lineup?
A. I don’t believe so.
Q. Don’t you believe it would have been a good idea to let the witness know that she didn’t have to pick somebody?
A. In my experience, things like that don’t make any difference.
Q. Officer Jacobs, are you familiar with the Department of Justice guidelines that were recently published entitled “Eyewitness Evidence: A Guide for Law Enforcement”?
A. I’ve heard of them.
Q. And are you aware that they state that the investigating officer should make clear to the witness that the culprit may or may not be in the lineup?
A. No I wasn’t.
Q. Alright Officer Jacobs, Mr. Martinez has a mole on his left cheek, did any of the other photographs you showed Ms. Wilcox have a mole?
A. No.
Q. Aren’t you afraid that would make Mr. Martinez stand out?
A. No sir I wasn’t. In my experience, witnesses either recognize someone or they don’t.
Q. I see, well were you aware, Officer Jacobs, that the Department of Justice guidelines state that the suspect should not stand out as being different from the
other members of the lineup?
A. No I wasn’t.

The same tactics were echoed in closing arguments.

The result?

Mock jurors in the DOJ condition (a) voted to convict at a lower rate, (b) rated the eyewitness as less credible, (c) rated the investigating officer as less professional, and (d) were more likely to opine that the investigating officer had thereby jeopardized the prosecution’s case.

Just as interesting was the fact that raising problems with the ID procedures on cross and again in closing produced no fewer convictions than the condition in which the errors were never mentioned at all.

The moral? Juries listen when they learn that police violated practices set forth by an authoritative source. They pay less mind when the source is a defense lawyer.

UPDATE: I should mention, as has been mentioned to me, that the results of this study should not be taken to invoke a sort of fatalism in those cases where introduction of the DOJ guidelines, or some other authoritative source, is not permitted or otherwise possible. A cursory look at the study shows that the second condition by no means involved a properly developed cross of a cop on a flawed ID procedure, and the lack of difference in conviction rate between the first two conditions should certainly not be taken to mean that it isn't worthwhile to wage a full scale attack on bad IDs, even when you can't get authoritative best practices in front of the jury. The silent lesson from the study might just be that your cross shouldn't look like the one in condition #2.

Read more :: Permalink

The Problem with Telfaire

The so-called "Telfaire instruction" (from U.S. v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972)) is the most commonly used jury instruction on eyewitness ID in U.S. courts, aimed at alerting jurors to the potential pitfalls of eyewitness evidence. Unfortunately, it is based directly on the flawed and outdated criteria for assessing the reliability of eyewitness evidence set forth in Neil v. Biggers in 1972, which was decided before the majority of eyewitness research now available was conducted, when the entire field was in its infancy. As a result, the instruction often backfires, causing jurors to rely even more heavily on shaky eyewitness testimony, rather than serving its intended purpose of sensitizing them to the factors that tend to make it unreliable.

It opens as follows:

Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? You may take into account both the strength of the identification, and the circumstances under which the identification was made.

Here's the first problem. When a judge instructs a jury to rely on the "strength of the identification," she asks them to consider the confidence of the witness in assessing his or her accuracy. Yet it is well-established among experts that a witness's confidence is "a dubious indicator of eyewitness accuracy even when measured at the time an identification is made." See, e.g., Steven Penrod & Brian Cutler, Witness Confidence and Witness Accuracy: Assessing Their Forensic Relation, 1 Psychol., Pub. Pol., & L. 817 (1995). According to the same article, the more emphasis that is placed on the Telfaire instruction, the more jurors tend to credit eyewitness testimony. That is, "the instruction produced a credulity rather than a skepticism effect." Id. at 833.

The Telfaire instruction continues:

You may also take into account that an identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness.

There's more trouble here. This is true if and only if the lineup is conducted in accordance with best practices, and given that rigid criteria are applied in adhering to the "similar" requirement. Lineup members can quite easily pass a broad interpretation of the "similar" test, by, for example, all belonging to the same race. But the requirements of a good lineup are far more subtle than a generic "similarity" requirement, which juries are not equipped to judge without insight from the research. And as Gary Wells has pointed out, a bad lineup can have the effect of pointing a giant finger at the suspect, while giving the witness heightened (though false) confidence because she "picked" him from a group.

The problems with Telfaire are apparent, and defense lawyers have been urging trial courts to abandon it for some time. As an alternative, researchers recommend detailed instructions that are informed by the findings of social scientists over the last 35 years, since the Biggers factors were identified by the Supreme Court with no scientific basis.

These tailored instructions should include, where applicable, instructions on the cross-race effect, the detrimental effects of stress on eyewitness memory, the weapon-focus effect, the absence of a reliable correlation between confidence and accuracy, and lineup procedures that have been shown to make an identification more or less reliable.

But scientifically accurate jury instructions are not enough. To properly sensitize jurors to the problems with eyewitness testimony and to begin to curb the nationwide wrongful conviction problem due to over-reliance on bad eyewitness evidence, expert testimony is critical. In fact, according to the recent Copeland ruling by the Supreme Court of Tennessee, expert testimony is the only reliable method to ensure that jurors have the necessary tools to assess eyewitness evidence accurately. State v. Copeland, 2007 WL 1498396, *11 ("Research over the past 30 years has shown that expert testimony on memory and eyewitness identification is the only legal safeguard that is effective in sensitizing jurors to eyewitness errors.").

It's time to stop misinforming juries based on the antiquated, unscientific musings of an old Court, and to start letting science into the courtroom at every phase of trial. The Constitution demands it, and the rights of the wrongfully accused depend on it.

Read more :: Permalink

GA Supreme Court Will Hear Troy Davis' Case; Original Jurors Urge New Trial

On Friday, the Georgia Supreme Court agreed to hear the appeal of Troy Davis, including new evidence of police coercion that undermines the eyewitness testimony that was the primary basis of his conviction.

Now, four jurors from Mr. Davis' original trial have come forward urging clemency and a new trial, in light of this new evidence that has come to public attention. Knowing what she knows now, one juror said that if Mr. Davis is executed, it will "haunt her until her own death." That juror and three others submitted sworn statements to the Georgia Board of Pardons and Paroles, urging them to avert this injustice.

Read more :: Permalink